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

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Clause 285: Involvement of C4 Corporation in programme-making

592.     OFCOM are to include in the Channel 4 licence a condition prohibiting the Channel 4 Corporation from being involved in making programmes to be aired on Channel 4, except as permitted by OFCOM.

Clause 286: Schools programmes on Channel 4

593.      OFCOM are to include (following consultation with the C4 Corporation) in the Channel 4 licence any conditions necessary to ensure that Channel 4 broadcasts a sufficient proportion of schools programmes. This may be achieved by setting a minimum number of hours (in term time or within normal school hours) that must be dedicated to schools programming. The Channel 4 Corporation may also be required to finance the production of schools programmes, to acquire such programmes from others and/or to produce any materials that may be necessary to ensure the effective use of such programmes. The programming should be of a high standard and in producing their schools programmes the Channel 4 Corporation should consult such relevant persons as OFCOM directs. OFCOM must consult the Channel 4 Corporation before imposing any conditions under this clause.

*schools programmes are defined in subsection (12) as programmes which are intended for use in schools.

594.     Subsection (11) provides that the requirement in section 34 of the Broadcasting Act 1990, that a suitable proportion of the programmes which are included in Channel 3 services and Channel 4 and 5 (taken as a whole) are schools programmes (emphasis added), shall no longer apply. In other words, the obligation on Channel 4 is a stand-alone obligation that applies regardless of the quantity of schools output in Channel 3 services and Channel 5. However, in deciding on the amount of schools programming that should be provided on Channel 4, OFCOM must take into account all other services, facilities and materials that the Channel 4 Corporation provide to schools.

Clause 287: Channel 4 contribution towards national television archive

595.     This clause amends section 185 of the Broadcasting Act 1990 to allow OFCOM to determine the amount of money that the holder of the Channel 4 licence must contribute after the television transfer date towards the expenses of maintaining a television archive for the United Kingdom.

596.     Section 185 already requires such contributions from holders of Channel 3 and 5 licences and similar arrangements apply to the BBC under the BBC Agreement.

Clause 288: Conditions prohibiting interference with other services

597.     OFCOM must include in the licence for the public teletext service conditions that prohibit the public teletext service provider from causing interference with any television broadcasting service on whose frequency it is provided or any other wireless telegraphy transmissions.

Clause 289: Categorisation of listed events

598.     This clause amends section 97 of the Broadcasting Act 1996 to provide for the existing concept of 'listed events' to be divided into two categories, called 'group A' and 'group B'. Listed events are sporting or other events of national interest, which the Secretary of State has listed for the purpose of attracting the legal consequences provided for by Part 4 of the 1996 Act. The amendment requires all listed events to be allocated to one of these groups. When an event is listed, the Secretary of State will allocate it to a group, and she may decide to move a listed event from one group to another, subject to the same consultation requirements that already apply to a decision to list an event. The existing requirement to consult the ITC is replaced by one to consult OFCOM.

Clause 290: Effects of categorisation of listed events

599.     Subsection (1) amends section 99(1) of the Broadcasting Act 1996 so that it applies only to Group A listed events. Section 99(1) makes a contract void if it purports to grant exclusive rights to televise a listed event live for reception in the UK. It will, therefore, become possible for valid contracts to be made granting such exclusive rights in relation to group B events.

600.     Subsection (2) amends section 101 of the Broadcasting Act 1996. That section currently prohibits a television service provider who provides, for reception in the UK, a service falling within either of the categories set out in section 98(1) of the 1996 Act from including in that service live coverage of the whole or any part of a listed event unless either the live rights have also been acquired by another person providing a service in the other of those two categories, or the ITC has given its consent. As well as replacing references to the ITC with references to OFCOM, the amendment introduces a new ground on which live coverage can be included without satisfying either of those existing grounds. The new ground applies only to group B events, and requires that rights to provide adequate alternative coverage have been acquired by one or more persons, other than the person proposing to include the live coverage in his service, who satisfy the requirements of regulations made under section 104ZA of the 1996 Act (which is inserted by clause 292 of the Bill). The amendments also make minor drafting improvements.

Clause 291: Code relating to listed events

601.     This clause amends section 104 of the Broadcasting Act 1996, which makes provision for an ITC Code for various purposes of Part 4 of the Act. The amendment transfers responsibility to OFCOM and repeals one of the Code's existing functions, that of specifying the circumstances in which the televising of listed events is, or is not, to be treated as live for various purposes of Part 4 (which becomes instead a function of regulations under section 104A, which is inserted by clause 292 of the Bill).

602.     Paragraph 45 of Schedule 18 provides that until OFCOM draw up a code under this clause, the code drawn up by the ITC under section 104 of the Broadcasting Act 1996 shall have effect.

Clause 292: Regulations about coverage of listed events

603.     This clause inserts a new section 104ZA into the Broadcasting Act 1996 enabling OFCOM to make regulations for determining, for the purposes of Part IV of that Act, first, the circumstances in which the televising of listed events is, or is not, to be treated as live and, secondly, what is to be taken to represent the provision of adequate alternative coverage (the first function was formerly one of the Code drawn up under section 104, and the second is relevant to the amendment of section 101 made by clause 290 of the Bill).

Clause 293: Code relating to provision for deaf and visually impaired

604.     This clause provides that OFCOM are to draw up, publish and maintain a code giving guidance as to the extent to which the services to which the clause applies should promote the understanding and enjoyment by persons who are deaf or hard of hearing, and persons who are blind or partially-sighted. Subsections (2) and (3) set out the targets for the proportion of programmes contained in those services set out at subsection (10) that shall, within 10 years of the 'relevant date' (which is defined in clause 295 ), be respectively subtitled, audio-described, and presented in or translated into sign language. The total of programmes from which that proportion is set shall exclude such programmes as OFCOM consider should be excluded under subsection (5) having regard to the factors set out in subsection (6). OFCOM may also set interim targets and exclude different descriptions of programmes in relation to different services. Where OFCOM is satisfied that a service is a special case they may exclude all the programmes in that service.

Clause 294: Procedure for issuing and revising code under s. 293

605.     Before drawing up the code described in the notes to clause 293 above, OFCOM shall, as they see fit, consult with representatives of the deaf or hard of hearing, and blind or partially-sighted, as well as with those providing the relevant services. When the code is published it shall be in a form easily accessed by those who are deaf or hard of hearing, and those who are blind or partially-sighted.

Clause 295: Meaning of "relevant date" in s. 293

606.     This clause defines "relevant date" for the purposes of clause 293. The definition varies according to the service in question, and when provision of that service commenced.

Clause 296: Power to modify targets in s. 293

607.     The Secretary of State, following consultation with OFCOM, may by order vary the target percentages set out in subsection (3) of clause 293. She may also extend the deadline for those targets to be reached, and include additional obligations in the code.

Clause 297: Observance of code under s. 293

608.     OFCOM are to include in the licence for every service to which this clause applies (namely, any of the services listed in clause 293(10)) conditions requiring that the code provided for in clause 293 is observed.

Clause 298: Quotas for independent programmes

609.     OFCOM are to include in every licence for a digital television programme service that is not comprised in a licensed public service channel conditions to secure that at least 10 per cent of the time allocated to the broadcasting of qualifying programmes in the service is allocated to the broadcasting of a range and diversity (judged both in terms of the types of programmes involved and of the cost of their acquisition) of independent productions. The Secretary of State may, by order, and having consulted OFCOM, vary this percentage and determine what are to be considered "qualifying programmes" and "independent productions".

Clause 299: Code of practice for electronic programme guides

610.     OFCOM must draft and maintain a code of practice for electronic programme guides. This may extend to ensuring that programmes on public service channels are adequately listed or promoted in, and made accessible from, the guide.

*an electronic programme guide is defined, for the purposes of this clause, in subsection (6) as a service which comprises (i) the listing and/or promotion 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 (ii) a facility for obtaining access, in whole or in part, to the programme service so far as it is promoted or listed in the guide. This service is to be included in a television licensable content service, a digital television programme service, or a digital additional television service.

611.     For the purposes of these provisions the public service channels are the BBC's television services in digital form, any Channel 3 service in digital form, Channel 4 in digital form, Channel 5 in digital form, S4C digital, and the digital public teletext service. Subsection (4) provides the Secretary of State with a power to amend this list by order though she must not do so without consulting OFCOM.

Clause 300: Conditions to comply with code under s. 299

612.     OFCOM are to include in every licence for a service which comprises or includes the provision of an electronic programme guide conditions to secure the observation of the code provided for in clause 299.

Clause 301: Character and coverage of sound broadcasting services

613.     This clause amends section 106 of the Broadcasting Act 1990 dealing with the character and coverage of radio services. Broadly, OFCOM are to set such conditions as are necessary for maintaining the character of the service. OFCOM may only consent to a departure from the original character if such a departure would not greatly change that character, if the departure would not narrow the range of relevant independent radio services available in the area covered by the service, and in the case of local licences, there is user demand for the changes that the departure would effect of that the departure would be pro-competitive.

*Relevant independent radio services consist of sound broadcasting services, radio licensable content services and additional radio services that fall within the scope of OFCOM's regulatory functions under clause 239.

614.     OFCOM may allow a local licence holder to extend the area to which he broadcasts, but only if such an extension is not significant and is justified by exceptional circumstances.

Clause 302: Local content and character of local sound broadcasting services

615.     Subsection (1) imposes a duty on OFCOM to ensure that local sound broadcasting services contain local content and retain the character of local radio. They must also secure that other connections between each such service and the relevant area are established and maintained. OFCOM are required to draft, publish and maintain a code giving guidance as to when local sound broadcasting services satisfy the requirements of subsection (1) and have regard to the code when carrying out their functions in relation to local sound broadcasting services. OFCOM's guidance may extend to such issues as providing descriptions of local content, the inclusion of locally-made programmes and local advertisements, the employment, training and development of members of the local community and use of local premises. Subsection (7) requires OFCOM to consult with persons having an interest in local sound broadcasting services before drafting or revising the code.

Clause 303: Variations of radio multiplex licences affecting service characteristics

616.     This clause amends subsection (6) of section 54 of the Broadcasting Act 1996 and inserts subsections (6A) and (6B). Upon the request of a radio multiplex licensee to vary a licence condition implementing a proposal submitted in his original application submitted under sections 46(4) or 50(4) of the Broadcasting Act 1996 relating to the number of digital sound programmes services and the characteristics of each service to be broadcast, the timetable for the launch for those services, the broadcasting of digital additional services, the promotion of digital receivers by the listening public, his financial position and his technical plan relating to the service, OFCOM must vary the licence as requested, subject to tests set out in subsections (6A) and (6B).

617.     Section 54(6A) provides that OFCOM may not vary a national radio multiplex licence where it appears that, if the requested amendment were made, the capacity of the digital sound programme services broadcast under the licence to appeal to a variety of tastes and interests would be unacceptably diminished.

618.     Section 54(6B) stipulates that OFCOM may only vary a local radio multiplex licence where they are satisfied that:

  • the variation would not unacceptably narrow the range of programmes available to people living in the areas where the multiplex service is provided;

  • the variation is pro-competitive; and

  • there is user demand for the changes to the services.

Clause 304: Conditions relating to competition matters

619.     Under clause 357, OFCOM will have concurrent jurisdiction with the DGFT to apply and enforce Part 1 of the Competition Act 1998, with the exception of section 38, subsections (1) to (6), and section 51 (which latter provisions apply to the DGFT alone). This means that OFCOM will be able to exercise almost all of the functions of the OFT under Part 1 of the 1998 Act is so far as they relate to activities connected with communications matters.

620.     Clause 304 makes specific provision for OFCOM to have powers, in addition to those concurrent powers under the Competition Act, to ensure fair and effective competition in the provision of licensed services and connected services. This gives OFCOM competition powers specific to the broadcasting sector. Subsection (3) provides that, in ensuring fair and effective competition between licence holders, OFCOM can issue guidance (a code) to licensees on the specifics of how this should be achieved and that they can issue directions to individual licensees for that purpose.

Clause 305: Exercise of Broadcasting Act powers for a competition purpose

621.     This clause applies to OFCOM's Broadcasting Act powers, as defined in subsection (1). Subsection (2) provides that OFCOM should not use the sector-specific Broadcasting Act powers provided in clause 304, where they consider that a more appropriate way of proceeding would be through the use of their general competition powers under the Competition Act 1998.

622.     Subsection (4) provides that where OFCOM have considered that the exercise of their Broadcasting Act powers for a competition purpose is the most appropriate route, the route of appeal against any decisions under these powers shall be to the Competition Appeals Tribunal. Subsection (6) limits the jurisdiction of the Tribunal in any such appeal. This clause does not apply to the exercise by OFCOM of any of their powers under clauses 280 to 284 or Schedule 11 or any of their powers relating to any condition included in a licence by virtue of any of those clauses.

Clause 306: Review of powers exercised for competition purposes

623.     This clause provides for OFCOM periodically to review any guidance or codes or directions that they issue in respect of their Broadcasting Act competition powers and that they must consult on any changes they propose to make.

Clause 307: OFCOM's standards code

624.     Subsection (1) places OFCOM under a duty to set standards for the content of television and radio services, which shall be contained in a code or codes.

625.     These codes should safeguard the objectives set out in subsection (2), such objectives relating to the protection of minors; the prohibition of material likely to encourage crime or disorder; the impartiality of broadcasting services; the accuracy of the news; the content of religious programmes; the protection of the public from offensive and harmful material; the prevention of unsuitable advertising and sponsorship; the prevention of undue discrimination between advertisers; and the prohibition of broadcasts of subliminal material.

626.     A particular standards objective relates to responsible religious broadcasting. Subsection (6) expands upon this to safeguard against the improper exploitation of religious susceptibilities or the abusive treatment of religious views or beliefs, and against improperly taking advantage of the audience's religious susceptibilities.

627.     Subsection (5) makes clear that, while some minimum standards will be of general application, OFCOM are also under a duty to set standards for particular types of programme or service (for example, children's programmes) where OFCOM consider that such standards are necessary to achieve the objectives contained in subsection (2).

628.     In setting the codes, OFCOM are under a duty to have regard to the factors set out in subsection (4). These concern the degree of harm or offence like to be caused by the content of programmes; the probable size and composition of the audience; the expectation and state of awareness of the audience as to a programme's content; the danger of accidental exposure of a person to content, the nature of which they were unaware; the desirability of indicating when there is a change affecting the nature of the service being watched or listened to; and maintaining independent editorial control over the content of a programme.

629.     Paragraph 39 of Schedule 18 provides that any code drawn up under section 6, 7, 9, 90, 91 or 93 of the Broadcasting Act 1990 shall have effect as if it were a code issued by OFCOM for the purpose of this clause. However, codes drawn up under the Broadcasting Act 1990 shall only apply to services provided under Broadcasting Act licences and, in the case of codes under section 6, 7 and 9 of that Act, S4C. As regards codes drawn up under section 108 of the Broadcasting Act 1996, these will only affect services provided by the BBC or the Welsh Authority and then only to the extent that the codes contain provisions applying to those services and, in the case of the Welsh Authority, which relate to matters other than advertising and impartiality.

Clause 308: Special impartiality requirements

630.      This clause specifies particular requirements, some of which are to be expanded upon in OFCOM's standards code, placed upon service providers to ensure that programmes services are free from bias. Subsection (1) lists these requirements as regards politics, public policy and controversial industrial matters:

  • the service provider must not air its own views on such matters (unless they concern television or sound broadcasting);

  • as regards television broadcasting services, teletext service, national radio services and national digital sound broadcasting services, the service provider must remain impartial about such matters, particularly major matters of political or industrial controversy or relating to current public policy. Fulfilment of this requirement need not necessarily be measured programme by programme, but on balance over all programmes included in the relevant service; and

  • as regards local radio services, local digital sound programme services, and radio licensable content services, the service provider must ensure that disproportionate weight is not given to any particular viewpoint about such matters. This need be satisfied only by considering the entire service, rather than programme by programme, or even series by series.

Clause 309: Objectives for advertisements and sponsorship

631.     Standards set by OFCOM must ensure that the inclusion of unsuitable advertising in television and radio is prevented. This clause deals with the specific objectives for advertisements and sponsorship. Subsection (1) requires the standards set by OFCOM to include general provisions about the required standards in advertising and sponsorship and permits OFCOM to prohibit advertisements and methods of advertising and sponsorship.

632.     Subsection (4) imposes on OFCOM a duty to secure a general prohibition on political advertising and advertising related to industrial disputes in the broadcast media. This reproduces the duty imposed under the Broadcasting Act 1990 on the ITC and the Radio Authority to secure a similar prohibition. Subsection (7) specifies that an advertisement of a public service nature which is inserted by or on behalf of a government department, and a party political broadcast which complies with the rules for such broadcasts, may nonetheless be broadcast. Unlike the previous rules that the ITC and Radio Authority were required to impose under the Broadcasting Act 1990, the Bill sets out in subsection (3) the matters which are included in the reference to "objects of a political nature" and "political ends" in subsection (2) so as to make clear the scope of the prohibition. These include each of the following: influencing the outcome of elections or referendums in the UK or elsewhere; bringing about changes in the law or otherwise influencing the legislative process in the UK or elsewhere; influencing the policies or decisions of local, regional or national governments in the UK or elsewhere; influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the UK or of a country or territory outside the UK; influencing the policy or decisions of persons on whom functions are conferred by or under international agreements; influencing public opinion on a matter which in the UK is a matter of public controversy; and promoting the interests of a party or other group of persons organised in the UK or elsewhere for political ends.

633.     It is because of the ban that this clause would impose on political advertising that, in the light of the decision of the European Court of Human Rights in the case of Vgt Verein gegen Tierfabriken v Switzerland, the Minister in charge of the Bill was unable to make a statement of compatibility under section 19(1)(a) of the Human Rights Act 1998. The fact that the Minister made a statement under section 19(1)(b) of that Act does not, however, mean that the Government believes the ban would necessarily be found to be incompatible if the ban were to be challenged in the United Kingdom courts or to be considered by the European Court of Human Rights.

634.     More generally, subsection (5) and (6) provide for consultation by OFCOM with the Secretary of State regarding the descriptions of advertisements that should not be included in programme services; and the forms and types of advertising and sponsorship that should not be used. In addition, the Secretary of State has a power to issue directions (with which OFCOM must comply) on any of those matters.

Clause 310: Supplementary powers relating to advertising

635.     This clause requires all licences related to the provision of television broadcasting services, the public teletext service and other teletext services (where either additional television or digital additional television services) to include a condition that the licence holder must comply with OFCOM's directions on the maximum time to be given to advertisements in any given time period, the minimal interval that must elapse between two periods of advertisements, the number of advertisement slots that are allowed in any programme or hour or day, and the exclusion of any advertisement from a specified part of a service.

Clause 311: Modification of matters to be taken into account under s. 307

636.     This clause provides that the Secretary of State, following consultation with OFCOM, may modify the factors set out in clause 307(4) to be considered by OFCOM when setting or amending standards codes.

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Prepared: 20 November 2002