Digital Economy Bill (HL Bill 122)

(10) For the title substitute “Disposal of appeals under section 192 against certain
decisions of Secretary of State”.

(11) In section 317 (exercise of Broadcasting Act powers for a competition purpose),
for subsection (7) substitute—

“(7) 5Sections 192(3) to (5), (7) and (8), 194A and 196 apply in the case of an
appeal under subsection (6) as they apply in the case of an appeal under
section 192(2).”

(12) The amendments made by this section do not apply in relation to appeals
against decisions made before this section comes into force.

10Regulation and functions of BBC

91 Functions of OFCOM in relation to the BBC

(1) The Communications Act is amended as follows.

(2) Section 198 (functions of OFCOM in relation to the BBC) is amended as follows.

(3) In subsection (1) for the words after paragraph (b) substitute—

15“to regulate the BBC.”

(4) After subsection (2) insert—

“(2A) The BBC Charter and Agreement may in particular confer on OFCOM,
as a power they are to have by virtue of subsection (2)(a), power to
require any person to provide information for the purposes of the
20carrying out by OFCOM of their function under subsection (1).”

(5) Omit subsection (9).

(6) After section 198 insert—

“198ZA Penalties for failure to provide information

(1) This section applies if—

(a) 25under a power conferred by virtue of section 198(2A), OFCOM
require a person other than the BBC to provide information, and

(b) OFCOM determine that there are reasonable grounds to believe
the person has not provided the information.

(2) OFCOM may give the person a notice which sets out the determination
30and specifies—

(a) what information the person must provide,

(b) the time within which the person must provide it,

(c) a penalty that OFCOM may impose if the person does not
provide it, and

(d) 35a period in which the person may make representations.

(3) OFCOM may impose a penalty on the person if they fail without
reasonable excuse to provide the information in accordance with the
notice.

(4) The penalty may include an amount for each day the person fails to
40provide the information after the time required by the notice.

(5) The penalty in respect of any notice—

(a) must not be more than OFCOM determine to be proportionate,

(b) must not be more than the penalty specified in the notice, and

(c) must not be more than £250,000.

(6) 5OFCOM may withdraw a notice without imposing a penalty, and that
does not affect the power to issue a further notice in relation to the same
information.

(7) OFCOM must publish and keep up to date a statement of their
proposed approach to issuing notices and imposing and recovering
10penalties under this section (subject to the guidelines published under
section 392).”

(7) The following cease to have effect—

(a) in Part 3 of Schedule 1 to the House of Commons Disqualification Act
1975 (offices disqualifying for membership), the entry relating to a
15chairman, vice-chairman or ordinary member of the BBC Trust);

(b) section 90A of the Scotland Act 1998 (BBC Trust member for Scotland);

(c) section 16 of the Scotland Act 2012 (which inserts section 90A of the
1998 Act);

(d) in section 77(2)(d) of the Deregulation Act 2015 (review of sanctions in
20relation to TV licensing), “and be presented to the BBC Trust”.

92 BBC Licence Fee Commission

(1) The Secretary of State must, by regulations made by statutory instrument, set
up an independent body (“the BBC Licence Fee Commission”).

(2) It is to be the duty of the BBC Licence Fee Commission to make a
25recommendation to the Secretary of State regarding the level of licence fee
required to fund the BBC for the purposes set out in the Royal Charter and
Agreement in respect of the settlement from 1 April 2022, and for each
successive settlement thereafter.

93 Duty of the Secretary of State to consult and lay recommendation before
30Parliament

(1) The Secretary of State must conduct a full public consultation on appropriate
levels of BBC funding.

(2) The Secretary of State must lay a report before each House of Parliament with
a recommendation as to an appropriate level of funding.

94 35Duty of the Secretary of State in determining funding settlement

(1) The Secretary of State is to determine the final settlement for BBC funding for
the period from 1 April 2022.

(2) In determining the final settlement, the Secretary of State must consider
whether or not to accept the BBC Licence Fee Commission’s recommendation
40and, if the Secretary of State decides to reject that recommendation, the
Secretary of State must publish the reasons for the rejection.

(3) In determining the final settlement, the Secretary of State must also take
account of—

(a) the views of the BBC Board;

(b) the results of the public consultation under section 93; and

(c) the need for effective fulfilment of the BBC’s mission and purposes
under the Royal Charter.

95 5TV licence fee concessions by reference to age

(1) The Communications Act 2003 is amended as follows.

(2) Section 365 (TV licence fees) is amended as follows.

(3) After subsection (1) insert—

“(1A) Liability to pay a sum under regulations under subsection (1) is subject
10to any concession applying in accordance with a determination by the
BBC under section 365A.”

(4) In subsection (4)(a) after “concession” insert “provided for by the regulations”.

(5) In subsection (5) for “The reference to a concession in subsection (4)” substitute
“A reference in this section or section 365A to a concession”.

(6) 15After subsection (5) insert—

“(5A) Regulations under this section may not provide for a concession that
requires the person to whom the TV licence is issued, or another
person, to be of or above a specified age, unless—

(a) the age specified is below 65, and

(b) 20the requirement is not satisfied if the person concerned is 65 or
over at the end of the month in which the licence is issued.

(5B) Subsection (5A) does not apply to—

(a) the concession provided for by regulation 3(d) of and Schedule
4 to the Communications (Television Licensing) Regulations
252004 (S.I. 2004/692) (accommodation for residential care), or

(b) a concession in substantially the same form.”

(7) After section 365 insert—

“365A TV licence fee concessions by reference to age

(1) For the purposes of section 365(1A) the BBC may determine that a
30concession in specified terms is to apply.

(2) Any concession under this section must include a requirement that the
person to whom the TV licence is issued, or another person, is of or
above a specified age, which must be 65 or higher, at or before the end
of the month in which the licence is issued.

(3) 35A determination under this section—

(a) may in particular provide for a concession to apply, subject to
subsection (2), in circumstances where a concession has ceased
to have effect by virtue of section 365(5A), but

(b) may not provide for a concession to apply in the same
40circumstances as a concession within section 365(5B).

(4) A determination under this section may include provision for the
means by which an entitlement to a concession must be established.

(5) A determination under this section—

(a) may make different provision for different cases (including
different provision in respect of different areas);

(b) may include transitional provision.

(6) 5A determination under this section—

(a) must be in writing;

(b) must be published in whatever way the BBC considers
appropriate.

(7) The BBC—

(a) 10may vary a determination by a further determination under this
section;

(b) may determine that a concession is to cease to apply (and
accordingly revoke a determination under this section).

(8) Before making, varying or revoking a determination the BBC must
15consult any persons it considers appropriate.”

Provision of children's programmes

96 Provision of children’s programmes

After section 289 of the Communications Act 2003 insert—

“Provision of children’s programmes

289A 20Provision of children’s programmes

(1) OFCOM may, if they think fit, publish criteria to be applied in
accordance with this section to the provision of children’s programmes.

(2) Where criteria are published by OFCOM, the regulatory regime for
every licensed public service channel includes the conditions that
25OFCOM consider appropriate for securing that the provision of
children’s programmes meets the criteria.

(3) Any condition imposed by virtue of this section—

(a) must relate only to the provision of children’s programmes on
the licensed public service channel concerned;

(b) 30must take into account OFCOM’s assessment of the provision of
children’s programmes on all related services.

(4) “Related services” in relation to a Channel 3 service means—

(a) that service,

(b) all other Channel 3 services, and

(c) 35all services within subsection (6) that appear to OFCOM to have
a sufficient connection with any Channel 3 service.

(5) “Related services” in relation to any other licensed public service
channel means—

(a) that channel, and

(b) 40all services within subsection (6) that appear to OFCOM to have
a sufficient connection with that channel.

(6) A service is within this subsection if—

(a) it is available for reception in the United Kingdom, and

(b) it is provided without any consideration being required for its
reception, disregarding any requirement to pay sums in
5accordance with regulations under section 365.

(7) For the purposes of an assessment under subsection (3)(b) no account
is to be taken of whether a programme is provided on a licensed public
service channel or on another service.

(8) Any condition imposed by virtue of this section must be the same for
10all regional Channel 3 services.

(9) Any criteria published under this section must be published by
OFCOM in a statement setting out the criteria and how they propose to
apply them.

(10) OFCOM may from time to time review and revise or withdraw the
15criteria by publishing a further statement.

(11) Where OFCOM revise or withdraw criteria, they must take any steps
they consider necessary in consequence in relation to conditions
imposed by virtue of this section.

(12) OFCOM must—

(a) 20carry out a public consultation for the purposes of any review
under subsection (10);

(b) where there are no published criteria for the time being, carry
out a public consultation before publishing criteria under this
section.

(13) 25In this section “children’s programme” means a programme made—

(a) for a television programme service or for an on-demand
programme service, and

(b) for viewing primarily by persons under the age of sixteen.”

OFCOM powers relating to criminal content etc

97 30Suspension of radio licences for inciting crime or disorder

(1) In Chapter 2 of Part 3 of the Broadcasting Act 1990 (sound broadcasting
services), for section 111B (power to suspend licence to provide satellite
service) substitute—

“111B Suspension of licences for inciting crime or disorder

(1) 35OFCOM must serve a notice under subsection (2) on the holder of a
licence granted under this Chapter if they are satisfied that—

(a) the licence holder has included in the licensed service one or
more programmes containing material likely to encourage or
incite the commission of crime or to lead to disorder,

(b) 40in doing so the licence holder has failed to comply with a
condition included in the licence in compliance with section 263
of the Communications Act 2003, and

(c) the failure would justify the revocation of the licence.

(2) A notice under this subsection must—

(a) state that OFCOM are satisfied as mentioned in subsection (1),

(b) specify the respects in which, in their opinion, the licence holder
has failed to comply with the condition mentioned there,

(c) 5state that OFCOM may revoke the licence after the end of the
period of 21 days beginning with the day on which the notice is
served on the licence holder, and

(d) inform the licence holder of the right to make representations to
OFCOM in that period about the matters that appear to
10OFCOM to provide grounds for revoking the licence.

(3) The effect of a notice under subsection (2) is to suspend the licence from
the time when the notice is served on the licence holder until either—

(a) the revocation of the licence takes effect, or

(b) OFCOM decide not to revoke the licence.

(4) 15If, after considering any representations made to them by the licence
holder in the 21 day period mentioned in subsection (2)(c), OFCOM are
satisfied that it is necessary in the public interest to revoke the licence,
they must serve on the licence holder a notice revoking the licence.

(5) The revocation of a licence by a notice under subsection (4) takes effect
20from whatever time is specified in the notice.

(6) That time must not be earlier than the end of the period of 28 days
beginning with the day on which the notice under subsection (4) is
served on the licence holder.

(7) Section 111 does not apply to the revocation of a licence under this
25section.”

(2) In section 62(10) of the Broadcasting Act 1996 (application of sections 109 and
111 of the 1990 Act to digital sound programme services) for the words from
“section 109” to “1990 Act” substitute “sections 109, 111 and 111B of the 1990
Act (enforcement)”.

(3) 30In section 250(3) of the Communications Act 2003 (application of sections 109
to 111A of the 1990 Act to radio licensable content services) for “111A”
substitute “111B”.

98 Digital additional services: seriously harmful extrinsic material

After section 24 of the Broadcasting Act 1996 (digital additional services)
35insert—

“24A Duty to prevent access to seriously harmful extrinsic material

(1) In carrying out their functions, OFCOM must do all that they consider
appropriate to prevent digital additional services from enabling
members of the public to access seriously harmful extrinsic material.

(2) 40“Seriously harmful extrinsic material”, in relation to a digital additional
service, means material that—

(a) is not included in the service, and

(b) appears to OFCOM—

(i) to have the potential to cause serious harm, or

(ii) to be likely to encourage or incite the commission of
crime or lead to disorder.”

On-demand programme services

99 On-demand programme services: accessibility for people with disabilities

(1) 5The Communications Act 2003 is amended as follows.

(2) After section 368BB insert—

“Accessibility

368BC Accessibility for people with disabilities

(1) The Secretary of State may by regulations impose requirements on
10providers of on-demand programme services for the purpose of
ensuring that their services are accessible to people with disabilities
affecting their sight or hearing or both.

(2) The requirements that may be imposed include—

(a) requirements for programmes included in the services to be
15accompanied by subtitling;

(b) requirements for such programmes to be accompanied by
audio-description for the blind;

(c) requirements for such programmes to be presented in, or
translated into, sign language.

(3) 20The steps set out in subsections (4) to (6) must be taken before
regulations are made under this section.

(4) The Secretary of State must ask the appropriate regulatory authority to
consult such persons as appear to the authority likely to be affected by
regulations under this section, including—

(a) 25providers of on-demand programme services, and

(b) representatives of people with disabilities affecting their sight
or hearing or both.

(5) The appropriate regulatory authority must inform the Secretary of
State of—

(a) 30the outcome of the consultation, and

(b) any other matters that they think should be taken into account
by the Secretary of State for the purposes of the regulations.

(6) Where OFCOM are not the appropriate regulatory authority, the
Secretary of State must consult OFCOM.

(7) 35A statutory instrument containing regulations under this section may
not be made unless a draft of the instrument has been laid before and
approved by a resolution of each House of Parliament.

368BD Enforcement of regulations under section 368BC

(1) Where the appropriate regulatory authority determine that a provider
40of an on-demand programme service is contravening or has

contravened regulations under section 368BC, they may do one or both
of the following—

(a) give the provider an enforcement notification under this
section;

(b) 5impose a penalty on the provider in accordance with section
368J.

(2) The appropriate regulatory authority must not make a determination
as mentioned in subsection (1) unless there are reasonable grounds for
believing that a contravention of the regulations is occurring or has
10occurred and they have allowed the provider an opportunity to make
representations about that apparent contravention.

(3) An enforcement notification under this section is a notification which
specifies the determination made as mentioned in subsection (1) and
imposes a requirement on the provider to take all such steps for
15complying with the regulations and for remedying the consequences of
the contravention of the regulations as may be specified in the
notification.

(4) An enforcement notification must—

(a) include reasons for the appropriate regulatory authority’s
20decision to give the enforcement notification, and

(b) fix a reasonable period for taking the steps required by the
notification.

(5) It is the duty of a provider to whom an enforcement notification is
given to comply with it.

(6) 25That duty is enforceable in civil proceedings by the appropriate
regulatory authority—

(a) for an injunction,

(b) for specific performance of a statutory duty under section 45 of
the Court of Session Act 1988, or

(c) 30for any other appropriate remedy or relief.

(7) If a provider to whom an enforcement notification has been given does
not comply with it within the period fixed by the appropriate
regulatory authority in that enforcement notification the appropriate
regulatory authority may impose a financial penalty on the provider in
35accordance with section 368J.”

(3) In section 368C (duties of the appropriate regulatory authority), omit
subsection (2).

(4) After that section insert—

“368CA Code on accessibility for people with disabilities

(1) 40It is the duty of the appropriate regulatory authority to draw up, and
from time to time review and revise, a code giving guidance as to—

(a) the steps to be taken by providers of on-demand programme
services so as to meet the requirements of regulations under
section 368BC, and

(b) 45other steps to be taken by providers who are subject to
requirements under the regulations to ensure that their services

are made progressively more accessible to people with
disabilities affecting their sight or hearing or both.

(2) The appropriate regulatory authority must publish the code drawn up
under this section, and every revision of it, in such manner as, having
5regard to the need to make the code or revision accessible to—

(a) persons who are deaf or hard of hearing,

(b) persons who are blind or partially sighted, and

(c) persons with a dual sensory impairment,

they consider appropriate.”

(5) 10In section 368J(1) (financial penalties), after “368BB” insert “, 368BD”.

(6) In section 368K(1) (suspension or restriction of service for contraventions)—

(a) in paragraph (a), after “368D” insert “, or of regulations under section
368BC”,

(b) in paragraph (b)—

(i) 15after “368D” insert “or the regulations”, and

(ii) for “or 368I” substitute “, 368I or 368BC”.

(7) In section 368O(2)(a) (power to demand information), after “368D” insert “, or
of regulations under section 368CA,”.

(8) In section 402(2)(a) (procedure for statutory instruments) after “411” insert “or
20regulations under section 368BC”.

100 On-demand programme services: specially restricted material

(1) Section 368E of the Communications Act 2003 (restrictions on harmful material
contained in on-demand programme services) is amended as follows.

(2) In subsection (5), after paragraph (b) omit “or”.

(3) 25In that subsection, after paragraph (c) insert—

“(d) a video work—

(i) in respect of which the video works authority has issued
an 18 certificate, and

(ii) whose nature is such that it is reasonable to assume that
30its principal purpose is to cause sexual arousal, or

(e) material whose nature is such that it is reasonable—

(i) to assume that its principal purpose is to cause sexual
arousal, and

(ii) to expect that, if the material were contained in a video
35work submitted to the video works authority for a
classification certificate, the video works authority
would issue an 18 certificate.”

(4) In subsection (6), after “(5)(b)” insert “or (e)”.

(5) In subsection (7), after the definition of “the 1984 Act”, insert—

• 40““18 certificate” means a classification certificate which—

  (a)

  contains, pursuant to section 7(2)(b) of the 1984 Act, a
  statement that the video work is suitable for viewing
  only by persons who have attained the age of 18 and that
  no video recording containing that work is to be

  Digital Economy BillPage 109

   

  supplied to any person who has not attained that age,
  and

  (b)

  does not contain the statement mentioned in section
  7(2)(c) of the 1984 Act that no video recording
  5containing the video work is to be supplied other than in
  a licensed sex shop;”.

Public sector broadcasting prominence

101 Public sector broadcasting prominence

(1) The Communications Act 2003 is amended as follows.

(2) 10In the title of section 232, at end insert “and “electronic programme guide””.

(3) After section 232(5) insert—

“(5A) In this section “electronic programme guide” means a service which
consists of a—

(a) linear electronic programme guide; or

(b) 15qualifying connected electronic programme guide.”

(4) In section 232(6) before “electronic” insert “linear”.

(5) In section 232(6)(b) after “for” insert “finding, selecting or”.

(6) After section 232(6) insert—

“(7) In this section “qualifying connected electronic programme guide”
20means a “connected electronic programming guide” which is used by a
significant number of its intended audiences as a means of receiving
television programmes or TV-like content.

(8) In this section “connected electronic programming guide” means a
service which consists of—

(a) 25the listing or promotion, or both the listing and the promotion,
of some or all of the programmes included in any one or more
programme services the providers of which are or include
persons other than the provider of the guide; and

(b) the listing or promotion, or both the listing and the promotion,
30of—

(i) some or all of the programmes included in any one or
more on-demand programme services, or

(ii) some or all of the on-demand programme services, the
providers of which are or include persons other than the
35provider of the guide; and

(c) the facility for finding, selecting or obtaining access, in whole or
in part, to the programme service or services and the on-
demand programme service or services listed or promoted in
the guide.

(9) 40The Secretary of State may by order amend the definition of an
electronic programme guide in this section.

(10) Before making an order under subsection 9 the Secretary of State must
consult OFCOM.”