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13 (1) excuse, to comply with a requirement contained in a notice under paragraph | |
12. | |
(2) An application under sub-paragraph (1) shall include details of the possible | |
failure which OFCOM consider has occurred. | |
(3) In enquiring into a case under sub-paragraph (1), the court shall hear— | 5 |
(a) any witness who may be produced against or on behalf of the | |
defaulter; and | |
(b) any statement which may be offered in defence. | |
(4) Sub-paragraphs (5) and (6) apply where the court is satisfied, after hearing | |
any witnesses and statements as mentioned in sub-paragraph (3), that the | 10 |
defaulter has refused or failed, without reasonable excuse, to comply with | |
the requirement contained in the notice under paragraph 12. | |
(5) The court may punish the defaulter as it would have been able to punish him | |
had he been guilty of contempt of court. | |
(6) Where the defaulter is a body corporate, the power of the court to punish the | 15 |
defaulter includes power to punish a director or officer of the body | |
corporate. | |
(7) A person is guilty of an offence if he intentionally alters, suppresses or | |
destroys a document which he has been required to produce by a notice | |
under paragraph 12. | 20 |
(8) A person is guilty of an offence if— | |
(a) he supplies information to OFCOM in purported compliance with a | |
notice given to him under paragraph 12; | |
(b) the information is false or misleading in a material respect; and | |
(c) he knows that it is false or misleading in a material respect or is | 25 |
reckless as to whether it is false or misleading in a material respect. | |
(9) A person is guilty of an offence if— | |
(a) he supplies information to another person knowing that the | |
information is to be used for complying with a notice under | |
paragraph 12; | 30 |
(b) the information is false or misleading in a material respect; and | |
(c) he knows that it is false or misleading in a material respect or is | |
reckless as to whether it is false or misleading in a material respect. | |
(10) A person guilty of an offence under this paragraph shall be liable— | |
(a) on summary conviction, to a fine not exceeding the statutory | 35 |
maximum; | |
(b) on conviction on indictment, to imprisonment for a term not | |
exceeding two years or to a fine, or to both. | |
(11) In this paragraph “the court” means— | |
(a) in relation to England and Wales, the High Court; | 40 |
(b) in relation to Scotland, the Court of Session; and | |
(c) in relation to Northern Ireland, the High Court or a judge of the High | |
Court. | |
Confidentiality and defamation | |
14 (1) When publishing a report prepared under paragraph 4 or 5, OFCOM must | 45 |
have regard to the need to exclude from the publication, so far as practicable, | |
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14 (1) the matters which are confidential in accordance with sub-paragraphs (2) | |
and (3). | |
(2) A matter is confidential under this sub-paragraph if— | |
(a) it relates specifically to the affairs of a particular body; and | |
(b) publication of that matter would or might, in OFCOM’s opinion, | 5 |
seriously and prejudicially affect the interests of that body. | |
(3) A matter is confidential under this sub-paragraph if— | |
(a) it relates to the private affairs of an individual; and | |
(b) publication of that matter would or might, in OFCOM’s opinion, | |
seriously and prejudicially affect the interests of that individual. | 10 |
(4) For the purposes of the law of defamation absolute privilege attaches to | |
every report prepared under paragraph 4 or 5. | |
Interpretation of Schedule | |
15 In this Schedule— | |
“competition test” is to be construed in accordance with paragraph 6; | 15 |
“the Tribunal” means the Competition Appeal Tribunal; and | |
“Tribunal rules” means rules made under section 15 of the Enterprise | |
Act 2002 (c. 40). | |
Schedule 12 | |
Section 328 | |
Corresponding obligations of the BBC and Welsh Authority | 20 |
Part 1 | |
The BBC | |
Quotas for independent productions | |
1 (1) It shall be the duty of the BBC to secure that, in each year, not less than 25 | |
per cent. of the total amount of time allocated to the broadcasting of | 25 |
qualifying programmes included in the television broadcasting services | |
provided by the BBC is allocated to the broadcasting of a range and diversity | |
of independent productions. | |
(2) In this paragraph— | |
(a) a reference to qualifying programmes is a reference to programmes | 30 |
of such description as the Secretary of State may by order specify as | |
describing the programmes that are to be qualifying programmes for | |
the purposes of this paragraph; | |
(b) a reference to independent productions is a reference to programmes | |
of such description as the Secretary of State may by order specify as | 35 |
describing the programmes that are to be independent productions | |
for the purposes of this paragraph; and | |
(c) a reference to a range of independent productions is a reference to a | |
range of such productions in terms of cost of acquisition as well as in | |
terms of the types of programme involved. | 40 |
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(3) The Secretary of State may by order amend sub-paragraph (1) by | |
substituting a different percentage for the percentage for the time being | |
specified in that sub-paragraph. | |
(4) The Secretary of State may also by order provide for the BBC to have the | |
duty set out in sub-paragraph (5), either instead of or as well as the one set | 5 |
out in sub-paragraph (1). | |
(5) That duty is a duty to secure that, in each year, not less than the percentage | |
specified in the order of the programming budget for that year for the | |
television broadcasting services provided by the BBC is applied in the | |
acquisition of independent productions. | 10 |
(6) The power to make an order under sub-paragraph (4) includes power to | |
provide that the BBC are again to be subject to a duty to which they have | |
previously ceased to be subject by virtue of such an order, in addition to or | |
instead of the duty to which they are subject (apart from the exercise of that | |
power) by virtue of this paragraph. | 15 |
(7) The Secretary of State is not to make an order for the BBC to be or to cease to | |
be subject to the duty mentioned in sub-paragraph (1) or (5) unless— | |
(a) OFCOM have made a recommendation to him that the BBC should | |
be subject to that duty, or should cease to be subject to it; and | |
(b) the order gives effect to that recommendation. | 20 |
(8) Where television broadcasting services are designated by or under an | |
agreement having effect between the Secretary of State and the BBC for the | |
purposes of section 193— | |
(a) as services that must be treated separately for the purposes of the | |
duty imposed by sub-paragraph (1) or a duty imposed under sub- | 25 |
paragraph (4), or | |
(b) as services that must be included in a group of services that must be | |
taken together for the purposes of such a duty, | |
that duty is to have effect in accordance with sub-paragraph (9). | |
(9) A duty having effect in accordance with this sub-paragraph is to have effect | 30 |
as if (instead of applying to all the television broadcasting services provided | |
by the BBC, taken together) it applied separately— | |
(a) in relation to each service that is required to be treated separately; | |
and | |
(b) in relation to each group of services that are required to be taken | 35 |
together. | |
(10) The BBC must comply with directions given to them by OFCOM for the | |
purpose of— | |
(a) carrying forward to one or more subsequent years determined in | |
accordance with the direction any shortfall for any year in their | 40 |
compliance with the duties imposed by virtue of sub-paragraph (1) | |
or (4); and | |
(b) thereby increasing the percentage applicable for the purposes of | |
those duties to the subsequent year or years. | |
(11) For the purposes of this paragraph— | 45 |
(a) the amount of the programming budget for a year, and | |
(b) the means of determining the amount of that budget that is applied | |
for any purpose, | |
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are to be computed in accordance with such provision as may be set out in | |
an order made by the Secretary of State, or as may be determined by | |
OFCOM in accordance with such an order. | |
(12) Before making an order under this paragraph the Secretary of State must | |
consult OFCOM and the BBC. | 5 |
(13) 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. | |
(14) In this paragraph— | |
“acquisition”, in relation to a programme, includes commissioning | 10 |
and acquiring a right to include it in a service or to have it | |
broadcast; and | |
“programming budget” means the budget for the production and | |
acquisition of qualifying programmes. | |
Duty to publicise complaints procedures etc. | 15 |
2 (1) It shall be the duty of the BBC to make arrangements for securing that the | |
matters mentioned in sub-paragraph (2) are brought to the attention of the | |
public (whether by means of broadcasts or otherwise). | |
(2) Those matters are— | |
(a) OFCOM’s functions under Part 5 of the 1996 Act in relation to | 20 |
services provided by the BBC; and | |
(b) any procedures established by OFCOM or the BBC for the handling | |
and resolution of complaints about the observance by the BBC of | |
standards set under section 309. | |
| 25 |
Part 2 | |
The Welsh Authority | |
Public service remits of the Welsh Authority services | |
3 (1) It shall be the duty of the Welsh Authority to secure that the public service | |
remits for each of their public television services is fulfilled. | 30 |
(2) The public service remit for S4C is the provision of a broad range of high | |
quality and diverse programming in a service in which— | |
(a) a substantial proportion of the programmes consists of programmes | |
in Welsh; | |
(b) the programmes broadcast for viewing between 6:30 PM and 10:00 | 35 |
PM on every day of the week consist mainly of programmes in | |
Welsh; and | |
(c) the programmes that are not in Welsh are normally programmes | |
which are being, have been or are to be broadcast on Channel 4. | |
(3) The public service remit for S4C Digital is the provision of a broad range of | 40 |
high quality and diverse programming in a service in which a substantial | |
proportion of the programmes consists of programmes in Welsh. | |
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(4) The public service remit for a television programme service provided by the | |
Welsh Authority with the approval of the Secretary of State under section | |
200 is the remit set out in the order approving the provision of the service. | |
(5) The Secretary of State may by order modify sub-paragraphs (2) and (3). | |
(6) Before making an order specifying or modifying the public service remit for | 5 |
any of the Welsh Authority’s public television services, the Secretary of State | |
must consult— | |
(a) the Authority; and | |
(b) where the order relates to the inclusion in any service of programmes | |
that are not in Welsh, C4C. | 10 |
(7) An order modifying the public service remit for S4C or S4C Digital must not | |
contain provision inconsistent with a requirement that each service must— | |
(a) represent a public service for the dissemination of information, | |
education and entertainment; and | |
(b) include programmes a substantial proportion of which consists of | 15 |
programmes in Welsh. | |
(8) No order is to be made containing provision authorised by sub-paragraph | |
(5) unless a draft of the order has been laid before Parliament and approved | |
by a resolution of each House. | |
Statements of programme policy | 20 |
4 (1) It shall be the duty of the Welsh Authority— | |
(a) as soon as practicable after the coming into force of this paragraph, | |
and subsequently at annual intervals, to prepare a statement of | |
programme policy; and | |
(b) to monitor their own performance in the carrying out of the | 25 |
proposals contained in statements made under this paragraph. | |
(2) Every statement of programme policy prepared under this paragraph must | |
set out the Welsh Authority’s proposals for securing that, during the | |
following year— | |
(a) the public service remit for each of their public television services to | 30 |
be provided during that year will be fulfilled; and | |
(b) the Welsh Authority’s duties under the provisions of this Schedule | |
will be performed. | |
(3) Every such statement must contain a report on the performance of the Welsh | |
Authority in the carrying out during the period since the previous statement | 35 |
of the proposals contained in that previous statement. | |
(4) When preparing such a statement, the Welsh Authority must consider— | |
(a) any guidance by OFCOM that is in force for the purposes of section | |
259; and | |
(b) any reports previously published by OFCOM under section 257 or | 40 |
348. | |
(5) Every such statement must be published by the Welsh Authority as soon as | |
practicable after its preparation is complete. | |
(6) OFCOM may direct that any statement of policy which— | |
(a) was made by the Welsh Authority before the coming into force of | 45 |
this paragraph, and | |
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(b) is specified in the direction, | |
is to be treated for the purposes of this Act as if it were a statement made in | |
relation to such period as may be so specified in pursuance of this | |
paragraph. | |
(7) A direction under sub-paragraph (6) cannot contain provision the effect of | 5 |
which is to postpone the time at which the Welsh Authority would | |
otherwise be required to make its first statement of programme policy. | |
Must-offer obligations in relation to networks and satellite services | |
5 (1) It shall be the duty of the Welsh Authority to ensure that each of their public | |
digital services is at all times offered as available (subject to the need to agree | 10 |
terms)— | |
(a) to be broadcast or distributed by means of every appropriate | |
network; and | |
(b) to be broadcast by means of every satellite television service that is | |
available for reception by members of the public in Wales. | 15 |
(2) It shall be the duty of the Welsh Authority to do their best to secure that | |
arrangements are entered into, and kept in force, that ensure— | |
(a) that each of their public digital services is broadcast or distributed on | |
appropriate networks; and | |
(b) that the broadcasting and distribution of each of their public digital | 20 |
services, in accordance with those arrangements, result in the service | |
being available for reception, by means of appropriate networks, by | |
as many members of its intended audience as practicable. | |
(3) It shall be the duty of the Welsh Authority to do their best to secure that | |
arrangements are entered into, and kept in force, that ensure— | 25 |
(a) that each of their public digital services is broadcast by means of | |
satellite television services that are broadcast so as to be available for | |
reception by members of the public in Wales; and | |
(b) that the broadcasting, in accordance with those arrangements, of | |
each of the Authority’s public digital services by means of satellite | 30 |
television services results in its being available for reception in an | |
intelligible form and by means of those services by as many members | |
of its intended audience as practicable. | |
(4) The Welsh Authority must secure that the arrangements entered into and | |
kept in force for the purposes of sub-paragraphs (2) and (3) prohibit the | 35 |
imposition, for or in connection with the provision of an appropriate | |
network or a satellite television service, of any charge that is attributable | |
(whether directly or indirectly) to the conferring of an entitlement to receive | |
each of the Authority’s public digital services in an intelligible form by | |
means of that network or service. | 40 |
(5) OFCOM may, by a direction to the Welsh Authority, require arrangements | |
made or kept in force for the purposes of sub-paragraphs (2) or (3) to apply | |
in the case of every service which is an ancillary service by reference to one | |
of their public digital services as they apply to the service itself. | |
(6) For the purposes of this paragraph a public digital service of the Welsh | 45 |
Authority is to be treated, in relation to particular appropriate networks and | |
satellite television services, as constituting such services comprised in or | |
provided with that public digital service— | |
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(a) as may be determined by agreement between the Welsh Authority | |
and OFCOM; or | |
(b) in default of agreement, as may be directed by OFCOM. | |
(7) This paragraph— | |
(a) so far as it relates to the broadcasting or distribution of any of the | 5 |
Welsh Authority’s public digital services by means of appropriate | |
networks, applies only in relation to times when that service is | |
included in the list of must-carry services in section 60; and | |
(b) so far as it relates to the broadcasting of such a public digital service | |
by means of a satellite television service, applies only in relation to | 10 |
times when that service is included in the list of must-provide | |
services in section 268. | |
(8) In this paragraph— | |
“appropriate network” means an electronic communications network | |
by means of which public electronic communications services are | 15 |
provided that are used by a significant number of end-users in | |
Wales as their principal means of receiving television programmes; | |
“intended audience”, in relation to a public digital service of the Welsh | |
Authority, means— | |
(a) if the service is one provided only for a particular area or | 20 |
locality of Wales, members of the public in that area or | |
locality; | |
(b) if the service is one provided for members of a particular | |
community, members of that community; and | |
(c) in any other case, members of the public in Wales; | 25 |
“public digital service”, in relation to the Welsh Authority, means any | |
of their public television services so far as it is provided in digital | |
form; and | |
“satellite television service” means a service which— | |
(a) consists in or involves the broadcasting of television | 30 |
programme services from a satellite; and | |
(b) is used by a significant number of the persons by whom the | |
broadcasts are received in an intelligible form as their | |
principal means of receiving television programmes. | |
(9) For the purposes of this section an electronic communications network is not | 35 |
an appropriate network in relation to so much of a channel or other service | |
as is provided only for a particular area or locality of Wales unless it is a | |
network by means of which electronic communications services are | |
provided to persons in that area or locality | |
(10) In sub-paragraph (8) “public electronic communications service” and “end- | 40 |
user” each has the same meaning as in Chapter 1 of Part 2. | |
(11) An order under section 399 must not appoint a day for provisions of this | |
paragraph to come into force that falls less than six months after the day on | |
which the order is made. | |
Supply of services by satellite in certain areas | 45 |
6 It shall be the duty of the Welsh Authority— | |
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