|
| |
| |
342 Action following review under s. 341 | |
(1) If, on a review under subsection (2) of section 341, it appears to OFCOM that | |
the relevant change of control is or would be prejudicial to one or more of the | |
matters mentioned in subsections (4) to (6) of that section, they shall vary the | |
licence in accordance with subsection (2). | 5 |
(2) The variation— | |
(a) must be made with a view to ensuring that the relevant change of | |
control is not prejudicial to any of the matters so mentioned; and | |
(b) must be a variation for the inclusion in the licence of such conditions | |
relating to any of those matters as they consider appropriate. | 10 |
(3) If it appears to OFCOM, having regard to the matters mentioned in subsection | |
(7) of section 341— | |
(a) that the proposed change of control would be prejudicial to the regional | |
character of the service or (as the case may be) of any parts of it, or | |
(b) that the actual change of control is so prejudicial, | 15 |
they may vary the licence so as to include in it such conditions relating to any | |
of those matters as they consider appropriate. | |
(4) Subject to subsection (5), any new or varied condition imposed under this | |
section in relation to any matter may be more onerous than the conditions | |
relating to that matter having effect before the relevant change of control. | 20 |
(5) A variation under this section must not provide for the inclusion of a new or | |
varied condition in a licence unless the new condition, or the condition as | |
varied, is one which (with any necessary modifications) would have been | |
satisfied by the licence holder throughout the twelve months immediately | |
before the relevant date. | 25 |
(6) In subsection (5) “the relevant date” is the date of the relevant change of control | |
or, if earlier, the date on which OFCOM exercise their powers under this | |
section. | |
(7) A variation of a licence under this section shall be effected by the service of a | |
notice of the variation on the licence holder. | 30 |
(8) OFCOM are not to serve a notice of a variation under this section unless they | |
have given the body on whom it is served a reasonable opportunity, after the | |
publication of the report of the review under section 341, of making | |
representations to them about the variation. | |
(9) Where, in a case of a proposed change of control, a notice varying a licence | 35 |
under this section is served before the change to which it relates takes place, the | |
variation is not to take effect until the change takes place. | |
(10) A condition included in a licence by a variation under this section may be | |
further varied by OFCOM either— | |
(a) with the consent of the licence holder; or | 40 |
(b) in any other case, after complying with the requirements of section | |
3(4)(b) of the 1990 Act (variation after giving opportunity for | |
representations by the licence holder). | |
(11) Expressions used in this section and section 341 have the same meanings in this | |
section as in that. | 45 |
| |
| |
|
| |
| |
343 Changes of control of Channel 5 | |
(1) The regulatory regime for Channel 5 includes, in every case where it is | |
provided by a body corporate— | |
(a) a condition requiring the licence holder to give OFCOM advance | |
notification of any proposals known to the body that may give rise to a | 5 |
relevant change of control; and | |
(b) a condition requiring the licence holder to provide OFCOM, in such | |
manner and at such times as they may reasonably require, with such | |
information as they consider necessary for the purposes of exercising | |
their functions under this section and section 344. | 10 |
(2) OFCOM must carry out a review where— | |
(a) they receive notification, in accordance with a condition of the licence | |
to provide Channel 5, of proposals that may give rise to a relevant | |
change of control; or | |
(b) a relevant change of control takes place (whether or not that change has | 15 |
been previously notified to OFCOM). | |
(3) The review shall be a review of the effects or likely effects, in relation to the | |
matters mentioned in subsections (4) and (5), of— | |
(a) the change to which the proposals may give rise; or | |
(b) the change that has taken place. | 20 |
(4) The matters mentioned in this subsection are— | |
(a) the extent to which time available for broadcasting programmes | |
included in Channel 5 is allocated to programmes of each of the | |
following descriptions— | |
(i) original productions; | 25 |
(ii) news programmes; and | |
(iii) current affairs programmes; | |
(b) the extent to which programmes of each of those descriptions that are | |
included in that Channel are broadcast at peak viewing times. | |
(5) The matters mentioned in this subsection are— | 30 |
(a) the extent to which programmes made in the United Kingdom that are | |
included in the service are programmes made outside the M25 area; | |
(b) the range of programmes made in the United Kingdom outside that | |
area that are included in Channel 5; | |
(c) the extent to which the expenditure of the provider of Channel 5 on | 35 |
programmes made in the United Kingdom is referable to programme | |
production at different production centres outside the M25 area; | |
(d) the range of different such production centres to which that | |
expenditure is referable. | |
(6) Where OFCOM carry out a review under subsection (2), they must publish a | 40 |
report of that review— | |
(a) setting out their conclusions; and | |
(b) specifying any steps which they propose to take under section 344. | |
(7) In this section— | |
“expenditure”, in relation to a programme, means— | 45 |
(a) expenditure which constitutes an investment in or is otherwise | |
attributable to the making of the programme; or | |
| |
| |
|
| |
| |
(b) expenditure on the commissioning or other acquisition of the | |
programme or on the acquisition of a right to include it in a | |
service or to have it broadcast; | |
“original production” has the same meaning as in section 271; | |
“peak viewing time”— | 5 |
(a) in relation to original productions, means a time determined by | |
OFCOM for the purposes of section 271 to be a peak viewing | |
time for Channel 5; and | |
(b) in relation to news programmes or current affairs programmes, | |
means a time so determined for the purposes of section 272; | 10 |
“relevant change of control” means a change in the persons having control | |
over— | |
(a) a body holding a licence to provide Channel 5; or | |
(b) any body which— | |
(i) is connected with a body holding such a licence; and | 15 |
(ii) appears to OFCOM to be involved, to any extent, in the | |
provision of programmes for inclusion in that channel, or | |
to be likely to be so involved. | |
(8) Expressions used in this section and in Part 1 of Schedule 2 to the 1990 Act | |
(restrictions on licence holders) have the same meanings in this section as in | 20 |
that Part. | |
344 Action following review under s. 343 | |
(1) If, on a review under subsection (2) of section 343, it appears to OFCOM that | |
the relevant change of control is or would be prejudicial to one or more of the | |
matters mentioned in subsections (4) and (5) of that section, they shall vary the | 25 |
licence in accordance with subsection (2). | |
(2) The variation— | |
(a) must be made with a view to ensuring that the relevant change of | |
control is not prejudicial to any of the matters so mentioned; and | |
(b) must be a variation for the inclusion in the licence of such conditions | 30 |
relating to any of those matters as they consider appropriate. | |
(3) Subject to subsection (4), any new or varied condition imposed under this | |
section in relation to any matter may be more onerous than the conditions | |
relating to that matter having effect before the relevant change of control. | |
(4) A variation under this section must not provide for the inclusion of a new or | 35 |
varied condition in a licence unless the new condition, or the condition as | |
varied, is one which (with any necessary modifications) would have been | |
satisfied by the licence holder throughout the twelve months immediately | |
before the relevant date. | |
(5) In subsection (4) “the relevant date” is the date of the relevant change of control | 40 |
or, if earlier, the date on which OFCOM exercise their powers under this | |
section. | |
(6) A variation of a licence under this section shall be effected by the service of a | |
notice of the variation on the licence holder. | |
(7) OFCOM are not to serve a notice of a variation under this section unless they | 45 |
have given the body on whom it is served a reasonable opportunity, after the | |
| |
| |
|
| |
| |
(7) publication of the report of the review under section 343, of making | |
representations to them about the variation. | |
(8) Where, in a case of a proposed change of control, a notice varying a licence | |
under this section is served before the change to which it relates takes place, the | |
variation is not to take effect until the change takes place. | 5 |
(9) A condition included in a licence by a variation under this section may be | |
further varied by OFCOM either— | |
(a) with the consent of the licence holder; or | |
(b) in any other case, after complying with the requirements of section | |
3(4)(b) of the 1990 Act (variation after giving opportunity for | 10 |
representations by the licence holder). | |
(10) Expressions used in this section and section 343 have the same meanings in this | |
section as in that. | |
345 Variation of local licence following change of control | |
(1) The regulatory regime for every local sound broadcasting service provided by | 15 |
a body corporate includes— | |
(a) a condition requiring the licence holder to give OFCOM advance | |
notification of any proposals known to it that may give rise to a relevant | |
change of control; and | |
(b) a condition requiring the licence holder to provide OFCOM, in such | 20 |
manner and at such times as they may reasonably require, with such | |
information as they consider necessary for the purposes of exercising | |
their functions under this section and section 346. | |
(2) OFCOM must carry out a review where— | |
(a) they receive notification, in accordance with a condition of a local | 25 |
sound broadcasting licence, of proposals that may give rise to a | |
relevant change of control; or | |
(b) a relevant change of control takes place (whether or not that change has | |
been previously notified to OFCOM). | |
(3) The review shall be a review of the effects or likely effects, in relation to the | 30 |
matters mentioned in subsection (4), of— | |
(a) the change to which the proposals may give rise; or | |
(b) the change that has taken place. | |
(4) Those matters are— | |
(a) the quality and range of programmes included in the service; | 35 |
(b) the character of the service; | |
(c) the extent to which OFCOM’s duty under section 304 is performed in | |
relation to the service. | |
(5) Where OFCOM carry out a review under subsection (2), they must publish a | |
report of that review— | 40 |
(a) setting out their conclusions; and | |
(b) specifying any steps which they propose to take under section 346. | |
(6) In this section “relevant change of control” means a change in the persons | |
having control over— | |
| |
| |
|
| |
| |
(a) a body holding the licence to provide a local sound broadcasting | |
service; or | |
(b) any body which— | |
(i) is connected with a body holding such a licence; and | |
(ii) appears to OFCOM to be involved, to any extent, in the | 5 |
provision of programmes for inclusion in the service provided | |
under that licence, or to be likely to be so involved. | |
(7) Expressions used in this section and in Schedule 2 to the 1990 Act (restrictions | |
on licence holders) have the same meanings in this section as in that Schedule. | |
346 Action following review under s. 345 | 10 |
(1) If, on a review under section 345, it appears to OFCOM that the relevant change | |
of control is or would be prejudicial to one or more of the matters mentioned | |
in subsection (4) of that section, they must vary the local licence in accordance | |
with subsection (2). | |
(2) The variation— | 15 |
(a) must be made with a view to ensuring that the relevant change of | |
control is not prejudicial to any of the matters so mentioned; and | |
(b) must be a variation for the inclusion in the licence of such conditions | |
relating to any of those matters as they consider appropriate. | |
(3) Subject to subsection (4), any new or varied condition imposed under this | 20 |
section in relation to any matter may be more onerous than the conditions | |
relating to that matter having effect before the relevant change of control. | |
(4) A variation under this section must not provide for the inclusion of any new or | |
varied condition in a licence unless the new condition, or the condition as | |
varied, is one which (with any necessary modifications) would have been | 25 |
satisfied by the licence holder throughout— | |
(a) the three months immediately before the relevant date; or | |
(b) such other three month period as has been notified under subsection | |
(5). | |
(5) If OFCOM consider that the performance of the licence holder during the three | 30 |
month period immediately preceding the relevant date is not typical of his | |
performance during the twelve months before the relevant date they— | |
(a) may determine that subsection (4) is to apply by reference to such other | |
three month period falling within those twelve months as they may | |
determine; and | 35 |
(b) must notify any determination under this subsection to the licence | |
holder. | |
(6) In subsection (4) “the relevant date” is the date of the relevant change of control | |
or, if earlier, the date on which OFCOM exercise their powers under this | |
section. | 40 |
(7) A variation of a licence under this section shall be effected by the service of a | |
notice of the variation on the licence holder. | |
(8) OFCOM are not to serve a notice of a variation under this section unless they | |
have given the body on whom it is served a reasonable opportunity, after the | |
publication of the report of the review under section 345, of making | 45 |
representations to them about the variation. | |
| |
| |
|
| |
| |
(9) Where, in a case of a proposed change of control, a notice varying a licence | |
under this section is served before the change to which it relates takes place, the | |
variation is not to take effect until that change takes place. | |
(10) A condition included in a licence by a variation under this section may be | |
further varied by OFCOM either— | 5 |
(a) with the consent of the licence holder; or | |
(b) in any other case, after complying with the requirements of section | |
86(5)(b) of the 1990 Act (variation after giving opportunity for | |
representations by the licence holder). | |
(11) Expressions used in this section and section 345 have the same meanings in this | 10 |
section as in that. | |
Meaning of control | |
347 Meaning of “control” | |
(1) In paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act (control where a | |
person will be able, without having at least a 50 per cent. interest in it, to have | 15 |
the affairs of a body conducted in accordance with his wishes)— | |
(a) for “will be able” there shall be substituted “would (if he chose to) be | |
able in most cases or in significant respects”; and | |
(b) for “the affairs” there shall be substituted “affairs”. | |
(2) After paragraph 1(3) of that Part of that Schedule there shall be inserted— | 20 |
“ (3ZA) A person is to be assumed, unless the contrary is shown, to have | |
control of a body corporate as mentioned in sub-paragraph (3)(b) if | |
he is a participant with a 20 per cent. interest in that body or is one | |
with more than a 20 per cent. interest in that body.” | |
(3) In paragraph 1(6) of that Part of that Schedule— | 25 |
(a) the words “more than”, wherever occurring shall be omitted; and | |
(b) after paragraph (b) there shall be inserted— | |
“and references to a participant with more than a 20 per cent. | |
interest in a body corporate shall be construed accordingly.” | |
(4) It shall be the duty of OFCOM to publish guidance setting out their intentions | 30 |
concerning the inclusion of particular matters in the matters that they will take | |
into account when determining whether a person has control of a body, within | |
the meaning of paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act. | |
(5) OFCOM may from time to time revise the guidance issued by them under this | |
section. | 35 |
(6) OFCOM must publish the guidance and, where they revise it, the revised | |
guidance in such manner as they consider appropriate for bringing it to the | |
attention of the persons who, in their opinion, are likely to be affected by it. | |
| |
| |
|
| |
| |
Chapter 6 | |
Other provisions about television and radio services | |
Annual report on television and radio | |
348 Annual factual and statistical report | |
(1) It shall be the duty of OFCOM— | 5 |
(a) as soon as practicable after the end of the period of twelve months | |
beginning with the commencement of this section, and | |
(b) as soon as practicable after the end of every subsequent period of | |
twelve months, | |
to satisfy for that period the review and reporting requirements of this section. | 10 |
(2) For any period those obligations are— | |
(a) to carry out a review of the provision of the television and radio | |
services available for reception by members of the public in the United | |
Kingdom during that period; and | |
(b) to prepare a factual and statistical report for that period on the | 15 |
provision of those services and on the state of the market in which they | |
are provided. | |
(3) In carrying out a review for any period under this section, OFCOM must | |
consider, in particular, each of the following— | |
(a) the extent to which programmes included during that period in | 20 |
television and radio services are representative of what OFCOM | |
consider to be the principal genres for such programmes; | |
(b) the extent to which codes made by OFCOM under this Part or Part 4 or | |
5 of the 1996 Act (listed events and fairness) have being complied with | |
during that period; | 25 |
(c) any trends appearing or operating during that period in the size and | |
behaviour of the audience for radio and television services; | |
(d) the financial condition during that period of the market in which those | |
services are provided and of the market in which programmes for such | |
services are produced; | 30 |
(e) what it is appropriate to achieve by conditions and duties under section | |
270 and paragraphs 1 and 7 of Schedule 12 and the effectiveness for that | |
purpose of the conditions and duties for the time being in force; | |
(f) whether it would be appropriate to recommend to the Secretary of State | |
that he exercises any of his powers under that section or those | 35 |
paragraphs; | |
(g) the extent to which work on independent productions (within the | |
meaning of that section and those paragraphs) that are produced in the | |
United Kingdom is done in a range of production centres outside the | |
M25 area; | 40 |
(h) any issues relating to intellectual property in programmes that have | |
arisen or been of significance during that period; | |
(i) developments in technology that have occurred or become important | |
during that period and are relevant to the provision, broadcasting or | |
distribution of television and radio programmes; | 45 |
(j) the availability during that period of persons with skills that are used | |
or likely to be useful in connection with the provision of television and | |
| |
| |
|
