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Communications Bill


Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    192

 

     (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

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 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—

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           (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.

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     (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

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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—

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           (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,

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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

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           (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

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on which OFCOM’s determination on the review is notified to the licence

holder.

     (7)    In this section—

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    193

 

                    “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—

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                  (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

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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.

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 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;

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           (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

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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

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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

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     (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

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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.

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Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    194

 

     (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);

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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.

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     (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.

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     (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.

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     (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

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           (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

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                    “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

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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.

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Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    195

 

     (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.

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     (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

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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

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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

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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

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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;

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                    “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

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                  (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

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           (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

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the purposes of public service television broadcasting in the United Kingdom

at a cost to the licence holders that is commercially sustainable.

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    196

 

     (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

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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

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           (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

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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

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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;

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                  (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.

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     (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,

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            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

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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

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service; or

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    197

 

           (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

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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

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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

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     (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

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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

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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

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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

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           (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

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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—

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Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    198

 

           (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.

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     (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;

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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.

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     (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—

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           (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

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           (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

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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

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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

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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

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public; and

 

 

 
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