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(b) 7 per cent. of the qualifying revenue for the last complete accounting | |
period of the licence holder falling within the licence period. | |
(5) A notice requiring a person to pay a penalty under this paragraph must | |
specify the period within which it is to be paid. | |
(6) A financial penalty that must be paid by virtue of this paragraph by a body | 5 |
of any description shall also be recoverable— | |
(a) as a debt due to OFCOM from the person who controls the body; or | |
(b) if two or more persons control it, as a debt due jointly and severally | |
from them all. | |
(7) Sub-paragraph (6) is in addition to the provision for the recovery of penalties | 10 |
contained in section 390, but the amount recovered in respect of any one | |
penalty must not exceed the full amount of that penalty. | |
(8) References in this paragraph to a person controlling a body are references to | |
his controlling it within the meaning of Schedule 2 to the 1990 Act. | |
Power to modify penalties in paragraph 12 | 15 |
13 (1) The Secretary of State may by order substitute a different sum for the sum | |
for the time being specified in a paragraph 12(3)(a) or (4)(a). | |
(2) No order is to be made containing provision authorised by this paragraph | |
unless a draft of the order has been laid before Parliament and approved by | |
a resolution of each House. | 20 |
Part 3 | |
Interpretation of Schedule | |
14 In this Schedule “licence period”, in relation to a licence, means the period | |
for which the licence is in force. | |
15 (1) For the purposes of this Schedule the qualifying revenue for an accounting | 25 |
period of the holder of a licence to provide the public teletext service consists | |
of the aggregate of all the following amounts— | |
(a) the amounts received or to be received by a person mentioned in sub- | |
paragraph (2) in consideration of the inclusion in the licensed service | |
in that period of advertisements or other items; and | 30 |
(b) the amounts received or to be received by such a person in respect of | |
the provision of the service from— | |
(i) a person authorised by the licence holder to provide the | |
whole or a part of the licensed service; or | |
(ii) a person who is a connected person in relation to a person so | 35 |
authorised. | |
(2) Those persons are— | |
(a) the licence holder; or | |
(b) a person who is a connected person in relation to the licence holder | |
without being a person authorised by the licence holder to provide | 40 |
the whole or a part of the licensed service. | |
(3) Part 1 of Schedule 7 to the 1990 Act applies for determining qualifying | |
revenue for the purposes of this Schedule as it applies for the purposes of | |
Part 1 of that Act. | |
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(4) Where, in the case of the licence to provide the public teletext service— | |
(a) the first complete accounting period of the licence holder to fall | |
within the licence period does not begin at the same time as the | |
licence period, or | |
(b) the last complete accounting period of his to fall within the licence | 5 |
period does not end at the same time as the licence period, | |
references in this Schedule to an accounting period of the licence holder | |
include references to such part of the accounting period preceding the first | |
complete accounting period, or (as the case may be) following the last | |
complete accounting period, as falls within the licence period. | 10 |
(5) In this paragraph “connected person” has the same meaning as in Schedule | |
2 to the 1990 Act. | |
Schedule 11 | |
Sections 283 and 286 | |
Approval, imposition and modification of networking arrangements | |
Application of Schedule | 15 |
1 (1) This Schedule applies where OFCOM’s approval of networking | |
arrangements entered into by the holders of regional Channel 3 licences is | |
required— | |
(a) for the purposes of conditions included in regional Channel 3 | |
licences in accordance with section 283; or | 20 |
(b) in order for networking arrangements made by OFCOM to cease to | |
have effect in accordance with section 284. | |
(2) This Schedule also has effect as respects— | |
(a) the imposition by OFCOM under section 284 of networking | |
arrangements; | 25 |
(b) the modification of such arrangements following a review under | |
section 285; and | |
(c) the making of proposals for modifications of networking | |
arrangements following such a review. | |
Approval required for modifications | 30 |
2 (1) Where networking arrangements are approved by OFCOM for purposes | |
mentioned in paragraph 1(1), those arrangements are not to be modified | |
unless OFCOM have approved the modifications in accordance with this | |
Schedule. | |
(2) This paragraph does not apply to modifications proposed by OFCOM under | 35 |
section 285. | |
Procedure for giving approval | |
3 (1) This paragraph applies where arrangements or modifications are submitted | |
to OFCOM for their approval. | |
(2) OFCOM must publish a description of the arrangements or modifications | 40 |
that have been submitted. | |
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(3) The publication must be in such manner as OFCOM consider appropriate | |
for bringing the matters published to the attention of the persons who, in | |
OFCOM’s opinion, are likely to be affected by the arrangements or | |
modifications. | |
(4) After allowing a reasonable time after the publication for the making of | 5 |
representations, OFCOM must consider the arrangements or modifications | |
and decide whether or not to approve them. | |
Decision of OFCOM whether or not to approve arrangements or modifications | |
4 (1) The decision made by OFCOM under paragraph 3(4) has to be one of the | |
following— | 10 |
(a) a decision to approve the arrangements or modifications | |
unconditionally; | |
(b) a decision to give a conditional approval to the arrangements or | |
modifications; | |
(c) a decision to refuse approval. | 15 |
(2) A conditional approval is one that has effect only if effect is given, in relation | |
to the proposed arrangements or modifications, to changes proposed by | |
OFCOM. | |
(3) Before deciding to give a conditional approval, OFCOM must consult every | |
holder of a regional Channel 3 licence about the changes they are proposing. | 20 |
(4) When OFCOM have made their decision, they must prepare a report setting | |
out— | |
(a) their decision; and | |
(b) their reasons for that decision. | |
(5) OFCOM must publish the report and send a copy of it to— | 25 |
(a) the Office of Fair Trading; and | |
(b) every person to whom the relevant arrangements will apply, or do | |
apply. | |
(6) The relevant arrangements are— | |
(a) the arrangements for which approval has been sought; or | 30 |
(b) the arrangements which are the subject of the modifications for | |
which approval has been sought. | |
Notification of decisions on imposition of arrangements | |
5 (1) Where OFCOM impose arrangements they must prepare and publish a | |
report setting out details of the imposed arrangements. | 35 |
(2) Where OFCOM carry out a review under section 285, they must prepare and | |
publish a report setting out— | |
(a) their conclusions on the review; | |
(b) their reasons for those conclusions; and | |
(c) the modifications (if any) that they are proposing, or intend to make, | 40 |
following the review. | |
(3) OFCOM must send a copy of a report prepared under this paragraph to— | |
(a) the Office of Fair Trading; and | |
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(b) every person to whom the relevant arrangements will apply or do | |
apply. | |
(4) The relevant arrangements are— | |
(a) the arrangements which are imposed; or | |
(b) the arrangements which are the subject of the modifications | 5 |
proposed by OFCOM or to be made by them. | |
Competition tests applying to OFCOM’s decisions | |
6 (1) OFCOM must not— | |
(a) approve arrangements or modifications, | |
(b) impose arrangements or modify imposed arrangements, or | 10 |
(c) propose modifications following a review under section 285, | |
unless they are satisfied that the arrangements, or the arrangements as | |
proposed to be modified, satisfy the first or second competition test. | |
(2) Before making a decision about whether a competition test is satisfied | |
OFCOM must consult the Office of Fair Trading. | 15 |
(3) Arrangements satisfy the first competition test if they do not have as their | |
object or effect the prevention, restriction or distortion of competition within | |
the United Kingdom. | |
(4) Arrangements satisfy the second competition test if— | |
(a) they do have such an object or effect; but | 20 |
(b) they would satisfy the criteria set out in section 9 of the Competition | |
Act 1998 (c. 41) (agreements contributing to improving the | |
production or distribution of goods or to promoting technical or | |
economic progress). | |
(5) For the purposes of the second competition test, arrangements imposed by | 25 |
OFCOM and modifications of such arrangements are to be treated as if they | |
were given effect to by an agreement between undertakings. | |
(6) In determining whether arrangements or modified arrangements would | |
satisfy either of the competition tests, OFCOM must act with a view to | |
securing that there is no inconsistency between | 30 |
(a) the principles they apply and the decision they reach; and | |
(b) any principles or decisions referred to in sub-paragraph (7). | |
(7) Those principles and decisions are— | |
(a) the principles laid down by the Treaty establishing the European | |
Community and the European Court, and any decisions of that | 35 |
Court, that are relevant to the construction of Article 81 of that | |
Treaty; and | |
(b) any decisions under Part 1 of the Competition Act 1998, and any | |
decisions of a court in the United Kingdom, that are relevant to the | |
construction of a provision of that Act that is equivalent to the | 40 |
provisions of this Schedule imposing the competition tests. | |
(8) In the case of a conditional approval, the requirements of this paragraph | |
have to be satisfied in relation to the arrangements or modified | |
arrangements as they will be after giving effect to the changes proposed by | |
OFCOM. | 45 |
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(9) In this paragraph, the “European Court” includes a court attached to the | |
European Court. | |
Other matters to be taken into account | |
7 (1) OFCOM must not— | |
(a) approve arrangements or modifications, | 5 |
(b) impose arrangements or modify imposed arrangements, or | |
(c) propose modifications following a review under section 285, | |
unless they consider that the arrangements, or the arrangements as | |
proposed to be modified, are satisfactory. | |
(2) OFCOM’s consideration under sub-paragraph (1) must include | 10 |
consideration of the following two factors. | |
(3) The first factor is whether the arrangements, or the arrangements as | |
proposed to be modified, represent a satisfactory means of achieving the | |
purpose set out in section 282(4)(c). | |
(4) The second factor is the likely effect of the arrangements, or the | 15 |
arrangements as modified, on the ability of the persons who will be or are | |
the holders of regional Channel 3 licences, or of any of them, to maintain the | |
quality and range of— | |
(a) regional programmes included in regional Channel 3 services; and | |
(b) the other programmes included in such services which contribute to | 20 |
the regional character of the services. | |
(5) In this paragraph “regional programme”, in relation to a regional Channel 3 | |
service, means a programme (including a news programme) which is of | |
particular interest— | |
(a) to persons living within the area for which the service is provided; | 25 |
(b) to persons living within a part of that area; or | |
(c) to particular communities living within that area. | |
Duty to refuse approval in certain cases | |
8 (1) This paragraph applies to a decision by OFCOM— | |
(a) to approve arrangements or modifications; | 30 |
(b) to impose arrangements or to modify imposed arrangements; or | |
(c) to propose modifications following a review under section 285. | |
(2) OFCOM must not make that decision if it appears to them that the | |
arrangements, or the arrangements as proposed to be modified, would be | |
likely to be prejudicial to the ability of holders of regional Channel 3 licences, | 35 |
or of any of them, to comply with— | |
(a) their public service remits; | |
(b) conditions imposed on them under section 278; | |
(c) conditions imposed on them under section 279; or | |
(d) conditions imposed on them under section 342. | 40 |
Appeals against decisions relating to competition test | |
9 (1) A person holding a regional Channel 3 licence may appeal to the Tribunal | |
against the following decisions by OFCOM— | |
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(a) a decision on how to dispose of an application for the approval of | |
arrangements or modifications; | |
(b) a decision to impose arrangements or to modify imposed | |
arrangements; or | |
(c) a decision to propose modifications following a review under section | 5 |
285. | |
(2) An appeal can be made only by sending the Tribunal a notice of appeal | |
within the period specified, in relation to the decision appealed against, in | |
Tribunal rules. | |
(3) The notice of appeal must set out the grounds of appeal. | 10 |
(4) The only grounds on which an appeal may be brought are— | |
(a) that OFCOM has wrongly decided that a competition test is or is not | |
satisfied in relation to arrangements or modifications submitted to | |
them for approval; | |
(b) that a competition test is not satisfied in the case of arrangements | 15 |
proposed by OFCOM; | |
(c) that provisions contained in arrangements proposed by OFCOM for | |
satisfying a competition test are not required for that purpose; | |
(d) that the requirement to satisfy a competition test should be | |
discharged in a different manner from that in which it would be | 20 |
satisfied in accordance with arrangements proposed by OFCOM. | |
(5) In sub-paragraph (4) “arrangements proposed by OFCOM” means— | |
(a) arrangements or modified arrangements as they will have effect after | |
giving effect to changes proposed by OFCOM in giving a conditional | |
approval; | 25 |
(b) arrangements imposed by them; | |
(c) imposed arrangements as modified by them; | |
(d) arrangements as modified by proposals made by OFCOM following | |
a review under section 285. | |
(6) The holder of a regional Channel 3 licence is not required by the conditions | 30 |
of his licence to take steps for giving effect to a decision of OFCOM at any | |
time when an appeal under this Schedule against that decision is pending. | |
Decisions on an appeal | |
10 (1) Appeals to the Tribunal under paragraph 9 are to be disposed of in | |
accordance with this paragraph. | 35 |
(2) The Tribunal shall decide the appeal on the merits and by reference to the | |
grounds of appeal set out in the notice of appeal. | |
(3) The Tribunal shall decide what (if any) is the appropriate decision for | |
OFCOM to have made in relation to the matters to which those grounds | |
relate. | 40 |
(4) The Tribunal shall then either— | |
(a) confirm OFCOM’s decision; or | |
(b) remit the matter to OFCOM with such directions (if any) as the | |
Tribunal considers appropriate for giving effect to its decision. | |
(5) The Tribunal must not direct OFCOM to take any action which they would | 45 |
not otherwise have had power to take in relation to the matter under appeal. | |
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(6) It shall be the duty of OFCOM to comply with every direction given to them | |
under sub-paragraph (4). | |
(7) In its application to a decision of the Tribunal under this section, paragraph | |
1(2)(b) of Schedule 4 to the Enterprise Act 2002 (c. 40) (exclusion of | |
commercial information from documents recording Tribunal decisions) is to | 5 |
have effect as if for the reference to the undertaking to which commercial | |
information relates there were substituted a reference to the person to whom | |
such information relates. | |
Appeals against decisions of the Tribunal | |
11 (1) A decision of the Tribunal on an appeal under paragraph 9 may itself be | 10 |
appealed. | |
(2) An appeal under this section— | |
(a) lies to the Court of Appeal or to the Court of Session; and | |
(b) must relate only to a point of law arising from the decision of the | |
Tribunal. | 15 |
(3) An appeal under this section may be brought by a party to the proceedings | |
before the Tribunal. | |
(4) An appeal under this section requires the permission of the Tribunal or of | |
the court to which it is to be made. | |
(5) In this section references to a decision of the Tribunal include references to a | 20 |
direction given by it under paragraph 10(4). | |
Information for OFCOM | |
12 (1) OFCOM may by notice require a person— | |
(a) to produce to them such documents specified or described in the | |
notice, or | 25 |
(b) to furnish them with such other information so specified or | |
described, | |
as they consider necessary in order to determine for the purposes of section | |
285 or this Schedule whether the competition tests are satisfied. | |
(2) A requirement imposed by a notice under this paragraph has to be complied | 30 |
with by producing the document, or by furnishing the required information, | |
at the time and place specified in the notice. | |
(3) If the requirement is one for the furnishing of information otherwise than by | |
the production of a document, the information must be furnished in the | |
manner specified in the notice. | 35 |
(4) The only documents that a person is required to produce by a notice under | |
this paragraph are those that are in his custody or under his control— | |
(a) at the time of the notice; or | |
(b) at a time between that time and the time when the notice must be | |
complied with. | 40 |
Enforcement of information provisions | |
13 (1) The court may, on an application by OFCOM, enquire into whether any | |
person (“the defaulter”) has refused or otherwise failed, without reasonable | |
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