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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(a)
subsection (4)(b),
(b)
in subsection (4)(c), the words from “or OFCOM” to the end,
(c)
subsection (6)(a),
(d)
subsection (8)(a), and
(e)
subsection (9)(c).
5
(4)
Where OFCOM renew a licence under this section they must include in
the licence as renewed a condition requiring the licence holder to do all
that the licence holder can to secure the broadcasting of a simulcast
radio service in digital form throughout the renewal period.”
(3)
Section 103A(12) of the Broadcasting Act 1990 (as applied by section 103B of
10
that Act) does not prevent the determination of a date falling less than one year
after the making of the determination where—
(a)
the Office of Communications consider that the relevant date for the
purposes of that section (as applied) is a date which is not more than 15
months after the day on which this section comes into force, and
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(b)
the determination is made as soon as practicable after that day.
33
Renewal and variation of local radio licences
(1)
In section 104A of the Broadcasting Act 1990 (renewal of local licences)—
(a)
in subsection (1), after “renewed” insert “under this section”, and
(b)
after that subsection insert—
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“(1A)
A local licence may be renewed under this section only if it is
granted before the day on which section 104AA comes into
force.”
(2)
After that section insert—
“104AA
Further renewal of local licences
25
(1)
A local licence may be renewed under this section on one occasion for
a period of not more than 7 years beginning with the date of renewal
(subject to the following provisions of this section and section 104AB).
(2)
A local licence may be renewed under this section only if—
(a)
it has been renewed under section 104A, or
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(b)
it is granted on or after the day on which this section comes into
force.
(3)
Subsections (3) to (12), (13) and (14) of section 104A apply in relation to
the renewal of a licence under this section as they apply in relation to
the renewal of a licence under section 104A, subject to subsections (4)
35
and (5).
(4)
Section 104A(3) (as applied) has effect as if the words “Subject to
subsection (2)” were omitted.
(5)
In the case of an approved licence, if an applicant for renewal of the
licence under this section makes a national nomination in accordance
40
with section 104AB, section 104A (as applied) has effect as if—
(a)
subsections (4) and (13)(b) were omitted,

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(b)
references to the nominated local digital sound programme
service were references to the national digital sound
programme service nominated under section 104AB, and
(c)
references to the nominated local radio multiplex service were
references to the national radio multiplex service nominated
5
under section 104AB.
(6)
In this section and sections 104AB and 104AC—
“approved licence” means a local licence approved by OFCOM for
the purposes of this section;
“local digital sound programme service”, “local radio multiplex
10
service”, “national digital sound programme service” and
“national radio multiplex service” have the same meanings as in
Part 2 of the Broadcasting Act 1996.
(7)
Before approving a licence for the purposes of this section, OFCOM
must publish a document specifying—
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(a)
the licence proposed to be approved, and
(b)
a period in which representations may be made to OFCOM.
104AB
Renewal under section 104AA: nomination of national services
(1)
For the purposes of section 104AA, a “national nomination” by an
applicant for the renewal of an approved licence is the nomination of—
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(a)
a national digital sound programme service provided or to be
provided by the applicant, and
(b)
a national radio multiplex service.
(2)
A national nomination must be made in the application for the renewal
of the approved licence or before OFCOM consider the application.
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(3)
The applicant may not nominate a national digital sound programme
service unless OFCOM are satisfied that, if the application in question
were granted, the programmes included in that service in each calendar
month would include at least 80% of the programmes included in the
service provided under the approved licence.
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(4)
A national nomination must specify the other approved licences (if
any) in relation to which, in reliance on the nomination, an application
may be made under section 104AC.
104AC
Variation of conditions relating to digital services
(1)
This section applies where—
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(a)
a licence that is an approved licence has been renewed under
section 104A and includes a local digital services condition,
(b)
an application has been made under section 104AA for the
renewal of another approved licence and the applicant has
made a national nomination under section 104AB, and
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(c)
the nomination specifies the licence mentioned in paragraph (a)
in accordance with section 104AB(4).
(2)
OFCOM may, if the requirements of subsections (3) and (4) are met,
vary the licence mentioned in subsection (1)(a) by—
(a)
removing the local digital services condition, and
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(b)
adding a national digital services condition.

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(3)
OFCOM must have received an application for the variation from the
licence holder.
(4)
OFCOM must be satisfied that, if they varied the licence, the
programmes included in the nominated national digital sound
programme service in each calendar month would include at least 80%
5
of the programmes included in the service provided under that licence.
(5)
In this section—
“local digital services condition” means a condition requiring the
licence holder to do all that the licence holder can to ensure that
a local digital sound programme service is broadcast by means
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of a local radio multiplex service;
“national digital services condition” means a condition requiring
the licence holder to do all that the licence holder can to ensure
that the nominated national digital sound programme service is
broadcast by means of the nominated national radio multiplex
15
service until the day on which the licence (as renewed under
section 104A) is to expire;
“nominated” means nominated in the nomination referred to in
subsection (1)(b).”
(3)
Section 104A(14) of the Broadcasting Act 1990 (as applied by section 104AA of
20
that Act) does not prevent the determination of a date falling less than one year
after the making of the determination where—
(a)
the Office of Communications consider that the relevant date for the
purposes of that section (as applied) is a date which is not more than 15
months after the day on which this section comes into force, and
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(b)
the determination is made as soon as practicable after that day.
(4)
The requirement under section 104AA(7) of the Broadcasting Act 1990 may be
satisfied by the publication of a document before this section comes into force.
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Variation of licence period following renewal
(1)
In section 86(6) of the Broadcasting Act 1990 (variation of licence period etc),
30
after “section 97B” (inserted by section 31) insert “, 105A”.
(2)
Before section 106 (but after the heading preceding that section) insert—
“105A
Variation of licence period following renewal
(1)
This section applies if the Secretary of State—
(a)
has not nominated a date for digital switchover under section
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97A for one or more relevant renewed services, or
(b)
has withdrawn the nomination of such a date and has not
nominated another such date under that section.
(2)
The Secretary of State may give notice to OFCOM fixing a date (the
“termination date”) in relation to that service or such of those services
40
as are specified or described in the notice.
(3)
The Secretary of State may fix different dates for different services but
may not fix a date falling before 31 December 2015.
(4)
If the period for which a licence to provide a relevant renewed service
is to continue in force ends after the termination date fixed for the
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service, OFCOM must by notice vary the licence so that the period ends
on or before that date, subject to subsection (5).
(5)
OFCOM may not reduce the period so that it ends on a day falling less
than 2 years after the date on which they issue the notice, unless the
licence holder consents to such a reduction.
5
(6)
If the period for which a licence to provide a relevant renewed service
is to continue in force ends on or before the termination date fixed for
the service, OFCOM may not vary the licence so that the period ends
after that date.
(7)
“Relevant renewed service” means a national service provided under a
10
licence that has been renewed under section 103B or a local service
provided under a licence that has been renewed under section 104AA.”
(3)
In section 199(5) of that Act (publication of notices by OFCOM), after “103,”
insert “105A,”.
(4)
If on 31 December 2012, in relation to a relevant renewed service (as defined in
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section 105A(7) of the Broadcasting Act 1990)—
(a)
section 105A of that Act applies, but
(b)
the Secretary of State has not given a notice under that section,

the Secretary of State must, before 31 December 2013, consider whether to give
a notice under that section in relation to that service.
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35
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
25
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
30
(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—
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“(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
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(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—
5
(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
10
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
15
satisfied by the publication of a document before this section comes into force.
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Radio multiplex services: frequency and licensed area
After section 54 of the Broadcasting Act 1996 insert—
“54A
Variation of radio multiplex licences: frequency or licensed area
(1)
OFCOM may, if the requirements of subsections (3) to (5) are met, vary
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a national radio multiplex licence by extending the area in which the
licensed service is required to be available.
(2)
OFCOM may, if the requirements of subsections (3) to (6) are met, vary
a local radio multiplex licence by—
(a)
varying the frequency on which the licensed service is required
25
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
locality.
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(3)
OFCOM must have received an application for the variation from the
licence holder.
(4)
The application must include a technical plan relating to the service
proposed to be provided under the licence indicating, in particular—
(a)
the area or locality which would be within the coverage area of
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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.
(5)
Before deciding whether to grant the application, OFCOM must
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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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(6)
In the case of a local radio multiplex licence, 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,
5
the local radio multiplex service is 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—
10
(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
15
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,
(d)
the requirements that must be met by such an applicant,
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(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
(g)
further conditions to be included in a licence following its
25
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
unless a draft of the instrument has been laid before, and approved by
30
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).”
(2)
In section 72(1) of that Act (interpretation of Part 2), before the definition of
35
“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
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In section 263 of the Communications Act 2003 (application of regulatory

Digital Economy Bill [HL]
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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
to be excluded from the regime;
(b)
a condition excluded from a regulatory regime by an order
5
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
order.”
Access to electromagnetic spectrum
10
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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.
(2)
In subsection (5) at the end insert “, but this is subject to subsection (6).”
(3)
After subsection (5) insert—
15
“(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
under section 14, but only in the following cases—
(a)
where provision included in the licence with the consent of the
20
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;
(c)
where the licence would, but for a variation, have ceased to
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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.
(8)
A wireless telegraphy licence is a “surrendered-spectrum licence” if —
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(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
other licence to comply with a limit applying to frequencies in
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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.
(9)
In relation to a surrendered-spectrum licence there may be more than
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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.