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Code relating to programme commissioning
Mr Stephen Timms
Dr Kim Howells
NC38
To move the following Clause:—
'(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing that the provider of the channel draws up and from time to time revises a code of practice setting out the principles he will apply when agreeing terms for the commissioning of independent productions.
(2) That regime also includes the conditions that OFCOM consider appropriate for securing that the provider of every licensed public service channel—
| (a) | at all times complies with a code of practice which has been drawn up by him by virtue of this section and is for the time being in force; and |
| (b) | exercises his power to revise his code to take account of revisions from time to time of the guidance issued by OFCOM for the purposes of this section. |
(3) The conditions imposed under this section must ensure that the code for the time being in force in the case of every licensed public service channel secures, in the manner described in guidance issued by OFCOM—
| (a) | that a reasonable timetable is applied to negotiations for the commissioning of an independent production and for the conclusion of a binding agreement; |
| (b) | that there is what appears to OFCOM to be sufficient clarity, when an independent production is commissioned, about the different categories of rights to broadcast or otherwise to make use of or exploit the commissioned production that are being disposed of; |
| (c) | that there is what appears to OFCOM to be sufficient transparency about the amounts to be paid in respect of each category of rights; |
| (d) | that what appear to OFCOM to be satisfactory arrangements are made about the duration and exclusivity of those rights; |
| (e) | that procedures exist for reviewing the arrangements adopted in accordance with the code and for demonstrating compliance with it; |
| (f) | that those procedures include requirements for the monitoring of the application of the code and for the making of reports to OFCOM; |
| (g) | that provision is made for resolving disputes arising in respect of the provisions of the code (by independent arbitration or otherwise) in a manner that appears to OFCOM to be appropriate. |
(4) The conditions imposed under this section must also ensure that the drawing up or revision of a code by virtue of this section is in accordance with guidance issued by OFCOM as to—
| (a) | the times when the code is to be drawn up or reviewed with a view to revision; |
| (b) | the consultation to be undertaken before a code is drawn up or revised; and |
| (c) | the publication of every code or revised code. |
(5) The provision that may be included in a condition imposed under this section includes—
| (a) | provision requiring a draft of a code or of any revision of a code to be submitted to OFCOM for approval; |
| (b) | provision for the code or revision to have effect only if approved by OFCOM; and |
| (c) | provision for a code or revision that is approved by OFCOM subject to modifications to have effect with those modifications. |
(6) OFCOM—
| (a) | must issue and may from time to time revise guidance for the purposes of this section; |
| (b) | must ensure that there is always guidance for those purposes in force; |
| (c) | must, before issuing their guidance or revised guidance, consult the providers of licensed public service channels, persons who make independent productions (or persons appearing to OFCOM to represent them), the BBC and the Welsh Authority; and |
| (d) | must publish their guidance or revised guidance in such manner as they think appropriate. |
(7) Guidance issued by OFCOM for the purposes of this section must be general guidance and is not to specify particular terms to be included in agreements to which the guidance relates.
(8) Conditions imposed under this section requiring a code to be drawn up or approved may include transitional provision for treating a code drawn up before the imposition of the condition —
| (a) | as satisfying the requirements of that condition; and |
| (b) | as a code approved by OFCOM for the purposes of conditions so imposed. |
(9) In this section "independent production" has the same meaning as in section 269.'.
Changes of control of Channel 5
Mr Stephen Timms
Dr Kim Howells
NC39
To move the following Clause:—
'(1) The regulatory regime for Channel 5 includes, in every case where it is provided by a body corporate—
| (a) | a condition requiring the licence holder to give OFCOM advance notification of any proposals known to the body that may give rise to a relevant change of control; and |
| (b) | a condition requiring the licence holder to provide OFCOM, in such manner and at such times as they may reasonably require, with such information as they consider necessary for the purposes of exercising their functions under this section and section [Action following review under s. [Changes of control of Channel 5]]. |
(2) OFCOM must carry out a review where—
| (a) | they receive notification, in accordance with a condition of the licence to provide Channel 5, of proposals that may give rise to a relevant change of control; or |
| (b) | a relevant change of control takes place (whether or not that change has been previously notified to OFCOM). |
(3) The review shall be a review of the effects or likely effects, in relation to the matters mentioned in subsections (4) and (5), of—
| (a) | the change to which the proposals may give rise; or |
| (b) | the change that has taken place. |
(4) The matters mentioned in this subsection are—
| (a) | the extent to which time available for broadcasting programmes included in Channel 5 is allocated to programmes of each of the following descriptions— |
| (i) | original productions; |
| (ii) | news programmes; and |
| (iii) | current affairs programmes; |
| (b) | the extent to which programmes of each of those descriptions that are included in that Channel are broadcast at peak viewing times. |
(5) The matters mentioned in this subsection are—
| (a) | the extent to which programmes made in the United Kingdom that are included in the service are programmes made outside the M25 area; |
| (b) | the range of programmes made in the United Kingdom outside that area that are included in Channel 5; |
| (c) | the extent to which the expenditure of the provider of Channel 5 on programmes made in the United Kingdom is referable to programme production at different production centres outside the M25 area; |
| (d) | the range of different such production centres to which that expenditure is referable. |
(6) Where OFCOM carry out a review under subsection (2), they must publish a report of that review—
| (a) | setting out their conclusions; and |
| (b) | specifying any steps which they propose to take under section [Action following review under s. [Changes of control of Channel 5]]. |
(7) In this section—
"expenditure", in relation to a programme, means—
| (a) | expenditure which constitutes an investment in or is otherwise attributable to the making of the programme; or |
| (b) | expenditure on the commissioning or other acquisition of the programme or on the acquisition of a right to include it in a service or to have it broadcast; |
"original production" has the same meaning as in section 270;"peak viewing time"—
| (a) | in relation to original productions, means a time determined by OFCOM for the purposes of section 270 to be a peak viewing time for Channel 5; and |
| (b) | in relation to news programmes or current affairs programmes, means a time so determined for the purposes of section 271; |
"relevant change of control" means a change in the persons having control over—
| (a) | a body holding a licence to provide Channel 5; or |
| (i) | is connected with a body holding such a licence; and |
| (ii) | appears to OFCOM to be involved, to any extent, in the provision of programmes for inclusion in that channel, or to be likely to be so involved. |
(8) Expressions used in this section and in Part 1 of Schedule 2 to the 1990 Act (restrictions on licence holders) have the same meanings in this section as in that Part.'.
Action following review under s. [Changes of control of Channel 5]
Mr Stephen Timms
Dr Kim Howells
NC40
To move the following Clause:—
'(1) If, on a review under subsection (2) of section [Changes of control of Channel 5], it appears to OFCOM that the relevant change of control is or would be prejudicial to one or more of the matters mentioned in subsections (4) and (5) of that section, they shall vary the licence in accordance with subsection (2).
(2) The variation—
| (a) | must be made with a view to ensuring that the relevant change of control is not prejudicial to any of the matters so mentioned; and |
| (b) | must be a variation for the inclusion in the licence of such conditions relating to any of those matters as they consider appropriate. |
(3) Subject to subsection (4), any new or varied condition imposed under this section in relation to any matter may be more onerous than the conditions relating to that matter having effect before the relevant change of control.
(4) A variation under this section must not provide for the inclusion of a new or varied condition in a licence unless the new condition, or the condition as varied, is one which (with any necessary modifications) would have been satisfied by the licence holder throughout the twelve months immediately before the relevant date.
(5) 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 section.
(6) A variation of a licence under this section shall be effected by the service of a notice of the variation on the licence holder.
(7) 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 publication of the report of the review under section [Changes of control of Channel 5], of making representations to them about the variation.
(8) 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 the change takes place.
(9) 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 3(4)(b) of the 1990 Act (variation after giving opportunity for representations by the licence holder). |
(10) Expressions used in this section and section [Changes of control of Channel 5] have the same meanings in this section as in that.'.
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