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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 | 5 |
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 | 10 |
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 | 15 |
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. | 20 |
(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 | 25 |
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” | 30 |
(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 | 35 |
(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 | 40 |
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— | |
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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 | 5 |
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 | 10 |
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 | 15 |
(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, | 20 |
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 | 25 |
(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— | 30 |
(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 | 35 |
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 | 40 |
services are produced; | |
(e) any issues relating to intellectual property in programmes that have | |
arisen or been of significance during that period; | |
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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 | 5 |
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 | 10 |
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. | 15 |
(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 | 20 |
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. | 25 |
(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 | 30 |
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 | 35 |
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;” | 40 |
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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 | 10 |
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— | 15 |
(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 | 20 |
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. | 25 |
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 | 30 |
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 | 35 |
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 | 40 |
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 | 45 |
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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— | 5 |
(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, | 10 |
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). | 15 |
(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 | 20 |
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 | 25 |
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 | 30 |
(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 | 35 |
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 | 40 |
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; | 45 |
“analogue teletext service” is to be construed in accordance with section | |
213(3); | |
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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 | 10 |
(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 | 15 |
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; | 20 |
“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 | 25 |
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 | 30 |
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 | 35 |
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 | 40 |
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; | 45 |
(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); | 50 |
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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; | 5 |
“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); | 10 |
“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; | 15 |
“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 | 20 |
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 | 25 |
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 | 30 |
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; | 35 |
“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; | 40 |
“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; | 45 |
(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 | 50 |
particular area determined under section 14(2) of the 1990 Act; | |
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