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(a) at any time when an application under section 223 for a review of those | |
terms is pending; or | |
(b) at any time in the period of twelve months following the day on which | |
a determination by OFCOM on such an application is notified to the | |
licence holder. | 5 |
(6) For the purposes of this section an application for a review under section 223 | |
is pending from the time when the application is made until the end of the day | |
on which OFCOM’s determination on the review is notified to the licence | |
holder. | |
(7) In this section— | 10 |
“the first notional expiry date”, in relation to a replacement licence, means | |
the date with which (apart from this Act) the existing licence would | |
have expired if not renewed; | |
“subsequent notional expiry date”, in relation to a replacement licence, | |
means— | 15 |
(a) in a case in which an application by the licence holder for a | |
review under this section was made during the review period | |
beginning four years before the last notional expiry date, the | |
tenth anniversary of the date on which OFCOM’s | |
determination on that review was notified to the licence holder; | 20 |
and | |
(b) in any other case, the tenth anniversary of the last notional | |
expiry date; | |
“tender notice” means a notice under section 15(1) of the 1990 Act or (as | |
the case may be) paragraph 1 of Schedule 10. | 25 |
(8) In subsection (7) “existing licence” has the same meaning as in section 212 or | |
(as the case may be) 218. | |
223 Application for review of financial terms in consequence of new obligations | |
(1) This section applies where an order is made under section 403 that brings | |
section 268, 269 or 270 (or any two or more of them) into force for the purpose | 30 |
of including conditions in the regulatory regime for— | |
(a) a Channel 3 service; | |
(b) Channel 5; or | |
(c) the public teletext service. | |
(2) The holder of a licence in which conditions mentioned in section 268, 269 or 270 | 35 |
will fall to be included when the order comes into force may apply to OFCOM, | |
at any time in the review period, for a review of the financial terms on which | |
the licence is held. | |
(3) For the purposes of this section the review period in the case of an order under | |
section 403 is the period which— | 40 |
(a) begins with the day on which the order is made; and | |
(b) ends with the time at which, by virtue of the order, one or more of | |
sections 268, 269 and 270 come into force in the case of the licence in | |
question. | |
(4) If in the case of the same order there is more than one time falling within | 45 |
subsection (3)(b), the review period ends with the later or latest of them. | |
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224 Reviews under ss. 222 and 223 | |
(1) This section applies where an application is made under section 222 or 223 for | |
a review of the financial terms on which a licence is held. | |
(2) As soon as reasonably practicable after receiving the application, OFCOM | |
must— | 5 |
(a) determine the amount to be paid to them under the conditions of the | |
licence for the first calendar year falling wholly or partly within the | |
period under review to begin after the application date; and | |
(b) determine the percentage to be used for computing the payments to be | |
made to them under those conditions in respect of each accounting | 10 |
period falling within the period under review to begin after that date. | |
(3) The amount determined under subsection (2)(a) must be equal to the amount | |
which, in OFCOM’s opinion, would have been the cash bid of the licence | |
holder were the licence being granted afresh on an application made in | |
accordance with— | 15 |
(a) section 15 of the 1990 Act (licences for Channel 3 service or Channel 5); | |
or | |
(b) paragraph 3 of Schedule 10 to this Act. | |
(4) The determination required by subsection (2)(b) is a determination of the | |
percentage of qualifying revenue for each accounting period that is to be paid | 20 |
to OFCOM. | |
(5) For the purposes of subsection (2)(b)— | |
(a) different percentages may be determined for different accounting | |
periods; and | |
(b) the percentages that may be determined for an accounting period | 25 |
include a nil percentage. | |
(6) In making their determinations on an application under section 223 OFCOM | |
are to have regard, in particular, to any additional costs that are likely to be | |
incurred by the licence holder in consequence of the commencement of so | |
much of section 268, 269 or 270 (or any two or more of them) as is brought into | 30 |
force by the commencement order in question. | |
(7) References in this section to qualifying revenue for an accounting period are to | |
be construed— | |
(a) in the case of the holder of a licence to provide a Channel 3 service or | |
Channel 5, in accordance with section 19 of and Part 1 of Schedule 7 to | 35 |
the 1990 Act; and | |
(b) in the case of the holder of the licence to provide the public teletext | |
service, in accordance with Part 3 of Schedule 10 to this Act. | |
(8) In this section— | |
“the application date”, in relation to a review, means the date of the | 40 |
making under section 222 or 223 of the application for the review; and | |
“the period under review”, in relation to a review of the financial terms of | |
a licence, means so much of the period for which the licence will (if not | |
renewed) continue in force after the application date. | |
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225 Giving effect to reviews under ss. 222 and 223 | |
(1) As soon as reasonably practicable after making a determination under section | |
224 on an application under section 222 or 223, OFCOM must give a | |
notification of their determination to the applicant. | |
(2) The notification must set out— | 5 |
(a) the determination made by OFCOM; | |
(b) the modifications of the applicant’s licence that are required to give | |
effect to the determination; | |
(c) a date by which the applicant must notify OFCOM whether or not he | |
accepts the determination and modifications; and | 10 |
(d) a subsequent date by which the applicant’s licence will cease to have | |
effect if he does not. | |
(3) The modifications set out in accordance with subsection (2)(b) must secure that | |
the amount falling to be paid under the conditions of the applicant’s licence for | |
each calendar year subsequent to that for which an amount has been | 15 |
determined in accordance with section 224(2)(a) is the amount so determined | |
as increased by the appropriate percentage. | |
(4) In the case of a determination on an application under section 222, the date | |
specified in accordance with subsection (2)(d) must not fall before whichever | |
is the earlier of — | 20 |
(a) the next notional expiry date after the application for the review; and | |
(b) the end of the licensing period in which that application was made. | |
(5) Where the applicant notifies OFCOM that he accepts the determination— | |
(a) his licence is to have effect with the modifications set out in OFCOM’s | |
notification; and | 25 |
(b) all such adjustments by way of payment or repayment as may be | |
necessary for giving effect to the modifications are to be made in | |
respect of any payments already made for years or periods affected by | |
the modifications. | |
(6) Where the applicant does not, before the date specified in accordance with | 30 |
paragraph (c) of subsection (2), notify OFCOM that he accepts the | |
determination, his licence shall have effect as if the period for which it is to | |
continue in force ended with the time specified in accordance with paragraph | |
(d) of that subsection. | |
(7) Where the time at which a licence would cease to have effect in accordance | 35 |
with subsection (6) is the end of a licensing period, that subsection does not | |
affect any rights of the licence holder with respect to the renewal of his licence | |
from the end of that period. | |
(8) In this section— | |
“the appropriate percentage” has the same meaning as in section 19 of the | 40 |
1990 Act; | |
“licensing period” means— | |
(a) the period beginning with the commencement of this section | |
and ending with the initial expiry date; or | |
(b) any subsequent period of ten years beginning with the end of | 45 |
the previous licensing period; | |
“notional expiry date” means a first or subsequent notional expiry date | |
within the meaning of section 222. | |
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226 Report in anticipation of new licensing round | |
(1) OFCOM must, in anticipation of the end of each licensing period— | |
(a) prepare a report under this section; and | |
(b) submit it to the Secretary of State no later than thirty months before the | |
end of that period. | 5 |
(2) A report under this section must set out OFCOM’s opinion on the effect of each | |
of the matters mentioned in subsection (3) on the capacity of the holders of | |
relevant licences to contribute, in the next licensing period, to the fulfilment of | |
the purposes of public service television broadcasting in the United Kingdom | |
at a cost to the licence holders that is commercially sustainable. | 10 |
(3) Those matters are— | |
(a) the arrangements that (but for an order under section 227) would allow | |
for the renewal of relevant licences from the end of the current licensing | |
period; and | |
(b) the conditions included in the regulatory regimes for the services | 15 |
provided under relevant licences. | |
(4) A report under this section must also include the recommendations (if any) | |
which OFCOM consider, in the light of the opinion set out in the report, should | |
be made to the Secretary of State for the exercise by him of— | |
(a) his power under section 227; or | 20 |
(b) any of the powers to make statutory instruments that are conferred on | |
him by Chapter 4 of this Part. | |
(5) Where the Secretary of State makes an order under section 221 after receiving | |
a report under this section in anticipation of the end of the licensing period that | |
is extended by the order— | 25 |
(a) he may require OFCOM to prepare a supplementary report in the light | |
of the postponement of the beginning of the next licensing period; and | |
(b) it shall be the duty of OFCOM, within such period as may be specified | |
by the Secretary of State, to prepare the required supplementary report | |
and to submit it to him. | 30 |
(6) References in this section to the purposes of public service television | |
broadcasting in the United Kingdom are to be construed in accordance with | |
subsection (4) of section 260; and subsection (5) of that section shall have effect | |
for the purposes of a report under this section as it applies for the purposes of | |
a report under that section. | 35 |
(7) In this section— | |
“licensing period” means— | |
(a) the period beginning with the commencement of this section | |
and ending with the initial expiry date; or | |
(b) any subsequent period of ten years beginning with the end of | 40 |
the previous licensing period; | |
“relevant licence” means— | |
(a) a licence to provide a Channel 3 service; | |
(b) a licence to provide Channel 5; or | |
(c) the licence to provide the public teletext service. | 45 |
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