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Communications Bill


Communications Bill
Part 5 — Competition in communications markets
Chapter 1 — Functions of OFCOM under competition legislation

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     (5)    In section 54 of the Competition Act 1998 (c. 41)—

           (a)           in subsection (1) (definition of “regulator” for the purposes of Part 1 of

that Act), for paragraph (a) there shall be substituted—

                        “(a)                           the Office of Communications;”

           (b)           in subsection (4) (power to make regulations about concurrent

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functions of the Office of Fair Trading and sectoral regulators), “or by

Chapter V of Part I of the Transport Act 2000” there shall be inserted “to

this Act, by Chapter 5 of Part 1 of the Transport Act 2000 or by section

361 of the Communications Act 2003”.

     (6)    In paragraph 5 of Schedule 2 to the Competition Act 1998 (publication of list of

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networking arrangements under the 1990 Act excluded from the Chapter 1

prohibition)—

           (a)           in sub-paragraph (2), for “The Independent Television Commission

(‘ITC’)” there shall be substituted “OFCOM”; and

           (b)           in sub-paragraph (3), for “The ITC” there shall be substituted

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“OFCOM”.

     (7)    In section 59(1) of the Competition Act 1998 (interpretation of Part 1), after the

definition of “Minister of the Crown” there shall be inserted—

                                  “‘OFCOM’ means the Office of Communications;”.

     (8)    OFCOM may carry out, in respect of activities connected with communications

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matters and concurrently with the Office of Fair Trading, the functions of the

Office of Fair Trading under any of paragraphs 3, 7, 19(3) and 36 to 39 of

Schedule 13 to the Competition Act 1998 (transitional provisions).

     (9)    If any question arises as to whether, by virtue of this section, any functions fall

to be, or are capable of being, carried out by OFCOM in relation to a particular

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case, that question shall be referred to and determined by the Secretary of State.

     (10)   No objection shall be taken to anything done under by or in relation to OFCOM

under the Competition Act 1998 on the ground that it should have been done

by or in relation to the Office of Fair Trading.

     (11)   Subject to subsection (12), section 3 does not apply in relation to anything done

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by OFCOM in the carrying out of their functions by virtue of this section.

     (12)   In the carrying out of any functions by virtue of this section OFCOM may

nevertheless have regard to any of the matters in respect of which a duty is

imposed by section 3(1) or (3) if it is a matter to which the Office of Fair Trading

is entitled to have regard in the carrying out of those functions.

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 362   Application of the Competition Act 1998 to news provision

     (1)    Section 194A of the 1990 Act (which modifies the Competition Act 1998 in

relation to agreements relating to Channel 3 news provision) shall be amended

as follows.

     (2)    In subsections (2), (6) and (7)(b)(i) (consultations with and notifications to the

40

Office of Fair Trading), after the words “the OFT”, in each place where they

occur, there shall be inserted “and OFCOM”.

     (3)    In subsection (3)(b)—

           (a)           for “section 31(2)” there shall be substituted “section 273 of the

Communications Act 2003”; and

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Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    319

 

           (b)           for “section 31(1) and (2)” there shall be substituted “that section of that

Act of 2003”.

     (4)    In subsection (5)(c) (declaration without notification), after “the OFT” there

shall be inserted “or OFCOM or both of them”.

     (5)    In subsection (7) (restriction on exercise by Office of Fair Trading of Chapter III

5

powers)—

           (a)           for “The OFT may not” there shall be substituted “Neither the OFT nor

OFCOM may”; and

           (b)           for paragraph (a) there shall be substituted—

                        “(a)                           the Secretary of State has been notified by the OFT or (as

10

the case may be) by OFCOM of its or their intention to

do so; and”.

     (6)    In subsection (8) (notice by Office of Fair Trading to the Secretary of State), for

the words from the beginning to “assist” in paragraph (a) there shall be

substituted—

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           “(8)              Where the OFT or OFCOM is or are proposing to exercise any Chapter

III powers in respect of a relevant agreement, it or they must give the

Secretary of State particulars of the agreement and such other

information—

                  (a)                 it considers or (as the case may be) they consider will assist”.

20

     (7)    In subsection (9), in the definition of “Chapter III powers”, for “given to the

OFT by” there shall be substituted “of the OFT and of OFCOM under”.

Chapter 2

Newspaper mergers

Introductory

25

 363   Repeal of existing newspaper merger regime

Sections 57 to 62 of the Fair Trading Act 1973 (c. 41) (newspaper merger

references) shall cease to have effect.

 364   Repeal of exclusion for newspaper mergers from general merger controls

Section 69 of the Enterprise Act 2002 (c. 40) (exclusion of newspaper mergers

30

from references under Part 3 of that Act) shall cease to have effect.

Adaptation for newspaper mergers of main merger regime

 365   Newspaper public interest considerations

After section 58(2) of the Enterprise Act 2002 (considerations specified as

public interest considerations for the purpose of the main merger regime) there

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shall be inserted—

           “(2A)              The need for—

                  (a)                 accurate presentation of news; and

 

 

Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

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                  (b)                 free expression of opinion;

                         in newspapers is specified in this section.

           (2B)              The need for, to the extent that it is reasonable and practicable, a

plurality of views in newspapers in each market for newspapers in the

United Kingdom or a part of the United Kingdom is specified in this

5

section.”

 366   Adaptation of role of OFT in initial investigations and reports

     (1)    In section 44(3)(b) of the Enterprise Act 2002 (c. 40) (initial report by OFT in

public interest cases must include summary of representations about public

interest considerations) after the word “concerned” there shall be inserted

10

“(other than a newspaper public interest consideration)”.

     (2)    After section 44(5) of that Act there shall be inserted—

           “(5A)              The report may, in particular, contain a summary of any

representations about the case which have been received by the OFT

and which relate to any newspaper public interest consideration

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mentioned in the intervention notice concerned and which is or may be

relevant to the Secretary of State’s decision as to whether to make a

reference under section 45.”

     (3)    After section 44(7) of that Act there shall be inserted—

           “(8)              In this Part “newspaper public interest consideration” means any

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consideration which, at the time of the giving of the intervention notice

concerned—

                  (a)                 is specified in section 58(2A) or (2B); or

                  (b)                 in the opinion of the Secretary of State, is concerned with

newspapers and ought to be specified in section 58.

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           (9)              In this Part “newspaper” means a daily, Sunday or local (other than

daily or Sunday) newspaper circulating wholly or mainly in the United

Kingdom or in a part of the United Kingdom.

           (10)              The Secretary of State may by order amend subsection (9).”

 367   Additional investigation and report by OFCOM

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After section 44 of the Enterprise Act 2002 (investigation and report by OFT in

public interest cases) there shall be inserted—

       “44A Additional investigation and report by OFCOM: newspaper mergers

           (1)           Subsection (2) applies where—

                  (a)                 the Secretary of State has given an intervention notice in relation

35

to a relevant merger situation; and

                  (b)                 the intervention notice mentions any newspaper public interest

consideration.

           (2)           OFCOM shall, within such period as the Secretary of State may require,

give a report to the Secretary of State on the effect of the consideration

40

or considerations concerned on the case.

           (3)           The report shall contain—

 

 

Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

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                  (a)                 advice and recommendations on any newspaper public interest

consideration mentioned in the intervention notice concerned

and which is or may be relevant to the Secretary of State’s

decision as to whether to make a reference under section 45; and

                  (b)                 a summary of any representations about the case which have

5

been received by OFCOM and which relate to any such

consideration.

           (4)           OFCOM shall carry out such investigations as they consider

appropriate for the purposes of producing a report under this section.”

Extension of special public interest regime

10

 368   Extension of special public interest regime for certain newspaper mergers

     (1)    Section 59 of the Enterprise Act 2002 (c. 40) (intervention by Secretary of State

in special public interest cases) shall be amended as follows.

     (2)    For subsections (3) and (4) (definition of “special merger situation”) there shall

be substituted—

15

           “(3)              For the purposes of this Part a special merger situation has been created

if—

                  (a)                 the condition mentioned in subsection (3A) is satisfied; and

                  (b)                 immediately before the enterprises concerned ceased to be

distinct, either—

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                        (i)                        the conditions mentioned in subsection (3B) were

satisfied; or

                        (ii)                       the condition mentioned in subsection (3C) or (3D) was

satisfied.

           (3A)              The condition mentioned in this subsection is that—

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                  (a)                 no relevant merger situation has been created because of section

23(1)(b) and (2)(b); but

                  (b)                 a relevant merger situation would have been created if those

enactments were disregarded.

           (3B)              The conditions mentioned in this subsection are that—

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                  (a)                 at least one of the enterprises concerned was carried on in the

United Kingdom or by or under the control of a body corporate

incorporated in the United Kingdom; and

                  (b)                 a person carrying on one or more of the enterprises concerned

was a relevant government contractor.

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           (3C)              The condition mentioned in this subsection is that, in relation to the

supply of newspapers of any description, at least one-quarter of all the

newspapers of that description which were supplied in the United

Kingdom, or in a substantial part of the United Kingdom, were

supplied by the person or persons by whom one of the enterprises

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concerned was carried on.

           (3D)              The condition mentioned in this subsection is that, in relation to the

supply of newspaper advertising of any description, at least one-

quarter of all the advertising of that description which was supplied in

the United Kingdom, or in a substantial part of the United Kingdom,

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Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    322

 

           was supplied by the person or persons by whom one of the enterprises

concerned was carried on.”

     (3)    After subsection (6) there shall be inserted—

           “(6A)              For the purpose of deciding whether the proportion of one-quarter

mentioned in subsection (3C) or (3D) is fulfilled with respect to

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newspapers or newspaper advertising of any description, the decision-

making authority shall apply such criterion (whether value, cost, price,

quantity, capacity, number of workers employed or some other

criterion, of whatever nature), or such combination of criteria, as the

decision-making authority considers appropriate.

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           (6B)                            References in subsections (3C) and (3D) to the supply of newspapers or

(as the case may be) newspaper advertising shall, in relation to

newspapers or newspaper advertising of any description which are the

subject of different forms of supply, be construed in whichever of the

following ways the decision-making authority considers appropriate—

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                  (a)                 as references to any of those forms of supply taken separately;

                  (b)                 as references to all those forms of supply taken together; or

                  (c)                 as references to any of those forms of supply taken in groups.

           (6C)              For the purposes of subsection (6B) the decision-making authority may

treat newspapers or newspaper advertising as being the subject of

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different forms of supply whenever—

                  (a)                 the transactions concerned differ as to their nature, their parties,

their terms or their surrounding circumstances; and

                  (b)                 the difference is one which, in the opinion of the decision-

making authority, ought for the purposes of that subsection to

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be treated as a material difference.

           (6D)              The criteria for deciding when newspapers or newspaper advertising

can be treated, for the purposes of this section, as newspapers or

newspaper advertising of a separate description shall be such as in any

particular case the decision-making authority considers appropriate in

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the circumstances of that case.

           (6E)              The Secretary of State may by order amend the condition mentioned in

subsection (3)(b)(ii).”

     (4)    In subsection (9) (definitions)—

           (a)           the word “and” at the end of the definition of “defence” shall cease to

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have effect; and

           (b)           after the definition of “government contractor” there shall be inserted

“and

                                  “newspaper advertising” means advertising in newspapers.”

 369   Adaptation of role of OFT in special public interest regime

40

     (1)    Section 61 of the Enterprise Act 2002 (c. 40) (initial investigation and report by

OFT in special public interest cases) shall be amended as follows.

     (2)    In subsection (3)(b) (report must include summary of representations about

considerations specified in section 58) after the word “concerned” there shall

be inserted “(other than a consideration which, at the time of the giving of the

45

notice, was specified in section 58(2A) or (2B))”.

 

 

Communications Bill
Part 5 — Competition in communications markets
Chapter 2 — Newspaper mergers

    323

 

     (3)    In subsection (4) for the words “59(4)(b)” there shall be substituted “59(3B)(b)”.

     (4)    After subsection (4) there shall be inserted—

           “(4A)              The report may, in particular, contain a summary of any

representations about the case which have been received by the OFT

and which relate to any consideration which—

5

                  (a)                 is mentioned in the special intervention notice concerned and,

at the time of the giving of that notice, was specified in section

58(2A) or (2B); and

                  (b)                 is or may be relevant to the Secretary of State’s decision as to

whether to make a reference under section 62.”

10

 370   Additional investigation and report by OFCOM: special public interest cases

After section 61 of the Enterprise Act 2002 (c. 40) (initial investigation and

report by OFT in special public interest cases) there shall be inserted—

       “61A Additional investigation and report by OFCOM: certain newspaper

mergers

15

           (1)           Subsection (2) applies where—

                  (a)                 the Secretary of State has given a special intervention notice in

relation to a special merger situation; and

                  (b)                 the special intervention notice mentions any consideration

which, at the time of the giving of the notice, was specified in

20

section 58(2A) or (2B).

           (2)           OFCOM shall, within such period as the Secretary of State may require,

give a report to the Secretary of State on the effect of the consideration

or considerations concerned on the case.

           (3)           The report shall contain—

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                  (a)                 advice and recommendations on any consideration which—

                        (i)                        is mentioned in the special intervention notice

concerned and, at the time of the giving of that notice,

was specified in section 58(2A) or (2B); and

                        (ii)                       is or may be relevant to the Secretary of State’s decision

30

as to whether to make a reference under section 62; and

                  (b)                 a summary of any representations about the case which have

been received by OFCOM and which relate to any such

consideration.

           (4)           OFCOM shall carry out such investigations as they consider

35

appropriate for the purposes of producing a report under this section.”

New general functions in relation to newspaper mergers

 371   Public consultation in relation to newspaper mergers

After section 104 of the Enterprise Act 2002 there shall be inserted—

 

 

 
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