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(4) In this section “renewal period”, in relation to a licence, means the period for | |
which the licence is in force by reason of its renewal. | |
(5) Part 3 of Schedule 10 applies for construing this section as it applies for | |
construing that Schedule. | |
Reviews relating to licensing of Channels 3 & 5 and teletext | 5 |
219 Application for review of financial terms of replacement licences | |
(1) The holder of a replacement licence granted under section 210 or 216 may | |
apply to OFCOM, at any time in the first or second review period, for a review | |
of the financial terms on which that licence is held. | |
(2) For the purposes of this section the first review period is the period which— | 10 |
(a) begins four years before the first notional expiry date; and | |
(b) ends with the day before the day that OFCOM have determined to be | |
the one by which they would need to publish a tender notice if they | |
were proposing to grant a fresh licence to take effect from the first | |
notional expiry date. | 15 |
(3) For the purposes of this section the second review period is so much (if any) of | |
the following period as falls before 1st January 2014, namely, the period | |
which— | |
(a) begins four years before the second notional expiry date; and | |
(b) ends with the day before the day that OFCOM have determined to be | 20 |
the one by which they would need to publish a tender notice if they | |
were proposing to grant a fresh licence to take effect from the second | |
notional expiry date. | |
(4) A determination for the purposes of subsection (2)(b) or (3)(b) in respect of a | |
replacement licence— | 25 |
(a) must be made at least one year before the day determined; and | |
(b) must be notified by OFCOM to the person who, at the time of the | |
determination, holds the licence in question; | |
but, in the absence of a determination for the purposes of subsection (3)(b) in | |
any case in which the second notional expiry date falls before 1st January 2018, | 30 |
the second review period shall end with 31st December 2013. | |
(5) No application under this section for a review of the financial terms on which | |
a replacement licence is held is to be made— | |
(a) at any time when an application under section 220 for a review of those | |
terms is pending; or | 35 |
(b) at any time in the period of twelve months following the day on which | |
a determination by OFCOM on such an application is notified to the | |
licence holder. | |
(6) For the purposes of this section an application for a review under section 220 | |
is pending from the time when the application is made until the end of the day | 40 |
on which OFCOM’s determination on the review is notified to the licence | |
holder. | |
(7) In this section— | |
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“the first notional expiry date”, in relation to a replacement licence, means | |
the date with which (apart from this Act) the existing licence would | |
have expired if not renewed; | |
“the second notional expiry date”, in relation to a replacement licence, | |
means— | 5 |
(a) in a case in which an application by the licence holder for a | |
review under this section was made during the first review | |
period, the tenth anniversary of the date on which OFCOM’s | |
determination on that review was notified to the him; and | |
(b) in any other case, the tenth anniversary of the first notional | 10 |
expiry date. | |
“tender notice” means a notice under section 15(1) of the 1990 Act or (as | |
the case may be) paragraph 1 of Schedule 10. | |
(8) In subsection (7) “existing licence” has the same meaning as in section 210 or | |
(as the case may be) 216. | 15 |
220 Application for review of financial terms in consequence of new obligations | |
(1) This section applies where an order is made under section 395 that brings | |
section 264, 265 or 266 (or any two or more of them) into force for the purpose | |
of including conditions in the regulatory regime for— | |
(a) a Channel 3 service; | 20 |
(b) Channel 5; or | |
(c) the public teletext service. | |
(2) The holder of a licence in which conditions mentioned in section 264, 265 or 266 | |
will fall to be included when the order comes into force may apply to OFCOM, | |
at any time in the review period, for a review of the financial terms on which | 25 |
the licence is held. | |
(3) For the purposes of this section the review period in the case of an order under | |
section 395 is the period which— | |
(a) begins with the day on which the order is made; and | |
(b) ends with the time at which, by virtue of the order, one or more of | 30 |
sections 264, 265 and 266 come into force in the case of the licence in | |
question. | |
(4) If in the case of the same order there is more than one time falling within (3)(b), | |
the review period ends with the later or latest of them. | |
221 Reviews under ss. 219 and 220 | 35 |
(1) This section applies where an application is made under section 219 or 220 for | |
a review of the financial terms on which a licence is held. | |
(2) As soon as reasonably practicable after receiving the application, OFCOM | |
must— | |
(a) determine the amount to be paid to them under the conditions of the | 40 |
licence for the first calendar year falling wholly or partly within the | |
period under review to begin after the application date; and | |
(b) determine the percentage to be used for computing the payments to be | |
made to them under those conditions in respect of each accounting | |
period falling within the period under review to begin after that date. | 45 |
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(3) The amount determined under subsection (2)(a) must be equal to the amount | |
which, in OFCOM’s opinion, would have been the cash bid of the licence | |
holder were the licence being granted afresh on an application made in | |
accordance with— | |
(a) section 15 of the 1990 Act (licences for Channel 3 service or Channel 5); | 5 |
or | |
(b) paragraph 3 of Schedule 10 to this Act. | |
(4) The determination required by subsection (2)(b) is a determination of the | |
percentage of qualifying revenue for each accounting period that is to be paid | |
to OFCOM. | 10 |
(5) For the purposes of subsection (2)(b)— | |
(a) different percentages may be determined for different accounting | |
periods; and | |
(b) the percentages that may be determined for an accounting period | |
include a nil percentage. | 15 |
(6) In making their determinations on an application under section 220 OFCOM | |
are to have regard in particular to any additional costs that are likely to be | |
incurred by the licence holder in consequence of the commencement of so | |
much of section 264, 265 or 266 (or any two or more of them) as is brought into | |
force by the commencement order in question. | 20 |
(7) References in this section to qualifying revenue for an accounting period are to | |
be construed— | |
(a) in the case of the holder of a licence to provide a Channel 3 service or | |
Channel 5, in accordance with section 19 and Part 1 of Schedule 7 to the | |
1990 Act; and | 25 |
(b) in the case of the holder of the licence to provide the public teletext | |
service, in accordance with Part 3 of Schedule 10 to this Act. | |
(8) In this section— | |
“the application date”, in relation to a review, means the date of the | |
making under section 219 or 220 of the application for the review; and | 30 |
“the period under review”, in relation to a review of the financial terms of | |
a licence, means so much of the period for which the licence will (if not | |
renewed) continue in force after the application date. | |
222 Giving effect to reviews under ss 219 and 220 | |
(1) As soon as reasonably practicable after making a determination under section | 35 |
221 on an application under section 219 or 220, OFCOM must give a | |
notification of their determination to the applicant. | |
(2) The notification must set out— | |
(a) the determination made by OFCOM; | |
(b) the modifications of the applicant’s licence that are required to give | 40 |
effect to the determination; | |
(c) a date by which the applicant must notify OFCOM whether or not he | |
accepts the determination and modifications; and | |
(d) a subsequent date by which the applicant’s licence will cease to have | |
effect if he does not. | 45 |
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(3) The modifications set out in accordance with subsection (2)(b) must secure that | |
the amount falling to be paid under the conditions of the applicant’s licence for | |
each calendar year subsequent to that for which an amount has been | |
determined in accordance with section 221(2)(a) is the amount so determined | |
as increased by the appropriate percentage. | 5 |
(4) In the case of a determination on an application under section 219, the date | |
specified in accordance with subsection (2)(d)— | |
(a) must not be a date before the date which is the first notional expiry date; | |
and | |
(b) in the case of an application made in the second review period, must be | 10 |
31st December 2014. | |
(5) Where the applicant notifies OFCOM that he accepts the determination— | |
(a) his licence is to have effect with the modifications set out in OFCOM’s | |
notification; and | |
(b) all such adjustments by way of payment or repayment as may be | 15 |
necessary for giving effect to the modifications are to be made in | |
respect of any payments already made for years or periods affected by | |
the modifications. | |
(6) Where the applicant does not, before the date specified in accordance with | |
paragraph (c) of subsection (2), notify OFCOM that he accepts the | 20 |
determination, his licence shall have effect as if the period for which it is to | |
continue in force ended with the time specified in accordance with paragraph | |
(d) of that subsection. | |
(7) Where the time at which a licence would cease to have effect in accordance | |
with subsection (6) is the end of a licensing period, that subsection does not | 25 |
affect any rights of the licence holder with respect to the renewal of his licence | |
from the end of that period. | |
(8) In this section— | |
“the appropriate percentage” has the same meaning as in section 19 of the | |
1990 Act; | 30 |
“first notional expiry date” and “second review period” each has the same | |
meaning as in section 219; | |
“licensing period” means— | |
(a) the period beginning with the commencement of this section | |
and ending with 31st December 2014; or | 35 |
(b) any subsequent period of ten years beginning with the end of | |
the previous licensing period. | |
223 Review in anticipation of new licensing round | |
(1) OFCOM must, in anticipation of the end of each licensing period— | |
(a) prepare a report under this section; and | 40 |
(b) submit it to the Secretary of State no later than thirty months before the | |
end of that period. | |
(2) A report under this section must set out OFCOM’s opinion on the effect of each | |
of the matters mentioned in subsection (3) on the capacity of the holders of | |
relevant licences to contribute, in the next licensing period, to the fulfilment of | 45 |
the purposes of public service television broadcasting in the United Kingdom | |
at a cost to the licence holders that is commercially sustainable. | |
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(3) Those matters are— | |
(a) the arrangements that (but for an order section 224) would allow for the | |
renewal of relevant licences from the end of the current licensing | |
period; and | |
(b) the conditions included in the regulatory regimes for the services | 5 |
provided under relevant licences. | |
(4) A report under this section must also include the recommendations (if any) | |
which OFCOM consider, in the light of the opinion set out in the report, should | |
be made to the Secretary of State for the exercise by him of— | |
(a) his power under section 224; or | 10 |
(b) any of the powers to make statutory instruments that are conferred on | |
him by Chapter 4 of this Part. | |
(5) References in this section to the purposes of public service television | |
broadcasting in the United Kingdom are to be construed in accordance with | |
subsection (4) of section 256; and subsection (5) of that section shall have effect | 15 |
for the purposes of a report under this section as it applies for the purposes of | |
a report under that section. | |
(6) In this section— | |
“licensing period” means— | |
(a) the period beginning with the commencement of this section | 20 |
and ending with 31st December 2014; or | |
(b) any subsequent period of ten years beginning with the end of | |
the previous licensing period; | |
“relevant licence” means— | |
(a) a licence to provide a Channel 3 service; | 25 |
(b) a licence to provide Channel 5; or | |
(c) the licence to provide the public teletext service. | |
224 Orders suspending rights of renewal | |
(1) This section applies where the Secretary of State has received and considered | |
a report submitted to him by OFCOM under section 223. | 30 |
(2) If— | |
(a) the report contains a recommendation by OFCOM for the making of an | |
order under this section, or | |
(b) the Secretary of State considers, notwithstanding the absence of such a | |
recommendation, that it would be appropriate to do so, | 35 |
he may by order provide that licences for the time being in force that are of the | |
description specified in the order are not to be renewable under section 211 or | |
217 from the end of the licensing period in which he received the report. | |
(3) An order under this section preventing the renewal of licences from the end of | |
a licensing period must be made at least eighteen months before the end of that | 40 |
period. | |
(4) An order under this section with respect to Channel 3 licences must be an order | |
of one of the following descriptions— | |
(a) an order applying to every licence to provide a Channel 3 service; | |
(b) an order applying to every licence to provide a national Channel 3 | 45 |
service; or | |
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(c) an order applying to every licence to provide a regional Channel 3 | |
service. | |
(5) An order under this section does not affect— | |
(a) the person to whom a licence may be granted on an application made | |
under section 15 of the 1990 Act or under paragraph 3 of Schedule 10 to | 5 |
this Act; or | |
(b) rights of renewal in respect of licences first granted so as to take effect | |
from the beginning of a licensing period beginning after the making of | |
the order, or from a subsequent time. | |
(6) No order is to be made containing provision authorised by this section unless | 10 |
a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | |
(7) In this section “licensing period” has the same meaning as in section 223. | |
Replacement of Channel 4 licence | |
225 Replacement of Channel 4 licence | 15 |
(1) On the commencement of this subsection— | |
(a) Channel 4 shall cease to be licensed under the licence in force for the | |
purposes of section 24(3) of the 1990 Act immediately before the | |
commencement of this subsection; and | |
(b) a licence granted for those purposes in accordance with the following | 20 |
provisions of this section shall come into force as the licence under | |
which Channel 4 is licensed. | |
(2) It shall be the duty of OFCOM, as soon as practicable after the television | |
transfer date— | |
(a) to prepare a draft of a licence under Part 1 of the 1990 Act to replace the | 25 |
licence that is likely to be in force for the purposes of section 24(3) of the | |
1990 Act when subsection (1) of this section comes into force; | |
(b) to notify C4C of the terms and conditions of the replacement licence | |
they propose; and | |
(c) after considering any representations made by C4C, to grant such a | 30 |
replacement licence to C4C so that it takes effect in accordance with | |
paragraph (b) of subsection (1) of this section. | |
(3) A replacement licence proposed or granted under this section— | |
(a) must be a licence to provide a service with a view to its being broadcast | |
in digital form; and | 35 |
(b) must contain such conditions (if any) requiring C4C to ensure that the | |
whole or a part of Channel 4 is also provided for broadcasting in | |
analogue form as OFCOM consider appropriate. | |
(4) The conditions included in a licence by virtue of subsection (3)(b) must be such | |
as to enable effect to be given to any directions given from time to time by the | 40 |
Secretary of State to OFCOM about the continuance of the provision of services | |
in analogue form. | |
(5) Where a replacement licence proposed or granted under this section contains | |
a condition falling within subsection (3)(b), it must also contain a condition | |
that— | 45 |
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(a) the programmes (apart from the advertisements) that are included in | |
the service provided in analogue form, and | |
(b) the times at which they are broadcast, | |
are to be the same as in the case of, or of the specified part of, the service | |
provided for broadcasting in digital form. | 5 |
(6) The terms of a replacement licence proposed or granted under this section | |
must provide for it to continue in force until the end of 2014. | |
(7) But— | |
(a) such a licence may be renewed, on one or more occasions, for such | |
period as OFCOM may think fit in relation to the occasion in question; | 10 |
and | |
(b) the provisions of this section (apart from subsections (1), (2) and (6)) are | |
to apply in the case of a licence granted by way of a renewal of a licence | |
granted under this section as they apply in the case of the replacement | |
licence. | 15 |
(8) The conditions of a replacement licence proposed or granted under this section | |
must include the conditions that OFCOM consider appropriate for the purpose | |
of performing their duty under section 255. | |
(9) The conditions of such a licence must also include a condition prohibiting the | |
imposition, whether directly or indirectly, of the following— | 20 |
(a) charges on persons in respect of their reception in the United Kingdom | |
of Channel 4; | |
(b) charges on persons in respect of their reception in the United Kingdom | |
of any service consisting in the provision of assistance for disabled | |
people in relation to programmes included in Channel 4; and | 25 |
(c) charges on persons in respect of their reception in the United Kingdom | |
of any service (other than one mentioned in paragraph (b)) which is an | |
ancillary service in relation to so much of Channel 4 as is provided in | |
digital form. | |
(10) It shall be unlawful to impose a charge in contravention of a condition falling | 30 |
within subsection (9). | |
Television licensable content services | |
226 Meaning of “television licensable content service” | |
(1) In this Part “television licensable content service” means (subject to section 227) | |
any service falling within subsection (2) in so far as it is provided with a view | 35 |
to its availability for reception by members of the public being secured by one | |
or both of the following means— | |
(a) the broadcasting of the service (whether by the person providing it or | |
by another) from a satellite; or | |
(b) the distribution of the service (whether by that person or by another) by | 40 |
any means involving the use of an electronic communications network | |
to places in any of the EEA States. | |
(2) A service falls within this subsection if it— | |
(a) is provided (whether in digital or in analogue form) primarily as a | |
service that is to be made available for reception by members of the | 45 |
public; and | |
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