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Session 2002 - 03
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Other Bills before Parliament

Communications Bill


Communications Bill
Part 3 — Television and Radio Services
Chapter 5 — Media ownership and control

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     (5)    If OFCOM consider that the performance of the licence holder during the three

month period immediately preceding the relevant date is not typical of his

performance during the twelve months before the relevant date they—

           (a)           may determine that subsection (4) is to apply by reference to such other

three month period falling within those twelve months as they may

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determine; and

           (b)           must notify any determination under this subsection to the licence

holder.

     (6)    In subsection (4) “the relevant date” is the date of the relevant change of control

or, if earlier, the date on which OFCOM exercise their powers under this

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section.

     (7)    A variation of a licence under this section shall be effected by the service of a

notice of the variation on the licence holder.

     (8)    OFCOM are not to serve a notice of a variation under this section unless they

have given the body on whom it is served a reasonable opportunity, after the

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publication of the report of the review under section 341, of making

representations to them about the variation.

     (9)    Where, in a case of a proposed change of control, a notice varying a licence

under this section is served before the change to which it relates takes place, the

variation is not to take effect until that change takes place.

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     (10)   A condition included in a licence by a variation under this section may be

further varied by OFCOM either—

           (a)           with the consent of the licence holder; or

           (b)           in any other case, after complying with the requirements of section

86(5)(b) of the 1990 Act (variation after giving opportunity for

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representations by the licence holder).

     (11)   Expressions used in this section and section 341 have the same meanings in this

section as in that.

Meaning of control

 343   Meaning of “control”

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     (1)    In paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act (control where a

person will be able, without having at least a 50 per cent. interest in it, to have

the affairs of a body conducted in accordance with his wishes)—

           (a)           for “will be able” there shall be substituted “would (if he chose to) be

able in most cases or in significant respects”; and

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           (b)           for “the affairs” there shall be substituted “affairs”.

     (2)    After paragraph 1(3) of that Part of that Schedule there shall be inserted—

        “               (3ZA)                A person is to be assumed, unless the contrary is shown, to have

control of a body corporate as mentioned in sub-paragraph (3)(b) if

he is a participant with a 20 per cent. interest in that body or is one

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with more than a 20 per cent. interest in that body.”

     (3)    In paragraph 1(6) of that Part of that Schedule—

           (a)           the words “more than”, wherever occurring shall be omitted; and

           (b)           after paragraph (b) there shall be inserted—

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 6 — Other provisions about television and radio services

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                                     “and references to a participant with more than a 20 per cent.

interest in a body corporate shall be construed accordingly.”

     (4)    It shall be the duty of OFCOM to publish guidance setting out their intentions

concerning the inclusion of particular matters in the matters that they will take

into account when determining whether a person has control of a body, within

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the meaning of paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act.

     (5)    OFCOM may from time to time revise the guidance issued by them under this

section.

     (6)    OFCOM must publish the guidance and, where they revise it, the revised

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

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

Chapter 6

Other provisions about television and radio services

Annual report on television and radio

 344   Annual factual and statistical report

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     (1)    It shall be the duty of OFCOM—

           (a)           as soon as practicable after the end of the period of twelve months

beginning with the commencement of this section, and

           (b)           as soon as practicable after the end of every subsequent period of

twelve months,

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            to satisfy for that period the review and reporting requirements of this section.

     (2)    For any period those obligations are—

           (a)           to carry out a review of the provision of the television and radio

services available for reception by members of the public in the United

Kingdom during that period; and

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           (b)           to prepare a factual and statistical report for that period on the

provision of those services and on the state of the market in which they

are provided.

     (3)    In carrying out a review for any period under this section, OFCOM must

consider, in particular, each of the following—

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           (a)           the extent to which programmes included during that period in

television and radio services are representative of what OFCOM

consider to be the principal genres for such programmes;

           (b)           the extent to which codes made by OFCOM under this Part or Part 4 or

5 of the 1996 Act (listed events and fairness) have being complied with

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during that period;

           (c)           any trends appearing or operating during that period in the size and

behaviour of the audience for radio and television services;

           (d)           the financial condition during that period of the market in which those

services are provided and of the market in which programmes for such

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services are produced;

           (e)           any issues relating to intellectual property in programmes that have

arisen or been of significance during that period;

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 6 — Other provisions about television and radio services

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           (f)           developments in technology that have occurred or become important

during that period and are relevant to the provision, broadcasting or

distribution of television and radio programmes;

           (g)           the availability during that period of persons with skills that are used

or likely to be useful in connection with the provision of television and

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radio services and the production of programmes for inclusion in such

services;

           (h)           the availability during that period of facilities for the provision of

training in such skills.

     (4)    Every report under this section must set out OFCOM’s findings on their

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consideration of the matters mentioned in subsection (3).

     (5)    Every report prepared by OFCOM under this section must be published by

them—

           (a)           as soon as practicable after its preparation is complete; and

           (b)           in such manner as they consider appropriate.

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     (6)    OFCOM’s duties under this section are in addition to their duties under section

256.

Grants for access radio

 345   Grants to access radio providers

     (1)    OFCOM may make such grants as they consider appropriate to the provider of

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any service of a description of service in relation to which provision is for the

time being in force under section 254.

     (2)    A grant made under this section may be made on such terms and conditions,

and shall become repayable to OFCOM in such circumstances, as may be

specified by OFCOM when making the grant.

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     (3)    A person is not—

           (a)           by reason of the making to him of a grant under this section, or

           (b)           by reason of any terms or conditions (including any provisions for

repayment) subject to which such a grant is or has been made to him,

            to be a disqualified person by virtue of any provision of Schedule 2 to the 1990

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Act in relation to an access radio licence.

     (4)    In subsection (3) “access radio licence” means a licence under Part 3 of the 1990

Act, or under Part 2 of the 1996 Act, which is granted in accordance with any

provision made by an order under section 254 of this Act.

Supplemental provisions of Part 3

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 346   Amendments of the 1990 and 1996 Acts

     (1)    In section 201 of the 1990 Act (programme services), in subsection (1)—

           (a)           for paragraphs (a) to (bb) there shall be substituted—

                        “(aa)                           any service which is a programme service within the

meaning of the Communications Act 2003;”

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Communications Bill
Part 3 — Television and Radio Services
Chapter 6 — Other provisions about television and radio services

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           (b)           in paragraph (c), for “a telecommunication system” there shall be

substituted “an electronic communications network (within the

meaning of the Communications Act 2003)”.

     (2)    For subsection (2) of that section there shall be substituted—

           “(2A)              Subsection (1)(c) does not apply to so much of a service consisting only

5

of sound programmes as—

                  (a)                 is a two way service (within the meaning of section 242(4) of the

Communications Act 2003);

                  (b)                 satisfies the conditions in section 242(5) of that Act; or

                  (c)                 is provided for the purpose only of being received by persons

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who have qualified as users of the service by reason of being

persons who fall within paragraph (a) or (b) of section 242(7) of

that Act.

           (2B)              Subsection (1)(c) does not apply to so much of a service not consisting

only of sound programmes as—

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                  (a)                 is a two way service (within the meaning of section 227(5) of the

Communications Act 2003);

                  (b)                 satisfies the conditions in section 227(6) of that Act; or

                  (c)                 is provided for the purpose only of being received by persons

who have qualified as users of the service by reason of being

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persons who fall within paragraph (a) or (b) of section 227(8) of

that Act.”

     (3)    Schedule 15 (which makes minor and consequential amendments of the 1990

Act and the 1996 Act for purposes connected with the other provisions of this

Chapter) shall have effect.

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 347   Meaning of “available for reception by members of the public”

     (1)    The services that are to be taken for the purposes of this Part to be available for

reception by members of the public include (subject to subsection (2)) any

service which—

           (a)           is made available for reception, or is made available for reception in an

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intelligible form, only to persons who subscribe to the service (whether

for a period or in relation to a particular occasion) or who otherwise

request its provision; but

           (b)           is a service the facility of subscribing to which, or of otherwise

requesting its provision, is offered or made available to members of the

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public.

     (2)    A service is not to be treated as available for reception by members of the

public if each of the three conditions set out in subsections (3) to (5) is satisfied.

     (3)    The first condition is that the service is confined to the provision of a facility—

           (a)           for the making by users of the service of individual selections of the

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material to be received; and

           (b)           for receiving whatever is selected.

     (4)    The second condition is that it is only in response to a selection made by a user

of the service that anything (whether encrypted or decrypted)—

           (a)           is broadcast from a satellite or by means of a multiplex service; or

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Communications Bill
Part 3 — Television and Radio Services
Chapter 6 — Other provisions about television and radio services

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           (b)           is otherwise transmitted by means of an electronic communications

network.

     (5)    The third condition is that the individual selections that may be made do not

include any that are limited to electing to be one of the recipients of material

that is or has been offered for reception on the basis—

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           (a)           that it is material selected by the provider of the service for the purpose

of being made available for broadcasting or distribution

simultaneously, or virtually so, to an audience consisting of users of the

service; and

           (b)           that it will be broadcast or distributed simultaneously, or virtually so,

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to every member of the audience (if any) that consists of the users of the

service who have elected to receive it.

     (6)    References in this section to members of the public are references to members

of the public in, or in any area of, any one or more countries or territories

(which may or may not include the United Kingdom).

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     (7)    The Secretary of State may by order modify any of the provisions of this section

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

the following—

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

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

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by members of the public as respects the contents of television

programmes or sound programmes;

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

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

exercising control, by reference to the contents of the programmes, over

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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

modification of the provisions of that section; and

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

     (8)    No order is to be made containing provision authorised by subsection (7)

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

resolution of each House.

     (9)    In this section “multiplex service” means a television multiplex service, a radio

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multiplex service or a general multiplex service.

 348   Interpretation of Part 3

     (1)    In this Part—

                    “additional radio service” (except in the expression “digital additional

sound service”) means an additional service within the meaning given

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by section 114(1) of the 1990 Act for the purposes of Part 3 of that Act;

                    “additional television service” (except in the expression “digital

additional television service”) means an additional service within the

meaning given by section 48 of the 1990 Act for the purposes of Part 1

of the 1990 Act;

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                    “analogue teletext service” is to be construed in accordance with section

213(3);

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 6 — Other provisions about television and radio services

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                    “ancillary service” has the same meaning as it has, by virtue of section

24(2) of the 1996 Act, in Part 1 of that Act;

                     “assistance for disabled people” means any of the following—

                  (a)                 subtitling;

                  (b)                 audio-description for the blind and partially sighted; and

5

                  (c)                 presentation in, or translation into, sign language;

                    “available for reception by members of the public” is to be construed in

accordance with section 347;

                    “BBC company” means—

                  (a)                 a body corporate which is controlled by the BBC; or

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                  (b)                 a body corporate in which the BBC or a body corporate

controlled by the BBC is (to any extent) a participant;

                    “C4 company” means—

                  (a)                 a body corporate which is controlled by C4C; or

                  (b)                 a body corporate in which C4C or a body corporate controlled

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by C4C is (to any extent) a participant;

                    “Channel 3”,“Channel 4” and “Channel 5” each has the same meaning as

in Part 1 of the 1990 Act (see section 71 of that Act);

                    “a Channel 3 service” means a television broadcasting service comprised

in Channel 3;

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                    “digital additional sound service” means a digital additional service

within the meaning given by section 63 of the 1996 Act for the purposes

of Part 2 of that Act;

                    “digital additional television service” means a digital additional service

within the meaning given by section 24(1) of the 1996 Act for the

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purposes of Part 1 of that Act;

                    “the digital public teletext service” means so much of the public teletext

service as consists of a service provided in digital form;

                    “digital sound programme licence” and “digital sound programme

service” each has the same meaning as in Part 2 of the 1996 Act (see

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sections 40 and 72 of that Act);

                    “digital television programme service” means a digital programme

service within the meaning given by section 1(4) of the 1996 Act for the

purposes of Part 1 of that Act;

                    “EEA State” means the United Kingdom or any other State that is a

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contracting party to the Agreement on the European Economic Area

signed at Oporto on 22nd May 1992, as adjusted by the Protocol signed

at Brussels on 17th March 1993, and “another EEA State” means an EEA

State other than the United Kingdom;

                    “general multiplex service” means a multiplex service within the meaning

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of section 170 which is neither a television multiplex service nor a radio

multiplex service;

                    “licensed public service channel” means any of the following services

(whether provided for broadcasting in digital or in analogue form)—

                  (a)                 any Channel 3 service;

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                  (b)                 Channel 4;

                  (c)                 Channel 5;

                    “local digital sound programme licence” and “local digital sound

programme service” each has the same meaning as in Part 2 of the 1996

Act (see sections 60 and 72 of that Act);

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Communications Bill
Part 3 — Television and Radio Services
Chapter 6 — Other provisions about television and radio services

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                    “local radio multiplex licence” and “local radio multiplex service” each

has the same meaning as in Part 2 of the 1996 Act (see sections 40 and

72 of that Act);

                    “local sound broadcasting licence” means a licence under Part 3 of the

1990 Act to provide a local sound broadcasting service;

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                    “local sound broadcasting service” means a sound broadcasting service

which, under subsection (4)(b) of section 239, is a local service for the

purposes of that section;

                    “the M25 area” means the area the outer boundary of which is represented

by the London Orbital Motorway (M25);

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                    “national Channel 3 service” means a Channel 3 service provided between

particular times of the day for more than one area for which regional

Channel 3 services are provided;

                    “national digital sound programme service” has the same meaning as in

Part 2 of the 1996 Act;

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                    “national radio multiplex licence” and “national radio multiplex service”

each has the same meaning as in Part 2 of the 1996 Act (see sections 40

and 72 of that Act);

                    “networking arrangements” has the meaning given by section 280;

                    “OFCOM’s standards code” means any code or codes for the time being

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in force containing standards set by OFCOM under section 307 of this

Act (whether originally or by way of any revision of any standards

previously so set);

                    “provision”, in relation to a service, is to be construed (subject to

subsection (3)) in accordance with subsection (2), and cognate

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expressions are to be construed accordingly;

                    “the public teletext provider” means—

                  (a)                 subject to paragraph (b), the person holding the licence under

section 214 to provide the public teletext service; and

                  (b)                 in relation to a time before the grant of the first licence to be

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granted under that section, the person holding the Broadcasting

Act licence to provide the existing service (within the meaning

of section 216);

                    “the public teletext service” means the service the provision of which is

required to be secured in accordance with section 213;

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                    “qualifying service” has the same meaning as in Part 1 of the 1996 Act (see

section 2(2) of that Act);

                    “radio licensable content service” has the meaning given by section 241;

                    “radio multiplex service” has the same meaning as (by virtue of section

252 of this Act) it has in Part 2 of the 1996 Act;

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                    “radio programme service” means any of the following—

                  (a)                 a service the provision of which is licensed under Part 3 of the

1990 Act;

                  (b)                 a digital sound programme service the provision of which is

licensed under Part 2 of the 1996 Act;

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                  (c)                 a digital additional sound service the provision of which is

licensed under section 64 of the 1996 Act;

                    “regional Channel 3 licence” means a licence under Part 1 of the 1990 Act

to provide a regional Channel 3 service;

                    “regional Channel 3 service” means a Channel 3 service provided for a

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particular area determined under section 14(2) of the 1990 Act;

 

 

 
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