Digital Economy Bill [HL]

House of Lords

Session 2009 - 10
Internet Publications
Other Bills before Parliament

Digital Economy Bill [HL]

Digital Economy Bill [HL]
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Content and character of local sound broadcasting services
(1)
In section 106(1A) of the Broadcasting Act 1990 (conditions relating to
departures from character of licensed service), after paragraph (d) insert “; or
(e)
that, in the case of a local licence—
(i)
the departure would result from programmes included
5
in the licensed service ceasing to be made at premises in
the area or locality for which the service is provided, but
(ii)
those programmes would continue to be made wholly
or partly at premises within the approved area (as
defined in section 314 of the Communications Act 2003
10
(local content and character of services)).”
(2)
Section 314 of the Communications Act 2003 (local content and character of
local sound broadcasting services) is amended as follows.
(3)
In subsection (1), in paragraph (a), omit the words from “but” to “that case”.
(4)
After that subsection insert—
15
“(1A)
Paragraphs (a) and (b) of subsection (1) apply in the case of each local
sound broadcasting service only if and to the extent (if any) that
OFCOM consider it appropriate in that case.”
(5)
In subsection (7)—
(a)
before the definition of “local material” insert—
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““approved area”, in relation to programmes included in a
local sound broadcasting service, means an area
approved by OFCOM for the purposes of this section
that includes the area or locality for which the service is
provided;”, and
25
(b)
in the definition of “locally-made”, at the end insert “or, if there is an
approved area for the programmes, that area”.
(6)
After subsection (8) insert—
“(9)
Before approving an area for the purposes of this section, OFCOM must
publish a document specifying—
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(a)
the area that they propose to approve, and
(b)
a period in which representations may be made to OFCOM
about the proposals.
(10)
OFCOM may withdraw their approval of all or part of an area at any
time if the holder of the licence to provide the local sound broadcasting
35
service concerned consents.
(11)
Where OFCOM approve an area or withdraw their approval of an area,
they must publish, in such manner as they consider appropriate, a
notice giving details of the area.”
(7)
The requirement under section 314(9) of the Communications Act 2003 may be
40
satisfied by the publication of a document before this section comes into force.

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Local radio multiplex services: frequency and licensed area
After section 54 of the Broadcasting Act 1996 insert—
“54A
Variation of local radio multiplex licences: frequency or licensed area
(1)
OFCOM may, if the requirements of this section are met, vary a local
radio multiplex licence by—
5
(a)
varying the frequency on which the licensed service is required
to be provided,
(b)
reducing the area or locality in which the licensed service is
required to be available, or
(c)
extending that area or locality to include an adjoining area or
10
locality.
(2)
OFCOM must have received an application for the variation from the
licence holder.
(3)
The application must include a technical plan relating to the service
proposed to be provided under the licence indicating, in particular—
15
(a)
the area or locality which would be within the coverage area of
the service,
(b)
the timetable in accordance with which that coverage would be
achieved, and
(c)
the technical means by which it would be achieved.
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(4)
Before deciding whether to grant the application, OFCOM must
publish a notice specifying—
(a)
the proposed variation of the licence, and
(b)
a period in which representations may be made to OFCOM
about the proposal.
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(5)
OFCOM may vary the licence in accordance with the application only
if they are satisfied that doing so would not unacceptably narrow the
range of programmes available by way of local digital sound
programme services to persons living in the area or locality for which,
before the proposed variation, the local radio multiplex service is
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required to be available.”
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Renewal of radio multiplex licences
(1)
After section 58 of the Broadcasting Act 1996 insert—
“58A
Renewal of radio multiplex licences: supplementary
(1)
The Secretary of State may by regulations—
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(a)
amend section 58, and
(b)
make further provision about the renewal of radio multiplex
licences.
(2)
The regulations may, in particular, make provision about—
(a)
the circumstances in which OFCOM may renew a radio
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multiplex licence,
(b)
the period for which a licence may be renewed,
(c)
the information that OFCOM may require an applicant for
renewal of a licence to provide,

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(d)
the requirements that must be met by such an applicant,
(e)
the grounds on which OFCOM may refuse an application for
renewal of a licence,
(f)
payments to be made in respect of a licence following its
renewal, and
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(g)
further conditions to be included in a licence following its
renewal.
(3)
The regulations may, in particular, amend or modify this Part of this
Act.
(4)
A statutory instrument containing the regulations may not be made
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unless a draft of the instrument has been laid before, and approved by
a resolution of, each House of Parliament.
(5)
The power to make regulations under this section may not be exercised
after 31 December 2015 (but this does not affect the continuation in
force of any regulations made under this section before that date).”
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(2)
In section 72(1) of that Act (interpretation of Part 2), before the definition of
“radio multiplex service” insert—
““radio multiplex licence” means a licence to provide a radio
multiplex service;”.
Regulation of television and radio services
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Application of regulatory regimes to broadcasters
In section 263 of the Communications Act 2003 (application of regulatory
regimes to broadcasters), for subsection (4) substitute—
“(4)
The Secretary of State may by order provide for—
(a)
a condition included by virtue of this Act in a regulatory regime
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to be excluded from the regime;
(b)
a condition excluded from a regulatory regime by an order
under this subsection to be included in the regime again.
(4A)
An order under subsection (4) may, in particular, provide for a
condition to be included or excluded for a period specified in the
30
order.”
Access to electromagnetic spectrum
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Payment for licences
(1)
Section 12 of the Wireless Telegraphy Act 2006 (charges for grant of licence) is
amended as follows.
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(2)
In subsection (5) at the end insert “, but this is subject to subsection (6).”
(3)
After subsection (5) insert—
“(6)
Regulations under or for the purposes of subsection (1)(b), so far as it
relates to payments during the term of a licence, may be made so as to
apply in relation to a licence granted in accordance with regulations
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under section 14, but only in the following cases—

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(a)
where provision included in the licence with the consent of the
holder of the licence provides for the regulations to apply;
(b)
where the licence includes terms restricting the exercise by
OFCOM of their power to revoke the licence before the end of a
period and that period has expired;
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(c)
where the licence would, but for a variation, have ceased to
have effect at the end of a period and that period has expired;
(d)
where the licence is a surrendered-spectrum licence.
(7)
Provision may not be made by virtue of subsection (6)(c) or (d) without
the consent of the Secretary of State.
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(8)
A wireless telegraphy licence is a “surrendered-spectrum licence” if —
(a)
it is granted under arrangements involving (before the grant or
later) the variation, revocation or expiry of another wireless
telegraphy licence;
(b)
the arrangements are with a view to enabling the holder of that
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other licence to comply with a limit applying to frequencies in
respect of which a person may hold licences; and
(c)
it authorises the use after that variation, revocation or expiry of
a frequency whose use until then was or is authorised by that
other licence.
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(9)
In relation to a surrendered-spectrum licence there may be more than
one such other licence (“predecessor licence”) and a licence may be a
predecessor licence to more than one surrendered-spectrum licence.”
(4)
Section 14 of the Wireless Telegraphy Act 2006 (bidding for licences) is
amended as follows.
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(5)
In subsection (5) after “those sums must” insert “, subject to subsection (5A),”.
(6)
After subsection (5) insert—
“(5A)
The regulations may, with the consent of the Secretary of State, make
provision permitting or requiring a surrendered-spectrum licence to
which the regulations apply to include—
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(a)
provision requiring all or part of a sum that would otherwise be
payable to OFCOM under subsection (5) to be paid to a person
who was or is the holder of a predecessor licence;
(b)
provision requiring a sum in addition to that payable to
OFCOM under subsection (5) to be paid to such a person;
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(c)
provision specifying any such sum or part or the method for
determining it.”
(7)
After subsection (8) insert—
“(9)
In subsection (5A) “surrendered-spectrum licence” and “predecessor
licence” have the meaning given by section 12(8) and (9).”
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Enforcement of licence terms etc
(1)
In Chapter 4 of Part 2 of the Wireless Telegraphy Act 2006 (enforcement of

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regulation of radio spectrum) after section 43 insert—
“43A
Special procedure for contraventions of certain provisions
(1)
OFCOM may impose a penalty on a person if—
(a)
that person is or has been in contravention in any respect of a
provision, term or limitation of a wireless telegraphy licence;
5
(b)
OFCOM have notified that person that it appears to them that
the provision, term or limitation has been contravened in that
respect;
(c)
this section applies to that contravention by virtue of provision
included in the licence; and
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(d)
that contravention is not one in respect of which proceedings
for an offence under this Chapter have been brought against
that person.
(2)
A licence may provide in accordance with subsection (1)(c) that this
section applies to the contravention of a provision, term or limitation
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only if it appears to OFCOM that a direction under section 5 requires
the provision, term or limitation to be included in the licence.
(3)
Where OFCOM impose a penalty on a person under this section, they
must—
(a)
notify that person of that decision and of their reasons for that
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decision; and
(b)
in that notification, fix a reasonable period after it is given as the
period within which the penalty is to be paid.
(4)
A penalty imposed under this section—
(a)
must be paid to OFCOM; and
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(b)
if not paid within the period fixed by them, is to be recoverable
by them accordingly.
(5)
No proceedings for an offence under this Chapter may be commenced
against a person in respect of a contravention in respect of which a
penalty has been imposed by OFCOM under this section.
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(6)
The amount of a penalty imposed under this section is to be such
amount not exceeding 10 per cent of the relevant amount of gross
revenue as OFCOM think—
(a)
appropriate; and
(b)
proportionate to the contravention in respect of which it is
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imposed.”
(2)
In section 44 of that Act (relevant amount of gross revenue), in subsections (1)
and (10), after “43” insert “or 43A”.
Video recordings
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Classification of video games etc
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(1)
Section 2 of the Video Recordings Act 1984 (exempted video works) is
amended as follows.
(2)
In subsection (1)—
(a)
after “video work” insert “other than a video game”,

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(b)
after paragraph (a) insert “or”, and
(c)
omit paragraph (c) (and the word “or” before it).
(3)
After that subsection insert—
“(1A)
Subject to subsection (2) or (3) below, a video game is for the purposes
of this Act an exempted work if—
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(a)
it is, taken as a whole, designed to inform, educate or instruct;
(b)
it is, taken as a whole, concerned with sport, religion or music;
or
(c)
it satisfies one or more of the conditions in section 2A.”
(4)
After section 2 of that Act insert—
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“2A
Conditions relating to video games
(1)
The conditions referred to in section 2(1A)(c) are as follows.
(2)
The first condition is that the video game does not include any of the
following—
(a)
depictions of violence towards human or animal characters,
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whether or not the violence looks realistic and whether or not
the violence results in obvious harm,
(b)
depictions of violence towards other characters where the
violence looks realistic,
(c)
depictions of criminal activity that are likely, to any extent, to
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stimulate or encourage the commission of offences,
(d)
depictions of activities involving illegal drugs or the misuse of
drugs,
(e)
words or images that are likely, to any extent, to stimulate or
encourage the use of alcohol or tobacco,
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(f)
words or images that are intended to convey a sexual message,
(g)
swearing, or
(h)
words or images that are intended or likely, to any extent, to
cause offence, whether on the grounds of race, gender,
disability, religion or belief or sexual orientation or otherwise.
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(3)
In subsection (2) “human or animal character” means a character that is,
or whose appearance is similar to that of—
(a)
a human being, or
(b)
an animal that exists or has existed in real life,

but does not include a simple stick character or any equally basic
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representation of a human being or animal.
(4)
The second condition is that the designated authority, or a person
nominated by the designated authority for the purposes of this section,
has confirmed in writing that the video game is suitable for viewing by
persons under the age of 12.
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(5)
The Secretary of State may by regulations amend this section—
(a)
by amending the first condition, or
(b)
by adding a further condition (or by amending or removing
such a condition).
(6)
Regulations under this section may make provision by reference to
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documents produced by the designated authority.”

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(5)
In section 3 of that Act (exempted supplies), after subsection (8) insert—
“(8A)
The supply of a video recording in the form of a machine of a type
designed primarily for use in an amusement arcade is an exempted
supply unless the video game (or, if more than one, any of the video
games) that it contains—
5
(a)
depicts, to any significant extent, anything falling within section
2(2)(a), (b), (c) or (d) or (3), or
(b)
is likely to any significant extent to stimulate or encourage
anything falling within section 2(2)(a) or, in the case of anything
falling within section 2(2)(b), is likely to any extent to do so.
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(8B)
The supply of any other video recording is an exempted supply if the
recording is supplied for the purpose only of its use in connection with
a supply that is an exempted supply under subsection (8A).”
(6)
At the end of that section insert—
“(13)
The Secretary of State may by regulations amend this section and the
15
regulations may, in particular—
(a)
add a case in which the supply of a video recording is an
exempted supply for the purposes of this Act, or
(b)
repeal a provision of this section.”
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Designated authority for video games etc
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(1)
After section 4 of the Video Recordings Act 1984 insert—
“4ZA
Designated authorities for video games and other video works
(1)
The power to designate a person by notice under section 4 includes
power to designate different persons—
(a)
as the authority responsible for making arrangements in respect
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of video games (“the video games authority”), and
(b)
as the authority responsible for making arrangements in respect
of other video works (“the video works authority”).
(2)
Where there are two designated authorities, references in this Act to the
designated authority, in relation to a video work, are references to the
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designated authority responsible for making arrangements in respect
of the video work, taking account of any allocation in force under
section 4ZB.
4ZB
Designated authorities: allocation of responsibility for video games
(1)
Where there are two designated authorities, the video games authority
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may, with the consent of the video works authority, allocate to that
authority responsibility—
(a)
for a class of video games, or
(b)
for video games, or a class of video games, when (and only
when) they are contained in a video recording that is described
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in the allocation (whether by reference to its contents, to the
manner in which it is, or is to be, supplied or otherwise).
(2)
If an allocation is in force—