Office of Public Sector Information
Section 73.
1 (1) In Part I of Schedule 2, paragraph 1 (which contains interpretative provisions) is amended as follows.
(2) In sub-paragraph (1)—
(a) before the definition of “advertising agency” there is inserted—
““the 1996 Act” means the Broadcasting Act 1996;”,
(b) for paragraph (a) of the definition of “associate” there is substituted—
“(a) in relation to a body corporate, shall be construed in accordance with paragraph (1A), and”,
(c) in paragraph (b) of the definition of “control” for “by virtue of the rules regulating that or any other body” there is substituted “by whatever means and whether directly or indirectly”,
(d) after the definition of “control” there is inserted—
““coverage area”, in relation to a service, shall be construed in accordance with paragraph 3A;
“digital programme service” has the same meaning as in Part I of the 1996 Act;”,
(e) after the definition of “local delivery service” there is inserted—
““local digital sound programme service” and “national digital sound programme service” have the same meaning as in Part II of the 1996 Act;
“local radio multiplex service” and “national radio multiplex service” have the same meaning as in Part II of the 1996 Act;”, and
(f) at the end there is inserted—
““television multiplex service” means a multiplex service within the meaning of Part I of the 1996 Act.”.
(3) After sub-paragraph (1) there is inserted—
“(1A) For the purpose of determining the persons who are the associates of a body corporate for the purposes of this Schedule—
(a) an individual shall be regarded as an associate of a body corporate if he is a director of that body corporate, and
(b) a body corporate and another body corporate shall be regarded as associates of each other if one controls the other or if the same person controls both.”
(4) For sub-paragraph (3) there is substituted—
“(3) For the purposes of this Schedule a person controls a body corporate if—
(a) he holds, or is beneficially entitled to, more than 50 per cent. of the equity share capital in the body, or possesses more than 50 per cent. of the voting power in it, or
(b) although he does not have such an interest in the body, it is reasonable, having regard to all the circumstances, to expect that he will be able, by whatever means and whether directly or indirectly, to achieve the result that the affairs of the body are conducted in accordance with his wishes; or
(c) he holds, or is beneficially entitled to, 50 per cent. of the equity share capital in that body, or possesses 50 per cent. of the voting power in it, and an arrangement exists between him and any other participant in the body as to the manner in which any voting power in the body possessed by either of them is to be exercised, or as to the omission by either of them to exercise such voting power.
(3A) For the purposes of sub-paragraph (3)(c)—
(a) “arrangement” includes any agreement or arrangement, whether or not it is, or is intended to be, legally enforceable, and
(b) a person shall be treated—
(i) as holding, or being beneficially entitled to, any equity share capital which is held by a body corporate which he controls or to which such a body corporate is beneficially entitled, and
(ii) as possessing any voting power possessed by such a body corporate.”
(5) Sub-paragraph (4) is omitted.
(6) For sub-paragraph (6) there is substituted—
“(6) In this Schedule any reference to a participant with more than a 20 per cent. interest in a body corporate is a reference to a person who—
(a) holds or is beneficially entitled to more than 20 per cent. of the shares in that body, or
(b) possesses more than 20 per cent. of the voting power in that body.
(7) Sub-paragraph (6) shall have effect subject to the necessary modifications in relation to other references in this Schedule—
(a) to an interest of more than a specified percentage in a body corporate, or
(b) to an interest of a specified percentage or more in a body corporate.
(8) Any reference in this Schedule to a person who is over a particular age is a reference to a person who has attained that age.”
2 (1) Paragraph 2 of Part I of Schedule 2 is amended as follows.
(2) At the beginning of sub-paragraph (1) there is inserted “Subject to sub-paragraph (1A)”.
(3) After sub-paragraph (1) there is inserted—
“(1A) For the purposes of this Schedule, a person’s holding of shares, or possession of voting power, in a body corporate shall be disregarded if, or to the extent that—
(a) he holds the shares concerned—
(i) as a nominee,
(ii) as a custodian (whether under a trust or by a contract), or
(iii) under an arrangement pursuant to which he has issued, or is to issue, depositary receipts, as defined by section 220(1) of the Companies Act 1985, in respect of the shares concerned, and
(b) he is not entitled to exercise or control the exercise of voting rights in respect of the shares concerned.
(1B) For the purposes of sub-paragraph (1A)(b)—
(a) a person is not entitled to exercise or control the exercise of voting rights in respect of shares if he is bound (whether by contract or otherwise) not to exercise the voting rights, or not to exercise them otherwise than in accordance with the instructions of another, and
(b) voting rights which a person is entitled to exercise or of which he is entitled to control the exercise only in certain circumstances shall be taken into account only when those circumstances have arisen and for as long as they continue to obtain.”
3 For paragraph 3 of Part I of Schedule 2 there is substituted—
“3 For the purposes of this Schedule the following persons shall be treated as connected with a particular person—
(a) a person who controls that person,
(b) an associate of that person or of a person falling within paragraph (a), and
(c) a body which is controlled by that person or by an associate of that person.”
4 After paragraph 3 of Part I of Schedule 2 there is inserted—
“3A (1) In this Schedule “coverage area”—
(a) in relation to any service licensed by the Commission under Part I of this Act or a television multiplex service licensed by them under Part I of the 1996 Act, means the area of the United Kingdom from time to time determined by the Commission as that within which the service is capable of being received at a level satisfying such technical standards as they may from time to time determine,
(b) in relation to any digital programme service which is broadcast by means of a television multiplex service, means the area of the United Kingdom from time to time determined by the Commission as that within which the digital programme service as so broadcast is capable of being received at such a level,
(c) in relation to any service licensed by the Authority under Part III of this Act, means the area of the United Kingdom from time to time determined by the Authority as that within which the service is capable of being received at a level satisfying such technical standards as they may from time to time determine, and
(d) in relation to any local radio multiplex service licensed by the Authority under Part II of the 1996 Act or any local digital sound programme service which is broadcast by means of such a local radio multiplex service, means the area of the United Kingdom from time to time determined by the Authority as that within which the local radio multiplex service is capable of being received at such a level.
(2) Where the Commission or the Authority make any determination under this paragraph, they shall—
(a) publish the determination in such manner as they think fit, and
(b) send a copy of it to such persons holding licences granted by them as appear to them to be affected by the determination.
3B (1) For the purposes of this Schedule—
(a) a person who holds a licence to provide digital programme services shall be taken to provide a digital programme service if, under a contract between him and a person who holds a licence to provide a television multiplex service, that person is obliged to broadcast the digital programme service by means of the television multiplex service;
(b) a person who holds a licence to provide national digital sound programme services shall be taken to provide a national digital sound programme service if, under a contract between him and a person who holds a licence to provide a national radio multiplex service, that person is obliged to broadcast the national digital sound programme service by means of the national radio multiplex service;
(c) a person who holds a licence to provide local digital sound programme services shall be taken to provide a local digital sound programme service if, under a contract between him and a person who holds a licence to provide a local radio multiplex service, that person is obliged to broadcast the local digital sound programme service by means of the local radio multiplex service.
(2) For the purposes of this Schedule a person who holds a licence to provide digital programme services, national digital sound programme services or local digital sound programme services shall also be taken to provide a digital programme service, a national digital sound programme service or a local digital sound programme service (as the case may be) if he also holds a relevant multiplex licence and is broadcasting that service under that licence.
(3) In sub-paragraph (2), “relevant multiplex licence” means—
(a) in relation to digital programme services, a licence to provide a television multiplex service,
(b) in relation to national digital sound programme services, a licence to provide a national radio multiplex service, and
(c) in relation to local digital sound programme services, a licence to provide a local radio multiplex service.”
5 In paragraph 4 of Part I of Schedule 2 (affirmative resolution procedure), for “this Schedule” there is substituted “any provision of this Schedule other than paragraph 7 in Part III”.
6 (1) In Part II of Schedule 2, paragraph 1 (general disqualification of non-EEA nationals and bodies having political connections) is amended as follows.
(2) In sub-paragraph (1), after paragraph (h) there is inserted—
“(hh) a body corporate which is controlled by a body corporate falling within paragraph (h);”.
(3) In sub-paragraph (2), the “or” at the end of paragraph (e) is omitted and after paragraph (f) there is inserted—
“(g) a licence to provide a television multiplex service, a national radio multiplex service or a local radio multiplex service,
(h) a licence to provide digital additional services (within the meaning of Part I or II of the 1996 Act),
(i) a licence to provide digital programme services, or
(j) a licence to provide national or local digital sound programme services.”
7 In paragraph 3 of Part II of Schedule 2 (disqualification of publicly-funded bodies for radio service licences), in sub-paragraph (1)(a) for “(other than a local authority)” there is substituted “(other than a local authority, the Welsh Authority or the BBC)”.
8 In paragraph 5 of Part II of Schedule 2 (general disqualification of broadcasting bodies), paragraphs (c) and (d) are omitted.
9 After paragraph 5 of Part II of Schedule 2 there is inserted—
5A (1) A BBC company, a Channel 4 company or an S4C company is a disqualified person in relation to—
(a) any licence granted by the Commission to provide regional or national Channel 3 services or Channel 5, and
(b) any licence granted by the Commission to provide a local delivery service.
(2) A BBC company is also a disqualified person in relation to any licence granted by the Authority to provide a national, local or restricted service within the meaning of Part III of this Act.
(3) The Secretary of State may by order provide that sub-paragraph (1)(b) shall not have effect in relation to any local delivery service of a description specified in the order.”
10 For Part III of Schedule 2 there is substituted—
1 (1) In this Part of this Schedule “relevant services” means any such services as are mentioned in sub-paragraphs (2) and (3) and, for the purposes of this Part, relevant services shall (subject to paragraph 9) be divided into the seventeen categories specified in those sub-paragraphs.
(2) In the case of services licensed by the Commission, the categories are—
(a) regional and national Channel 3 services and Channel 5;
(b) restricted services (within the meaning of Part I of this Act);
(c) domestic satellite services;
(d) non-domestic satellite services;
(e) licensable programme services;
(f) additional services (within the meaning of Part I of this Act);
(g) television multiplex services;
(h) digital programme services; and
(i) digital additional services (within the meaning of Part I of the 1996 Act).
(3) In the case of services licensed by the Authority, the categories are—
(a) national radio services;
(b) local radio services;
(c) satellite radio services;
(d) licensable sound programme services;
(e) additional services (within the meaning of Part III of this Act);
(f) national or local radio multiplex services;
(g) national or local digital sound programme services; and
(h) digital additional services (within the meaning of Part II of the 1996 Act).
(4) References in this Part to national, local, restricted or satellite radio services are references to national, local, restricted or satellite services within the meaning of Part III of this Act.
2 (1) No one person may, at any time when his audience time in respect of the period of twelve months ending with the last day of the preceding calendar month exceeds 15 per cent. of total audience time in respect of that period—
(a) hold two or more licences to provide relevant services falling within one or more of the categories specified in paragraph 1(2)(a), (c), (d), (e) or (h),
(b) be a participant with a qualifying interest in two or more bodies corporate each of which holds a licence, or two or more licences, to provide services falling within one or more of those categories,
(c) hold any licence to provide a relevant service falling within any of those categories and be a participant with a qualifying interest in any body corporate which holds such a licence or two or more such licences,
(d) provide a foreign satellite service and either hold any licence to provide a relevant service falling within any of those categories or be a participant with a qualifying interest in a body corporate which holds such a licence or two or more such licences, or
(e) hold a licence to provide relevant services falling within the category specified in paragraph 1(2)(h) and provide two or more such services.
(2) For the purposes of sub-paragraph (1) a person’s audience time at any time (“the relevant time”) in respect of any period is the aggregate of—
(a) the audience time attributable in respect of that period to each relevant service falling within any of the categories specified in paragraph 1(2)(a), (c), (d), (e) or (h) provided under a licence held by him at the relevant time,
(b) one half of the audience time attributable in respect of that period to any relevant service falling within any of the categories specified in paragraph 1(2)(a), (c), (d), (e) or (h) provided under a licence held by a body corporate which he does not control, but in which he is at the relevant time a participant with a qualifying interest, and
(c) the audience time attributable in respect of that period to any foreign satellite service provided by him at the relevant time.
(3) In this paragraph “foreign satellite service” means any service (other than a non-domestic satellite service) which consists in the transmission of television programmes by satellite, is provided on a frequency other than one allocated to the United Kingdom for broadcasting by satellite and either—
(a) appears to the Commission to be intended for general reception in the United Kingdom (whether or not it appears to them to be also intended for general reception elsewhere), or
(b) is (to any extent) relayed by a local delivery service.
(4) References in this paragraph—
(a) to the audience time attributable to any service in respect of any period, or
(b) to total audience time in respect of any period,
shall be construed in accordance with paragraph 3.
(5) In this paragraph “qualifying interest” means an interest of more than 20 per cent.
(6) The Secretary of State may by order amend sub-paragraph (5)—
(a) by substituting a different percentage for any percentage for the time being specified there, and
(b) so as to specify different percentages in relation to licences to provide different services.
(7) The Secretary of State may by order amend sub-paragraphs (1)(a), (2)(a) and (b) by adding a reference to relevant services falling within the category specified in paragraph 1(2)(b).
3 (1) For the purposes of paragraph 2—
(a) the audience time attributable to a service in respect of any period is an estimate by the Commission of the number of hours that would be produced by—
(i) ascertaining, in relation to every person who in that period watched any programme included in that service, the total amount of time he spent in that period watching programmes so included, and
(ii) adding together all the amounts of time so ascertained, and
(b) total audience time in respect of any period is the total of all the audience times attributable to services specified in sub-paragraph (2) in respect of that period.
(2) The services referred to in sub-paragraph (1)(b) are—
(a) every television programme service capable of being received in the British Islands, and
(b) every other service which consists wholly or mainly in the broadcasting, or transmission by satellite, from a place outside the British Islands of television programmes which are capable of being received in the British Islands.
(3) For the purposes of this paragraph the Commission may disregard—
(a) watching in such circumstances, or by persons of such description, as the Commission may from time to time determine,
(b) periods of watching whose duration does not exceed such length of time as they may so determine, and
(c) the watching of recordings of television programmes to such extent as they may so determine.
(4) Any estimate required for the purposes of this paragraph may be made by the Commission in such manner, or by reference to such surveys conducted or statistics prepared by any one or more other persons, as they think fit.
(5) Any determination made by the Commission under sub-paragraph (4) shall be published by them in such manner as they think fit.
(6) In this paragraph—
(a) “programme” includes part of a programme, and
(b) references to watching a programme do not include references to watching it outside the British Islands.
(7) If it appears to the Secretary of State that there has been a significant change in the audience measurement practices prevailing in the television industry, the Secretary of State may, after consulting the Commission, make such amendments of sub-paragraphs (1), (3) and (6) as he considers appropriate for the purpose of taking account of that change.
4 (1) No one person may at any time hold a licence to provide a national Channel 3 service and a licence to provide Channel 5.
(2) A person who holds a licence to provide a regional Channel 3 service for a particular area may not also hold any other licence to provide a regional Channel 3 service for that area.
5 (1) No one person may at any time hold more than three licences to provide television multiplex services.
(2) For the purposes of sub-paragraph (1), a person who is a participant with more than a 20 per cent. interest in a body corporate which holds a licence to provide a television multiplex service but does not control that body shall be treated as holding the licence held by that body.
(3) No one person may at any time, in relation to each of five or more licences to provide television multiplex services, be either the holder of the licence or a participant with more than a 10 per cent. interest in a body corporate which holds the licence.
(4) In relation to any person who, under any arrangement with the BBC, provides a television multiplex service for the BBC (on a frequency which is not assigned to the Commission under section 6(1) of the 1996 Act)—
(a) sub-paragraph (1) shall have effect as if the reference to three licences were a reference to two licences, and
(b) sub-paragraph (3) shall have effect as if the reference to five licences were a reference to four licences.
(5) The Secretary of State may by order—
(a) amend sub-paragraphs (1) to (4) by substituting a different numerical limit or percentage for any numerical limit or percentage for the time being specified there,
(b) designate any television multiplex service as a regional multiplex service for the purposes of this sub-paragraph, and
(c) prescribe restrictions on the holding by any one person of two or more licences to provide regional multiplex services whose coverage areas are to a significant extent the same.
(6) The Secretary of State shall not designate any television multiplex service as a regional television multiplex service for the purposes of sub-paragraph (5) unless less than half of the population of the United Kingdom is resident within the proposed coverage area of the service.
6 (1) The Secretary of State may by order prescribe restrictions on the holding, by a person who is providing a digital programme service by means of a television multiplex service designated by order under paragraph 5(5)(b) as a regional multiplex service, of a licence to provide any service specified in sub-paragraph (2) whose coverage area is to a significant extent the same as that of the digital programme service.
(2) The services referred to in sub-paragraph (1) are—
(a) a regional Channel 3 service,
(b) a local radio service, and
(c) a local radio multiplex service.
(3) The Secretary of State may also by order prescribe restrictions on the provision by any one person at any time of both—
(a) a digital programme service by means of a television multiplex service which is designated by order under paragraph 5(5)(b) as a regional multiplex service, and
(b) a digital sound programme service whose coverage area is to a significant extent the same as that of the digital programme service.
7 (1) No person holding a licence to provide digital programme services may, at any time before such day as the Secretary of State may by order appoint for the purposes of this paragraph, provide digital programme services by means of two or more television multiplex services if the number of points attributable to those digital programme services (calculated in accordance with this paragraph) exceeds the permitted maximum.
(2) Subject to sub-paragraphs (3) to (5), the number of points attributable to any digital programme service is two.
(3) Where—
(a) the population within the coverage area of a digital programme service is less than half of the population within the coverage area of the television multiplex service by means of which it is provided, or
(b) a digital programme service is provided by means of a television multiplex service designated by the Secretary of State by order under paragraph 5(5)(b) as a regional multiplex service, or
(c) average weekly air time in relation to a digital programme service is at least 12 hours but less than 50 hours, or
(d) in the case of a digital programme service which was first provided after the beginning of the relevant period, the applicant has notified the Commission of his intention to provide a service in relation to which average weekly air time will be at least 12 hours but less than 50 hours,
the number of points attributable to that digital programme service is one.
(4) Subject to sub-paragraph (5), where—
(a) average weekly air time in relation to a digital programme service is less than 12 hours, or
(b) in the case of a digital programme service which was first provided after the beginning of the relevant period, the applicant has notified the Commission of his intention to provide a service in relation to which average weekly air time will be less than 12 hours,
no points are attributable to that digital programme service.
(5) Where the average weekly air time in relation to each of two or more digital programme services (“the relevant services”) provided by any one holder of a licence to provide digital programme services is less than 12 hours, the relevant services shall be treated for the purposes of this paragraph as if they were one service with an average weekly air time equal to the aggregate of the average weekly air times in relation to the relevant services.
(6) For the purposes of sub-paragraphs (3) to (5), as they have effect in relation to the operation of sub-paragraph (1) at any time—
(a) “the relevant period” means the period of 13 weeks ending with the last week falling wholly within the previous calendar month, and
(b) “average weekly air time”, in relation to a digital programme service, means the average number of hours per week for which the service has been broadcast during the relevant period;
and in this sub-paragraph “week” means a week ending with Saturday.
(7) The permitted maximum shall be determined by reference to the total number of points attributable to all digital programme services being provided by the holders of licences to provide such services, as follows—
(a) where the total number of points is not more than 10, the permitted maximum is 2,
(b) where the total number of points is more than 10 but less than 24, the permitted maximum is 4, and
(c) where the total number of points is 24 or more, the permitted maximum is one quarter of that total.
(8) For the purposes of this paragraph a person who holds a licence to provide digital programme services and is a participant with more than a 20 per cent. interest in a body corporate which also holds such a licence, but who does not control that body, shall be taken to provide any digital programme services provided by that body.
(9) The Secretary of State may by order amend this paragraph—
(a) by altering the number of points for the time being attributable to digital programme services falling within sub-paragraph (2), (3) or (4),
(b) by substituting a different number of hours for the number for the time being specified in sub-paragraph (3), (4) or (5),
(c) by substituting different numbers for any numbers for the time being specified in sub-paragraph (7), and
(d) by substituting a different percentage for the percentage for the time being specified in sub-paragraph (8).
(10) An order under this paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Broadcasting Act 1996