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(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 | |
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. | 5 |
(4) 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. | 10 |
(5) 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. | |
(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. | 15 |
(7) 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 346, of making | |
representations to them about the variation. | |
(8) Where, in a case of a proposed change of control, a notice varying a licence | 20 |
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. | |
(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 | 25 |
(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). | |
(10) Expressions used in this section and section 346 have the same meanings in this | |
section as in that. | 30 |
348 Variation of local licence following change of control | |
(1) The regulatory regime for every local sound broadcasting service provided by | |
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 | 35 |
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 349. | 40 |
(2) OFCOM must carry out a review where— | |
(a) they receive notification, in accordance with a condition of a local | |
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 | 45 |
been previously notified to OFCOM). | |
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(3) The review shall be a review of the effects or likely effects, in relation to the | |
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— | 5 |
(a) the quality and range of programmes included in the service; | |
(b) the character of the service; | |
(c) the extent to which OFCOM’s duty under section 307 is performed in | |
relation to the service. | |
(5) Where OFCOM carry out a review under subsection (2), they must publish a | 10 |
report of that review— | |
(a) setting out their conclusions; and | |
(b) specifying any steps which they propose to take under section 349. | |
(6) In this section “relevant change of control” means a change in the persons | |
having control over— | 15 |
(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) is involved, to a substantial extent, in the provision of the | 20 |
programmes included in the service provided under that | |
licence, or is likely to become 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. | |
349 Action following review under s. 348 | 25 |
(1) If, on a review under section 348, 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— | 30 |
(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 | 35 |
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 | 40 |
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). | |
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(5) If OFCOM consider that the performance of the licence holder during the three | |
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 | 5 |
determine; and | |
(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 | 10 |
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. | |
(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 | 15 |
publication of the report of the review under section 348, of making | |
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. | 20 |
(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 | |
(b) in any other case, after complying with the requirements of section | |
86(5)(b) of the 1990 Act (variation after giving opportunity for | 25 |
representations by the licence holder). | |
(11) Expressions used in this section and section 348 have the same meanings in this | |
section as in that. | |
Meaning of control | |
350 Meaning of “control” | 30 |
(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 | |
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 | 35 |
(b) for “the affairs” there shall be substituted “affairs”. | |
(2) After paragraph 1(3) of that Part of that Schedule there shall be inserted— | |
“ (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 | 40 |
with more than a 20 per cent. interest in that body.” | |
(3) In paragraph 1(6) of that Part of that Schedule— | |
(a) the words “more than”, wherever occurring shall be omitted; and | |
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(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 | |
concerning the inclusion of particular matters in the matters that they will take | 5 |
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. | |
(6) OFCOM must publish the guidance and, where they revise it, the revised | 10 |
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 | 15 |
351 Annual factual and statistical report | |
(1) It shall be the duty of OFCOM— | |
(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 | 20 |
twelve months, | |
to satisfy for that period the review and reporting requirements of this section. | |
(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 | 25 |
Kingdom during that period; and | |
(b) to prepare a factual and statistical report for that period on the | |
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 | 30 |
consider, in particular, each of the following— | |
(a) the extent to which programmes included during that period in | |
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 | 35 |
5 of the 1996 Act (listed events and fairness) have been complied with | |
during that period; | |
(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 | 40 |
services are provided and of the market in which programmes for such | |
services are produced; | |
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(e) what it is appropriate to achieve by conditions and duties under section | |
273 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 | 5 |
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; | 10 |
(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; | 15 |
(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 | |
radio services and the production of programmes for inclusion in such | |
services; | |
(k) the availability during that period of facilities for the provision of | 20 |
training in such skills. | |
(4) Every report under this section must set out OFCOM’s findings on their | |
consideration of the matters mentioned in subsection (3). | |
(5) Every report prepared by OFCOM under this section must be published by | |
them— | 25 |
(a) as soon as practicable after its preparation is complete; and | |
(b) in such manner as they consider appropriate. | |
(6) OFCOM’s duties under this section are in addition to their duties under section | |
260. | |
Grants for access radio | 30 |
352 Grants to access radio providers | |
(1) OFCOM may make such grants as they consider appropriate to the provider of | |
any service of a description of service in relation to which provision is for the | |
time being in force under section 258. | |
(2) A grant made under this section may be made on such terms and conditions, | 35 |
and shall become repayable to OFCOM in such circumstances, as may be | |
specified by OFCOM when making the grant. | |
(3) A person is not— | |
(a) by reason of the making to him of a grant under this section, or | |
(b) by reason of any terms or conditions (including any provisions for | 40 |
repayment) subject to which such a grant is or has been made to him, | |
to be a disqualified person by virtue of any provision of Schedule 2 to the 1990 | |
Act in relation to an access radio licence. | |
(4) In subsection (3) “access radio licence” means a licence under Part 3 of the 1990 | |
Act, or under Part 2 of the 1996 Act, which is granted in accordance with any | 45 |
provision made by an order under section 258 of this Act. | |
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