House of Commons - Explanatory Note
Communications Bill - continued          House of Commons

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Clause 235: Television multiplex services

505.     References to any television multiplex service referred to in Part 1 of the Broadcasting Act 1996 mean a service broadcast for general reception, otherwise than by satellite, so as to be available to members of the public. This service shall provide, or be capable of providing, two or more services which include at least one "relevant television service" (as defined in subsection (9)) for simultaneous broadcast on the same frequency.

506.     Subsection (3) provides that it is not an offence to provide a television multiplex service that is not licensed under the Broadcasting Act 1996. Only where a wireless telegraphy licence provides that any television multiplex services being broadcast using a station or apparatus that is authorised by this licence, must itself be licensed, shall that multiplex service require a licence. This will be assumed in cases where the multiplex service is already licensed under the Broadcasting Act 1996 and the service is broadcast using a station or apparatus that is authorised by a wireless telegraphy licence. Where this assumption applies, and a person affected by it either ceases to be licensed under Part 1 of the Broadcasting Act 1996 or ceases to exist, OFCOM may revoke the wireless telegraphy licence relating to the provision by that person of the television multiplex service in question.

Clause 236: Composition of services in television multiplexes

507.     This clause amends section 12 of the Broadcasting Act 1996. OFCOM will now be able to include conditions in any multiplex licence granted under that Act to secure that: (i) all digital programme services and digital additional services provided by the BBC may be carried on that multiplex, (ii) the digital sound programme services broadcast under the licence are either provided by the BBC or licensed under section 60 and (iii) a licensee does not show undue discrimination either against or in favour of a digital sound programme service provider, or restrict that provider's ability to share any of his spare capacity (unless it is reasonable to do so in order to ensure the technical quality of the multiplex service).

508.     The current version of section 12(1)(h) requires that at least 90 per cent of digital capacity on the frequency of the service to which the licence relates be available for broadcasting digital programmes and related services. Subsection (1)(f) amends the 90 per cent threshold to 'the required percentage'. This figure, to be set by OFCOM as they think appropriate, must be 90 per cent or higher. The Secretary of State retains the power to amend the minimum percentage, by order. Subsection (2) adds digital programme services and digital sound programme services provided by the BBC to the list of services in the current version of section 12(1)(h). Digital sound programme services provided otherwise than by the BBC must be accommodated within the remaining capacity.

509.     Subsection (3) of this clause amends the test that the Independent Television Commission currently applies where a multiplex licence holder applies for a variation of any condition imposed relating to the implementation of any proposals as to the characteristics of the digital programme services to be broadcast. When this clause comes into effect, OFCOM will be required to vary the condition unless it appears that the capacity for digital programme services and/or digital sound programme services would be unacceptably diminished. The test will also be applied to requests for variations of any condition imposed relating to the implementation of any proposals as to the characteristics of the digital sound programme services.

Clause 237: Powers where frequencies reserved for qualifying services

510.     OFCOM, in fulfilling their spectrum management role, may reserve digital capacity on particular frequencies for the provision of a television multiplex service. The Secretary of State may by order provide that OFCOM shall ensure that the holders of licences for such services on these reserved frequencies enter agreements with relevant public service broadcasters for the broadcasting of services provided by those broadcasters on the reserved digital capacity. An order under this clause may also require OFCOM to include in the licence conditions requiring any such broadcaster to pay the licence holder for use of the reserved digital capacity. The amount paid is to be agreed between the broadcaster and the television multiplex licensee or (in the absence of any agreement) determined by OFCOM.

*a relevant public service broadcaster is defined in subsection (7) as a holder of a Channel 3 service licence, the C4 Corporation, the holder of the Channel 5 licence, the Welsh Authority or the public teletext provider. This definition excludes the BBC.

*public teletext provider is defined in clause 348 as the person who holds the licence to provide that service awarded under clause 214 (or, in relation to a time before such a licence is awarded, the holder of the additional services licence under the 1990 Act which relates to the public teletext service).

Clause 238: Local digital television services

511.     The Secretary of State may, by order, extend the provisions of Part 3 of the Bill (except for this clause and any provisions relating exclusively to sound services), or any part of Part 1 of the Broadcasting Act 1990, or of Part 1 of the Broadcasting Act 1996, to local digital television services of the type further described in subsections (3) to (5). Such services should be provided with a view to including them in a television multiplex service. Such an order can be made only where the Secretary of State is satisfied that this will enhance the provision of such services. In turn, this should benefit the locality where the services are to be received, not least by broadening the range of programmes that can be received in that locality. The order may restrict advertising and programme sponsorship in the service.

Chapter 3: Regulatory Structure for Independent Radio Services

Clause 239: Regulation of independent radio services

512.     This clause sets out those independent radio services whose regulation is a function of OFCOM, as specified in subsections (1) and (2). These are national, local or restricted sound broadcasting services (so long as not broadcast solely by satellite); radio licensable content services; additional radio services; radio multiplex services; digital sound programme services; and digital additional sound services. All of these must be broadcast from the United Kingdom and are not to be regulated under this section if they are broadcast by the BBC. OFCOM's regulatory function also extends to the types of service set out above provided from somewhere outside the United Kingdom by a person (other than the BBC) whose principal place of business is in the United Kingdom.

*additional radio service has the meaning given to it by section 114(1) of the Broadcasting Act 1990, namely any radio service which consists in the sending of signals for transmission by wireless telegraphy using the spare capacity within signals carrying any sound broadcasting service.

*digital additional sound service means a digital additional service as defined by section 63 of the Broadcasting Act 1996, being any service which is provided for broadcast in digital form by means of a multiplex service, for general reception within the EEA other than the United Kingdom, but which is not a digital programme service, a qualifying service, an ancillary service or a technical service.

*an ancillary service refers to services that are ancillary to a programme and directly related to its content, or which relate to the promotion or listing of such programmes. Such a service is provided by the holder of a digital programme licence or by an independent analogue broadcaster.

*a technical service is a service provided for the encryption or decryption of digital programme services or digital additional services.

* digital sound programme service, defined in section 40(5) of the Broadcasting Act 1996 (as amended by Schedule 15), means a service consisting in the provision of programmes consisting wholly of sound (together with any ancillary services), with a view to their being broadcast in digital form so as to be available for reception by members of the public (as defined in clause 348, but does not include simulcast radio services or a service where the sounds are to be received through the use of coded reference to pre-defined phonetic elements of sounds.

*radio multiplex service is defined in section 40(1) of the Broadcasting Act 1996 as a service provided by any person which consists in broadcasting, for general reception, two or more digital sound programme services, or simulcast radio services, by combining the relevant information in digital form, together with any broadcasting in digital form of digital additional services.

*radio licensable content service has the same meaning as in clause 241.

*simulcast radio service is defined in section 41(2) of the Broadcasting Act 1996 (as amended by clause 250) as a service which is provided by an independent national broadcaster provided for broadcasting in digital form, which corresponds to a national service provided in some other form.

513.     Subsections (5) and (6) specify when services will be treated as if they are provided from the United Kingdom.

Clause 240: Abolition of function of assigning radio frequencies

514.     This clause removes the Secretary of State's power to assign frequency for the purpose of regulation of radio services, or for the provision of any radio multiplex services.

Clause 241: Meaning of "radio licensable content services"

515.      Broadly, this includes all sound programmes broadcast primarily for reception by members of the public from a satellite, or through an electronic communications network to places in the EEA, whether in analogue or digital form.

Clause 242: Services that are not radio licensable content services

516.     Services that are not radio licensable content services include sound broadcasting services of the type regulated by OFCOM pursuant to clause 239(3), and services provided with a view to their being broadcast by means of radio multiplex services. Nor do they meet the description of a radio licensable content service if they are two-way services (as defined in subsection (4)) forms only part of a service provided by means of electronic networks; or if it forms part only of service provided by means of an electronic communications service that does not consist wholly or mainly in making available television and/or radio programmes for reception by the public; or if they are received only by people who have an interest in receiving the services for use in their business or employment. Finally, a service is not a radio licensable content service where it is distributed to a single set of premises by an electronic network which is contained within the premises and is not connected to any external network.

Clause 243: Modification of ss. 241 and 242

517.     The Secretary of State may modify clauses 241 (and clause 347 insofar as it applies to clause 241) or 242 by order, if she considers it appropriate. In making any modification she must take into account the level of content protection expected by the public; technical innovation; the financial consequences of modification; and the relative ease or difficulty of setting different levels of regulation for different services. The Secretary of State may also provide that a particular service should not be treated as a radio licensable content service for such provisions of this Bill as she specifies.

Clause 244: Licensing of radio licensable content services

518.     An application for this type of licence under Part 3 of the Broadcasting Act 1990 shall follow a procedure to be set by OFCOM. Subsection (3) amends sections 109 to 111A of the Broadcasting Act 1990 which apply in relation to the enforcement of licences for radio licensable content services.

Clause 245: Abolition of separate licences for certain sound services

519.     This clause abolishes the two forms of licence which the radio licensable content service licence replaces. It puts in place transitional provisions so that after the radio transfer date any persons holding one of the abolished licence types is to be regulated by OFCOM as if he held a radio licensable content service licence, unless the service is of a kind that falls outside the definition and so no longer requires a licence at all. To the extent that any existing licence takes effect as a licence to provide a radio licensable content service, OFCOM must use their power under section 86 of the Broadcasting Act 1990 to modify that licence if they feel that it is necessary to do so in order to comply with their duty under clause 255 (see below).

Clause 246: Extension of licence periods

520.     Subsection (1) amends section 86 of the Broadcasting Act 1990 by stating that licences shall continue in force until the earlier of their being surrendered or revoked, and the licences coming to the end of their terms. The exception is for radio licensable content services - they shall continue until the relevant licences are surrendered or revoked. Any licence to provide local, national or additional services must specify a maximum licence period of twelve years.

Clause 247: Extension and modification of existing licences

521.     Where, previously, a newly granted licence to provide a local, national or additional service could not continue in force for more than eight years, this has now been extended to twelve years. To compensate, the holder of a pre-transfer national or local licence can make an application for a four-year extension to that licence, and OFCOM shall make such modification to the licence as they think fit with regard to the period for which the licence is to be extended, the need to make the licence correspond with licences granted after the radio transfer date, and the sums to be paid to OFCOM under the licence. What modifications are made will depend largely on the capability of the licence holder and the likelihood of a contravention by that licence holder of any condition imposed through the modification of the licence or by virtue of section 106 of the Broadcasting Act 1990.

*a pre-transfer licence is defined in subsection (11) as a licence granted under the Broadcasting Act 1990 prior to the radio transfer date that has not been modified under clause 247 or renewed any time on or after that date.

Clause 248: Renewal of local licences

522.     This clause amends section 104A(5) of the Broadcasting Act 1990 (conditions of renewal of local licences). When a renewal application has been made, OFCOM will be required to grant the licence provided the following criteria are met: (i) they are satisfied that the applicant would, if the licence were renewed, provide a local service with any conditions imposed to secure the character of the licensed service (ii) the nominated local digital sound programme service the applicant provides is broadcast by means of a nominated local radio multiplex services; and (iii) they are satisfied that the period and times at which the nominated local digital sound programme service will be available under the renewed licence will not be significantly different, week by week, from those for and at which the licensed local service will be broadcast.

Clause 249: Extension of special application procedure for local licences

523.     This clause amends the type of local services caught by the special application procedure for local licences under section 104B of the Broadcasting Act 1990.

Clause 250: Definition of simulcast radio services

524.     This clause amends the definition of simulcast radio services found in section 41 of the Broadcasting Act 1996. Broadly, they are services provided for broadcasting in digital form and which correspond to national services, as defined by clause 239(4)(a).

Clause 251: Promotion of simulcast radio services

525.     This clause amends Chapter 2 of Part 3 (sound broadcasting services) of the Broadcasting Act 1990 so that OFCOM promotes the use of simulcast radio services. When OFCOM propose to award a national service licence, they must indicate the amount of digital capacity that national radio multiplex licensees will have available for the broadcasting of simulcast radio services.

*A national radio multiplex licence has the same meaning as in Part 2 (digital terrestrial sound broadcasting) of the Broadcasting Act 1996.

526.     An application for a national service licence must contain details (if any) for providing simulcast radio services. When determining the recipient of a national service licence, OFCOM may disregard the requirement under section 100 of the Broadcasting Act 1990 to award the licence to the highest bidder where an applicant proposes to provide simulcast radio services. In the event of a tie between the highest bidders, OFCOM shall also have the power to exclude applicants who do not propose to provide simulcast radio services.

527.     Finally, subsection (6) confers on OFCOM the power to impose conditions in a national service licence requiring a licensee to provide simulcast radio services where his application included proposals to provide such services.

Clause 252: Radio multiplex services

528.     Where a multiplex service is referred to in Part 2 of the Broadcasting Act 1996, it shall mean a service broadcast otherwise than by satellite so as to be available to members of the public. This service shall provide, or be capable of providing, two or more digital sound services for simultaneous broadcast on the same frequency block.

529.     Subsection (3) provides that it will not be an offence to provide a radio multiplex service that is not licensed under the Broadcasting Act 1996. Only where a wireless telegraphy licence provides that any radio multiplex service being broadcast under that licence must itself be licensed, shall that multiplex service require a licence. This will be assumed in cases where the multiplex service is provided under a licence under the Broadcasting Act 1996 that was in force immediately before this clause comes into force and the service is broadcast using a station or apparatus that is authorised by a wireless telegraphy licence.

Clause 253: Digital sound services for inclusion in non-radio multiplexes

530.     This clause amends the definition of national digital sound programme services in section 60 of the Broadcasting Act 1996. Such services may now be carried by a national radio multiplex service, a television multiplex service, or even a general multiplex service.

531.     Subsection (2) amends the definition of digital additional sound services, in section 63 of the same Act, to encompass such services whether provided by means of a radio multiplex service or a general multiplex service.

532.     A general multiplex service is defined in section 72 of that Act as being a multiplex service that is neither a television multiplex service nor a radio multiplex service.

Clause 254: Access radio

533.     The Secretary of State may by order modify the Bill and the Broadcasting Acts, to make special provision for radio services broadcast mainly for the benefit of the public (or members of a particular community) rather than for commercial reasons. The services should confer significant benefits on the public for which they are provided. The order may restrict advertising and programme sponsorship in the service.

Chapter 4: Regulatory Provisions

Clause 255: Application of regulatory regimes

534.     OFCOM must use their Broadcasting Act powers, and their powers under this Bill, to implement and enforce the regulatory regime for each licensed service. The Secretary of State has the power to remove any condition from the regulatory regime.

Clause 256: OFCOM reports on the fulfilment of the public service remit

535.     OFCOM are to prepare - twelve months after commencement of the Bill, and thereafter no less frequently than every five years - a report on the current state of public service television broadcasting, documenting the extent to which broadcasters have together satisfied the requirements of the public service television broadcasting remit set out in this clause. In essence, the remit involves the provision of a balanced diversity of high-quality programming, which meets the needs and interests of different audiences.

536.     OFCOM are also to have regard to the more detailed obligations listed in subsection (6) and consider the costs to the broadcasters of fulfilling their public service television remit and their available resources. These include obligations relating to culture, news and current affairs, sport, education, entertainment, programming for children, and local programming. OFCOM are also to ensure that a sufficient number of programmes within the service are made outside the M25 area.

*the public service broadcasters listed in subsection (12) are the BBC, the Welsh Authority, providers of licensed public service channels, and the public teletext provider.

Clause 257: Public service remits of licensed providers

537.     A public service remit applies to each licensed public service channel. For Channel 3 services, and Channel 5, the remit is to provide a range of high quality and diverse programming. For Channel 4, the remit specifically includes the need for programming to be innovative, creative and distinctive, for it to take account of cultural diversity and to make a significant contribution to meeting the need for licensed public service channels to include educational programmes. For the public teletext service (transmitted in both analogue and digital form) the remit is to provide a range of high quality and diverse text material. Licences relating to each of these shall include a condition requiring that the public service remit be satisfied.

Clause 258: Statements of programme policy

538.     The provider of a licensed public service channel must publish an annual statement of programme policy, and must review its performance against this statement. The statement must demonstrate how, in the coming year, the broadcaster will satisfy its public service remit, as well as those more specific programming obligations under clauses 269 to 286 of the Bill, and how successful it was in doing so in the previous year.

539.     Subsection (4) provides that the statement should take account of OFCOM guidance on its preparation, and should have regard to the reports of OFCOM as described in the notes to clause 256 above, and 344 below. Particular regard should be had to the latest such report. Subsection (7) states that licences for public service channels may include conditions relating to the treatment of any "previous statement of policy" made by the licensee. However, subsection (9) provides that such conditions may not postpone the time at which the licensee is required to make his first statement of programme policy under this section.

540.     The first statement should be published as soon as possible after this section comes into force. The term "previous statement of policy" is defined in subsection (8).

Clause 259: Changes of programme policy

541.     The statement described in the notes to clause 258 above must not contain proposals for what is to be regarded (taking account of OFCOM's guidance) as a material change in the character of the channel unless OFCOM have been consulted and the provider of the channel has taken account of OFCOM's views. If this process has not been followed, OFCOM may insist that the provider publish a revised statement that has been approved by OFCOM. In determining what constitutes a material change regard is to be had to OFCOM guidance and to the time over which the change (and any related change) will take effect. OFCOM is obliged to review its guidance from time to time and amend it as appropriate.

Clause 260: Statements of service policy by the public teletext provider

542.     This clause sets out similar requirements to clause 258. The provider of public teletext must publish an annual statement of policy, and must review its performance against this statement. The statement must demonstrate how, in the coming year, the provider will satisfy its public service remit and how successful it was in doing so in the previous year. The statement must also address, where relevant, both analogue and digital teletext services.

543.     Subsection (5) provides that the statement should take account of OFCOM guidance on its preparation, and should have regard to the reports of OFCOM as described in the notes to clause 256 above. Particular regard should be had to the latest such report. Subsection (7) states that licences for the public teletext provider may include conditions relating to the treatment of any "previous statement of policy" made by the licensee. However, subsection (9) provides that such conditions may not postpone the time at which the licensee is required to make his first statement pf programme policy under this section.

544.     The first statement should be published as soon as possible after this section comes into force. The term "previous statement of policy is defined in subsection (9).

 
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Prepared: 20 November 2002