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Communications Bill


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

    199

 

           (b)           consists (with or without relevant ancillary services) of television

programmes or electronic programme guides, or both.

     (3)    In this section—

                    “electronic programme guide” means a service which consists of—

                  (a)                 the listing or promotion, or both the listing and the promotion,

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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)                 a facility for obtaining access, in whole or in part, to the

programme service or services listed or promoted in the guide;

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                    “relevant ancillary service” means a service the provision of which

consists in the provision of—

                  (a)                 subtitling for the deaf in connection with any television

programmes included in a television licensable content service

provided by the same person as the subtitling; or

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                  (b)                 other services which are not advertising but which—

                      (i)                     are ancillary to any such programmes and relate to their

contents; or

                      (ii)                    relate to the promotion or listing of such programmes.

 227   Services that are not television licensable content services

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     (1)    A service is not a television licensable content service to the extent that it is

provided with a view to its being broadcast by means of a multiplex service.

     (2)    A service is not a television licensable content service to the extent that it

consists of a service the provision of which is authorised by—

           (a)           a licence to provide a television broadcasting service;

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           (b)           the licence to provide the public teletext service; or

           (c)           a licence to provide additional television services.

     (3)    A service is not a television licensable content service to the extent that it is

provided by means of an electronic communications service if—

           (a)           it forms part only of a service provided by means of that electronic

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communications service; and

           (b)           the purposes for which the service of which it forms a part is provided

do not consist wholly or mainly in making available television

programmes or radio programmes (or both) for reception by members

of the public.

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     (4)    A service is not a television licensable content service if it is a two-way service

provided by means of an electronic communications network.

     (5)    A service is a two-way service for the purposes of subsection (4) if an essential

feature of the service is that the purposes for which it is provided involve the

use of the electronic communications network, or the part of it, by means of

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which the service is provided both—

           (a)           for the transmission of visual images or sounds (or both) by the person

providing the service to users of the service; and

           (b)           for the transmission of visual images or sounds (or both) by those users

for reception by the person providing the service or by other users of

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the service

 

 

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

    200

 

     (6)    A service is not a television licensable content service if—

           (a)           it is distributed by means of an electronic communications network

only to persons all of whom are on a single set of premises; and

           (b)           that network is wholly within those premises and is not connected to

an electronic communications network any part of which is outside

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those premises.

     (7)    For the purposes of subsection (6)—

           (a)           a set of premises is a single set of premises if, and only if, the same

person is the occupier of all the premises; and

           (b)           two or more vehicles are capable of constituting a single set of premises

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if, and only if, they are coupled together.

     (8)    A service is not a television licensable content service if it is provided for the

purpose only of being received by persons who have qualified as users of the

service by reason of being—

           (a)           persons who have a business interest in the programmes included in

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the service; or

           (b)           persons who are to receive the programmes for the purpose only of

showing them to persons falling within sub-paragraph (a) or to persons

all of whom are on the business premises of the person receiving them.

     (9)    For the purposes of subsection (8) a person has a business interest in

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programmes if he has an interest in receiving or watching them—

           (a)           for the purposes of a business carried on by him; or

           (b)           for the purposes of his employment.

     (10)   In this section—

                    “business premises”, in relation to a person, means premises at or from

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which any business of that person is carried on;

                    “multiplex service” means a television multiplex service, a radio

multiplex service or a general multiplex service;

                    “premises” includes a vehicle;

                    “vehicle” includes a vessel, aircraft or hovercraft.

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     (11)   References in this section, in relation to a person, to a business include

references to—

           (a)           any business or other activities carried on by a body of which he is a

member and the affairs of which are managed by its members; and

           (b)           the carrying out of any functions conferred on that person, or on any

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such body, by or under any enactment.

 228   Modification of ss. 226 and 227

     (1)    The Secretary of State may by order modify any of the provisions of section 226

or 227 if it appears to him appropriate to do so having regard to any one or

more of the following—

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           (a)           the protection which, taking account of the means by which the

programmes and services are received or may be accessed, is expected

by members of the public as respects the contents of television

programmes;

           (b)           the extent to which members of the public are able, before television

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programmes are watched or accessed, to make use of facilities for

 

 

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

    201

 

           (b)           exercising control, by reference to the contents of the programmes, over

what is watched or accessed;

           (c)           the practicability of applying different levels of regulation in relation to

different services;

           (d)           the financial impact for providers of particular services of any

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modification of the provisions of that section; and

           (e)           technological developments that have occurred or are likely to occur.

     (2)    The Secretary of State may also by order provide, in cases where it otherwise

appears to him appropriate to do so, that a description of service specified in

the order is not to be treated as a television licensable content service for the

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purposes of the provisions of this Act that are so specified.

     (3)    No order is to be made containing provision authorised by subsection (1)

unless a draft of the order has been laid before Parliament and approved by a

resolution of each House.

 229   Licensing of television licensable content services

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     (1)    The licence that is required for the purposes of section 13 of the 1990 Act in

respect of a television licensable content service is a licence granted under Part

1 of that Act on an application complying with this section.

     (2)    An application for a licence to provide a television licensable content service—

           (a)           must be made in such manner,

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           (b)           must contain such information about the applicant, his business and

the service he proposes to provide, and

           (c)           must be accompanied by such fee (if any),

            as OFCOM may determine.

     (3)    Where an application is made to OFCOM in accordance with subsection (2) for

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a licence to provide a television licensable content service, OFCOM are entitled

to refuse the application only if—

           (a)           they are required to do so by section 3(3) of the 1990 Act (licences to be

held only by fit and proper persons);

           (b)           they are required to do so by section 5 of the 1990 Act (restrictions on

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the holding of licences); or

           (c)           they are satisfied that, if the application were to be granted, the

provision of the service would be likely to involve contraventions of—

                  (i)                 standards set under section 307 of this Act; or

                  (ii)                the provisions of a code of practice in force under Part 5 of the

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1996 Act (fairness).

     (4)    The provision of more than one television licensable content service shall

require a separate licence under Part 1 of the 1990 Act to be granted and held

in respect of each service.

     (5)    A single licence to provide a television licensable content service may authorise

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the provision of a service which consists (to any extent) of different

programmes to be broadcast simultaneously, or virtually so, on different

frequencies.

     (6)    A licence to provide a television licensable content service shall continue in

force until such time as it is surrendered or is revoked in accordance with any

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of the provisions of this Chapter or of the 1990 Act.

 

 

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

    202

 

 230   Direction to licensee to take remedial action

     (1)    This section applies if OFCOM are satisfied—

           (a)           that the holder of a licence to provide a television licensable content

service has contravened a condition of the licence; and

           (b)           that the contravention can be appropriately remedied by the inclusion

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in the licensed service of a correction or a statement of findings (or

both).

     (2)           OFCOM may direct the licence holder to include a correction or a statement of

findings (or both) in the licensed service.

     (3)    A direction may require the correction or statement of findings to be in such

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form, and to be included in programmes at such time or times, as OFCOM may

determine.

     (4)    OFCOM are not to give a person a direction under this section unless they have

given him a reasonable opportunity of making representations to them about

the matters appearing to them to provide grounds for the giving of the

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direction.

     (5)    Where the holder of a licence includes a correction or a statement of findings

in the licensed service in pursuance of a direction under this section, he may

announce that he is doing so in pursuance of such a direction.

     (6)    If OFCOM are satisfied that the inclusion of a programme in a television

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licensable content service involved a contravention of a condition of the licence

to provide that service, they may direct the holder of the licence not to include

that programme in that service on any future occasion.

     (7)    Where OFCOM—

           (a)           give a direction to a BBC company under subsection (2), or

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           (b)           receive representations from a BBC company by virtue of subsection

(4),

            they must send a copy of the direction or representations to the Secretary of

State.

     (8)                  For the purposes of this section a statement of findings, in relation to a case in

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which OFCOM are satisfied that the holder of a licence has contravened the

conditions of his licence, is a statement of OFCOM’s findings in relation to that

contravention.

 231   Penalties for contravention of licence condition or direction

     (1)    If OFCOM are satisfied that the holder of a licence to provide a television

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licensable content service—

           (a)           has contravened a condition of the licence, or

           (b)           has failed to comply with a direction given by OFCOM under or by

virtue of a provision of this Part, Part 1 of the 1990 Act or Part 5 of the

1996 Act,

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            they may serve on him a notice requiring him to pay them, within a specified

period, a specified penalty.

     (2)    The amount of the penalty under this section must not exceed the maximum

penalty given by subsection (3).

     (3)    The maximum penalty is whichever is the greater of—

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

    203

 

           (a)           £250,000; and

           (b)           5 per cent. of the qualifying revenue for the licence holder’s last

complete accounting period falling within the period for which his

licence has been in force (‘the relevant period’).

     (4)           In relation to a person whose first complete accounting period falling within

5

the relevant period has not ended when the penalty is imposed, subsection (3)

is to be construed as referring to 5 per cent of the amount which OFCOM

estimate will be the qualifying revenue for that accounting period.

     (5)    Section 19(2) to (6) of the 1990 Act and Part 1 of Schedule 7 to that Act

(calculation of qualifying revenue), with any necessary modifications, are to

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apply for the purposes of subsection (3) as they apply for the purposes of Part

1 of that Act.

     (6)    OFCOM are not to serve a notice on a person under subsection (1) unless they

have given him a reasonable opportunity of making representations to them

about the matters appearing to them to provide grounds for the service of the

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notice.

     (7)    Where OFCOM—

           (a)           serve a notice on a BBC company under subsection (1), or

           (b)           receive representations from a BBC company by virtue of subsection

(6),

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            they must send a copy of the notice or representations to the Secretary of State.

     (8)    An exercise by OFCOM of their powers under subsection (1) does not preclude

any exercise by them of their powers under section 230 in respect of the same

contravention.

     (9)    The Secretary of State may by order substitute a different sum for the sum for

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the time being specified in subsection (3)(a).

     (10)   No order is to be made containing provision authorised by subsection (9)

unless a draft of the order has been laid before Parliament and approved by a

resolution of each House.

 232   Revocation of television licensable content service licence

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     (1)    OFCOM must serve a notice under subsection (2) on the holder of a licence to

provide a television licensable content service if they are satisfied—

           (a)           that the holder of the licence is in contravention of a condition of the

licence or is failing to comply with a direction given by them under or

by virtue of any provision of this Part, Part 1 of the 1990 Act or Part 5 of

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the 1996 Act; and

           (b)           that the contravention or failure, if not remedied, 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);

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           (b)           specify the respects in which, in their opinion, the licence holder is

contravening the condition or failing to comply with the direction; and

           (c)           state that OFCOM will revoke the licence unless the licence holder

takes, within such period as is specified in the notice, such steps to

remedy the failure as are so specified.

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

    204

 

     (3)    If, at the end of the period specified in a notice under subsection (2), OFCOM

are satisfied—

           (a)           that the person on whom the notice was served has failed to take the

steps specified in it, and

           (b)           that it is necessary in the public interest to revoke his licence,

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                   they shall serve a notice on him revoking his licence.

     (4)    If OFCOM are satisfied in the case of a licence to provide a television licensable

content service—

           (a)           that the holder of the licence has ceased to provide the licensed service,

and

10

           (b)           that it is appropriate for them to do so,

                   they shall serve a notice on him revoking his licence.

     (5)    If OFCOM are satisfied—

           (a)           that the holder of a licence to provide a television licensable content

service has provided them, in connection with his application for the

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licence, with information which was false in a material particular, or

           (b)           that, in connection with his application for the licence, the holder of

such a licence withheld any material information with the intention of

causing them to be misled,

                   they may serve a notice on him revoking his licence.

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     (6)    A notice under this section revoking a licence to provide a television licensable

content service takes effect as from the time when it is served on the licence

holder.

     (7)    OFCOM are not to serve a notice on a person under this section unless they

have given him a reasonable opportunity of making representations to them

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about the matters in respect of which it is served.

     (8)    Where OFCOM—

           (a)           serve a notice on a BBC company under this section, or

           (b)           receive representations from a BBC company by virtue of subsection

(7),

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            they must send a copy of the notice or representations to the Secretary of State.

     (9)    Nothing in this section applies to the revocation of a licence in exercise of the

power conferred by section 233.

 233   Action against licence holders who incite crime or disorder

     (1)    OFCOM must serve a notice under subsection (2) on the holder of a licence to

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provide a television licensable content service if they are satisfied—

           (a)           that the holder of the licence has included in the service one or more

programmes containing material likely to encourage or to incite the

commission of crime, or to lead to disorder;

           (b)           that, in doing so, he has contravened conditions contained by virtue of

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Chapter 4 of this Part in the licence to provide that service; and

           (c)           that the contravention is such as to justify the revocation of the licence.

     (2)    A notice under this subsection must—

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

 

 

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

    205

 

           (b)           specify the respects in which, in their opinion, the licence holder has

contravened the condition mentioned in paragraph (b) of that

subsection;

           (c)           state that OFCOM may revoke the licence after the end of the period of

twenty-one days beginning with the day on which the notice is served

5

on the licence holder; and

           (d)           inform the licence holder of his right to make representations to

OFCOM within that period about the matters appearing to OFCOM to

provide grounds for revoking the licence.

     (3)    The effect of a notice under subsection (2) shall be to suspend the licence as

10

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)    If, after considering any representations made to them by the licence holder

within the period specified for the purposes of subsection (2)(c), OFCOM are

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satisfied that it is necessary in the public interest to revoke the licence, they

shall serve a notice of revocation on the licence holder.

     (5)    The revocation of a licence by a notice under subsection (4) takes effect from

such time as may be specified in the notice.

     (6)    A notice of revocation under subsection (4) must not specify a time for it to take

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effect that falls before the end of the period of twenty-eight days beginning

with the day on which the notice is served on the licence holder.

 234   Abolition of separate licences for certain television services

     (1)    The authorisations that are to be capable of being granted on or after the

television transfer date by or under a licence under Part 1 of the 1990 Act do

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not include the authorisation of the provision, as such, of—

           (a)           any satellite television service (as defined, disregarding its repeal by

this Act, in section 43(1) of the 1990 Act); or

           (b)           any licensable programme service (as defined, disregarding its repeal

by this Act, in section 46(1) of that Act).

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     (2)    Subsection (1) does not affect OFCOM’s power, by means of a licence

authorising the provision of a service falling within section 206(1), to authorise

the provision of so much of any formerly regulated television service as is

comprised in the licensed service.

     (3)    So much of any relevant existing licence as authorises the provision of a service

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which consists in or includes a television licensable content service—

           (a)           shall have effect, on and after the television transfer date, as a licence

under Part 1 of the 1990 Act authorising the provision of the television

licensable content service comprised in the licensed service;

           (b)           shall so have effect as a licence which, notwithstanding its terms and

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conditions, is to continue in force until such time as it is surrendered or

is revoked in accordance with provisions of this Chapter or of the 1990

Act; and

           (c)           shall otherwise have effect as a licence on the same terms and

conditions as those on which it had effect immediately before the

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television transfer date.

 

 

 
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