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Communications Bill


Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    199

 

     (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

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            “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

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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.

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     (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;

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           (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.

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     (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

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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.

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     (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

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           (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.

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Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    200

 

     (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

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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

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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;

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           (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

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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

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 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—

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           (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.

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     (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

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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

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Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    201

 

                  (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

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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—

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                      (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

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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

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           (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

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           (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

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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—

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           (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.

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     (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

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those premises.

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    202

 

     (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

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           (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—

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           (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;

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                    “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

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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.

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 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

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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

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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

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modification of the provisions of that section; and

           (e)           technological developments that have occurred or are likely to occur.

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    203

 

     (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

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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

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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

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           (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—

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           (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

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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

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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

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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

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     (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

 

 

Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    204

 

           (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.

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     (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

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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.

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     (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—

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           (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.

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     (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

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     (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

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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).

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     (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’).

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Communications Bill
Part 3 — Television and Radio Services
Chapter 2 — Regulatory Structure for Independent Television Services

    205

 

     (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

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(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

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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

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(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.

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     (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.

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 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

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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—

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           (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

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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

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           (b)           that it is necessary in the public interest to revoke his licence,

 

 

 
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