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(10) Subsection (8) of section 219 applies for construing references in this section to | |
the date for digital switchover as it applies for the purposes of that section. | |
(11) In this section— | |
“initial licensing period” means the licensing period ending with the initial | |
expiry date; and | 5 |
“licensing period” has the same meaning as in section 224. | |
Replacement of Channel 4 licence | |
226 Replacement of Channel 4 licence | |
(1) On the commencement of this subsection— | |
(a) Channel 4 shall cease to be licensed under the licence in force for the | 10 |
purposes of section 24(3) of the 1990 Act immediately before the | |
commencement of this subsection; and | |
(b) a licence granted for those purposes in accordance with the following | |
provisions of this section shall come into force as the licence under | |
which Channel 4 is licensed. | 15 |
(2) It shall be the duty of OFCOM, as soon as practicable after the television | |
transfer date— | |
(a) to prepare a draft of a licence under Part 1 of the 1990 Act to replace the | |
licence that is likely to be in force for the purposes of section 24(3) of the | |
1990 Act when subsection (1) of this section comes into force; | 20 |
(b) to notify C4C of the terms and conditions of the replacement licence | |
they propose; and | |
(c) after considering any representations made by C4C, to grant such a | |
replacement licence to C4C so that it takes effect in accordance with | |
paragraph (b) of subsection (1) of this section. | 25 |
(3) A replacement licence proposed or granted under this section— | |
(a) must be a licence to provide a service with a view to its being broadcast | |
in digital form; and | |
(b) must contain such conditions (if any) requiring C4C to ensure that the | |
whole or a part of Channel 4 is also provided for broadcasting in | 30 |
analogue form as OFCOM consider appropriate. | |
(4) The conditions included in a licence by virtue of subsection (3)(b) must be such | |
as to enable effect to be given to any directions given from time to time by the | |
Secretary of State to OFCOM about the continuance of the provision of services | |
in analogue form. | 35 |
(5) Where a replacement licence proposed or granted under this section contains | |
a condition falling within subsection (3)(b), it must also contain a condition | |
that— | |
(a) the programmes (apart from the advertisements) that are included in | |
the service provided in analogue form, and | 40 |
(b) the times at which they are broadcast, | |
are to be the same as in the case of, or of the specified part of, the service | |
provided for broadcasting in digital form. | |
(6) The terms of a replacement licence proposed or granted under this section | |
must provide for it to continue in force until the end of 2014. | 45 |
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(7) But— | |
(a) such a licence may be renewed, on one or more occasions, for such | |
period as OFCOM may think fit in relation to the occasion in question; | |
and | |
(b) the provisions of this section (apart from subsections (1), (2) and (6)) are | 5 |
to apply in the case of a licence granted by way of a renewal of a licence | |
granted under this section as they apply in the case of the replacement | |
licence. | |
(8) The conditions of a replacement licence proposed or granted under this section | |
must include the conditions that OFCOM consider appropriate for the purpose | 10 |
of performing their duty under section 256. | |
(9) The conditions of such a licence must also include a condition prohibiting the | |
imposition, whether directly or indirectly, of the following— | |
(a) charges on persons in respect of their reception in the United Kingdom | |
of Channel 4; | 15 |
(b) charges on persons in respect of their reception in the United Kingdom | |
of any service consisting in the provision of assistance for disabled | |
people in relation to programmes included in Channel 4; and | |
(c) charges on persons in respect of their reception in the United Kingdom | |
of any service (other than one mentioned in paragraph (b)) which is an | 20 |
ancillary service in relation to so much of Channel 4 as is provided in | |
digital form. | |
(10) It shall be unlawful to impose a charge in contravention of a condition falling | |
within subsection (9). | |
Television licensable content services | 25 |
227 Meaning of “television licensable content service” | |
(1) In this Part “television licensable content service” means (subject to section 228) | |
any service falling within subsection (2) in so far as it is provided with a view | |
to its availability for reception by members of the public being secured by one | |
or both of the following means— | 30 |
(a) the broadcasting of the service (whether by the person providing it or | |
by another) from a satellite; or | |
(b) the distribution of the service (whether by that person or by another) by | |
any means involving the use of an electronic communications network | |
to places in any of the EEA States. | 35 |
(2) A service falls within this subsection if it— | |
(a) is provided (whether in digital or in analogue form) primarily as a | |
service that is to be made available for reception by members of the | |
public; and | |
(b) consists (with or without relevant ancillary services) of television | 40 |
programmes or electronic programme guides, or both. | |
(3) In this section— | |
“electronic programme guide” means a service which consists of— | |
(a) the listing or promotion, or both the listing and the promotion, | |
of some or all of the programmes included in any one or more | 45 |
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(a) programme services the providers of which are or include | |
persons other than the provider of the guide; and | |
(b) a facility for obtaining access, in whole or in part, to the | |
programme service or services listed or promoted in the guide; | |
“relevant ancillary service” means a service the provision of which | 5 |
consists in the provision of— | |
(a) subtitling for the deaf in connection with any television | |
programmes included in a television licensable content service | |
provided by the same person as the subtitling; or | |
(b) other services which are not advertising but which— | 10 |
(i) are ancillary to any such programmes and relate to their | |
contents; or | |
(ii) relate to the promotion or listing of such programmes. | |
228 Services that are not television licensable content services | |
(1) A service is not a television licensable content service to the extent that it is | 15 |
provided with a view to its being broadcast by means of a multiplex service. | |
(2) A service is not a television licensable content service to the extent that it | |
consists of a service the provision of which is authorised by— | |
(a) a licence to provide a television broadcasting service; | |
(b) the licence to provide the public teletext service; or | 20 |
(c) a licence to provide additional television services. | |
(3) A service is not a television licensable content service to the extent that it is | |
provided by means of an electronic communications service if— | |
(a) it forms part only of a service provided by means of that electronic | |
communications service; and | 25 |
(b) the purposes for which the service of which it forms a part is provided | |
do not consist wholly or mainly in making available television | |
programmes or radio programmes (or both) for reception by members | |
of the public. | |
(4) A service is not a television licensable content service if it is a two-way service | 30 |
provided by means of an electronic communications network. | |
(5) A service is a two-way service for the purposes of subsection (4) if an essential | |
feature of the service is that the purposes for which it is provided involve the | |
use of the electronic communications network, or the part of it, by means of | |
which the service is provided both— | 35 |
(a) for the transmission of visual images or sounds (or both) by the person | |
providing the service to users of the service; and | |
(b) for the transmission of visual images or sounds (or both) by those users | |
for reception by the person providing the service or by other users of | |
the service. | 40 |
(6) A service is not a television licensable content service if— | |
(a) it is distributed by means of an electronic communications network | |
only to persons all of whom are on a single set of premises; and | |
(b) that network is wholly within those premises and is not connected to | |
an electronic communications network any part of which is outside | 45 |
those premises. | |
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(7) For the purposes of subsection (6)— | |
(a) a set of premises is a single set of premises if, and only if, the same | |
person is the occupier of all the premises; and | |
(b) two or more vehicles are capable of constituting a single set of premises | |
if, and only if, they are coupled together. | 5 |
(8) A service is not a television licensable content service if it is provided for the | |
purpose only of being received by persons who have qualified as users of the | |
service by reason of being— | |
(a) persons who have a business interest in the programmes included in | |
the service; or | 10 |
(b) persons who are to receive the programmes for the purpose only of | |
showing them to persons falling within sub-paragraph (a) or to persons | |
all of whom are on the business premises of the person receiving them. | |
(9) For the purposes of subsection (8) a person has a business interest in | |
programmes if he has an interest in receiving or watching them— | 15 |
(a) for the purposes of a business carried on by him; or | |
(b) for the purposes of his employment. | |
(10) In this section— | |
“business premises”, in relation to a person, means premises at or from | |
which any business of that person is carried on; | 20 |
“multiplex service” means a television multiplex service, a radio | |
multiplex service or a general multiplex service; | |
“premises” includes a vehicle; | |
“vehicle” includes a vessel, aircraft or hovercraft. | |
(11) References in this section, in relation to a person, to a business include | 25 |
references to— | |
(a) any business or other activities carried on by a body of which he is a | |
member and the affairs of which are managed by its members; and | |
(b) the carrying out of any functions conferred on that person, or on any | |
such body, by or under any enactment. | 30 |
229 Modification of ss. 227 and 228 | |
(1) The Secretary of State may by order modify any of the provisions of section 227 | |
or 228 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 | 35 |
programmes and services are received or may be accessed, is expected | |
by members of the public as respects the contents of television | |
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 | 40 |
exercising control, by reference to the contents of the programmes, over | |
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 | 45 |
modification of the provisions of that section; and | |
(e) technological developments that have occurred or are likely to occur. | |
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(2) The Secretary of State may also by order provide, in cases where it otherwise | |
appears to him appropriate to do so, that a description of service specified in | |
the order is not to be treated as a television licensable content service for the | |
purposes of the provisions of this Act that are so specified. | |
(3) No order is to be made containing provision authorised by this section unless | 5 |
a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | |
230 Licensing of television licensable content services | |
(1) The licence that is required for the purposes of section 13 of the 1990 Act in | |
respect of a television licensable content service is a licence granted under Part | 10 |
1 of that Act on an application complying with this section. | |
(2) An application for a licence to provide a television licensable content service— | |
(a) must be made in such manner, | |
(b) must contain such information about the applicant, his business and | |
the service he proposes to provide, and | 15 |
(c) must be accompanied by such fee (if any), | |
as OFCOM may determine. | |
(3) Where an application is made to OFCOM in accordance with subsection (2) for | |
a licence to provide a television licensable content service, OFCOM are entitled | |
to refuse the application only if— | 20 |
(a) they are required to do so by section 3(3) of the 1990 Act (licences to be | |
held only by fit and proper persons); | |
(b) they are required to do so by section 5 of the 1990 Act (restrictions on | |
the holding of licences); or | |
(c) they are satisfied that, if the application were to be granted, the | 25 |
provision of the service would be likely to involve contraventions of— | |
(i) standards set under section 309 of this Act; or | |
(ii) the provisions of a code of practice in force under Part 5 of the | |
1996 Act (fairness). | |
(4) The provision of more than one television licensable content service shall | 30 |
require a separate licence under Part 1 of the 1990 Act to be granted and held | |
in respect of each service. | |
(5) A single licence to provide a television licensable content service may authorise | |
the provision of a service which consists (to any extent) of different | |
programmes to be broadcast simultaneously, or virtually so, on different | 35 |
frequencies. | |
(6) A licence to provide a television licensable content service shall continue in | |
force until such time as it is surrendered or is revoked in accordance with any | |
of the provisions of this Chapter or of the 1990 Act. | |
231 Direction to licensee to take remedial action | 40 |
(1) This section applies if OFCOM are satisfied— | |
(a) that the holder of a licence to provide a television licensable content | |
service has contravened a condition of the licence; and | |
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(b) that the contravention can be appropriately remedied by the inclusion | |
in the licensed service of a correction or a statement of findings (or | |
both). | |
(2) OFCOM may direct the licence holder to include a correction or a statement of | |
findings (or both) in the licensed service. | 5 |
(3) A direction may require the correction or statement of findings to be in such | |
form, and to be included in programmes at such time or times, as OFCOM may | |
determine. | |
(4) OFCOM are not to give a person a direction under this section unless they have | |
given him a reasonable opportunity of making representations to them about | 10 |
the matters appearing to them to provide grounds for the giving of the | |
direction. | |
(5) Where the holder of a licence includes a correction or a statement of findings | |
in the licensed service in pursuance of a direction under this section, he may | |
announce that he is doing so in pursuance of such a direction. | 15 |
(6) If OFCOM are satisfied that the inclusion of a programme in a television | |
licensable content service involved a contravention of a condition of the licence | |
to provide that service, they may direct the holder of the licence not to include | |
that programme in that service on any future occasion. | |
(7) Where OFCOM— | 20 |
(a) give a direction to a BBC company under subsection (2), or | |
(b) receive representations from a BBC company by virtue of subsection | |
(4), | |
they must send a copy of the direction or representations to the Secretary of | |
State. | 25 |
(8) For the purposes of this section a statement of findings, in relation to a case in | |
which OFCOM are satisfied that the holder of a licence has contravened the | |
conditions of his licence, is a statement of OFCOM’s findings in relation to that | |
contravention. | |
232 Penalties for contravention of licence condition or direction | 30 |
(1) If OFCOM are satisfied that the holder of a licence to provide a television | |
licensable content service— | |
(a) has contravened a condition of the licence, or | |
(b) has failed to comply with a direction given by OFCOM under or by | |
virtue of a provision of this Part, Part 1 of the 1990 Act or Part 5 of the | 35 |
1996 Act, | |
they may serve on him a notice requiring him to pay them, within a specified | |
period, a specified penalty. | |
(2) The amount of the penalty under this section must not exceed the maximum | |
penalty given by subsection (3). | 40 |
(3) The maximum penalty is whichever is the greater of— | |
(a) £250,000; and | |
(b) 5 per cent. of the qualifying revenue for the licence holder’s last | |
complete accounting period falling within the period for which his | |
licence has been in force (‘the relevant period’). | 45 |
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(4) In relation to a person whose first complete accounting period falling within | |
the relevant period has not ended when the penalty is imposed, subsection (3) | |
is to be construed as referring to 5 per cent of the amount which OFCOM | |
estimate will be the qualifying revenue for that accounting period. | |
(5) Section 19(2) to (6) of the 1990 Act and Part 1 of Schedule 7 to that Act | 5 |
(calculation of qualifying revenue), with any necessary modifications, are to | |
apply for the purposes of subsection (3) as they apply for the purposes of Part | |
1 of that Act. | |
(6) OFCOM are not to serve a notice on a person under subsection (1) unless they | |
have given him a reasonable opportunity of making representations to them | 10 |
about the matters appearing to them to provide grounds for the service of the | |
notice. | |
(7) Where OFCOM— | |
(a) serve a notice on a BBC company under subsection (1), or | |
(b) receive representations from a BBC company by virtue of subsection | 15 |
(6), | |
they must send a copy of the notice or representations to the Secretary of State. | |
(8) An exercise by OFCOM of their powers under subsection (1) does not preclude | |
any exercise by them of their powers under section 231 in respect of the same | |
contravention. | 20 |
(9) The Secretary of State may by order substitute a different sum for the sum for | |
the time being specified in subsection (3)(a). | |
(10) No order is to be made containing provision authorised by subsection (9) | |
unless a draft of the order has been laid before Parliament and approved by a | |
resolution of each House. | 25 |
233 Revocation of television licensable content service licence | |
(1) OFCOM must serve a notice under subsection (2) on the holder of a licence to | |
provide a television licensable content service if they are satisfied— | |
(a) that the holder of the licence is in contravention of a condition of the | |
licence or is failing to comply with a direction given by them under or | 30 |
by virtue of any provision of this Part, Part 1 of the 1990 Act or Part 5 of | |
the 1996 Act; and | |
(b) that the contravention or failure, if not remedied, would justify the | |
revocation of the licence. | |
(2) A notice under this subsection must— | 35 |
(a) state that OFCOM are satisfied as mentioned in subsection (1); | |
(b) specify the respects in which, in their opinion, the licence holder is | |
contravening the condition or failing to comply with the direction; and | |
(c) state that OFCOM will revoke the licence unless the licence holder | |
takes, within such period as is specified in the notice, such steps to | 40 |
remedy the failure as are so specified. | |
(3) If, at the end of the period specified in a notice under subsection (2), OFCOM | |
are satisfied— | |
(a) that the person on whom the notice was served has failed to take the | |
steps specified in it, and | 45 |
(b) that it is necessary in the public interest to revoke his licence, | |
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