Office of Public Sector Information
PART 3 continued CHAPTER 2 continued
(1) The determination under section 222(4)(b) must comprise—
(a) a determination of the amount which the holder of the renewed licence will be required by the conditions of that licence to pay to OFCOM in respect of the first complete calendar year falling within the renewal period;
(b) a determination of the percentage of qualifying revenue for each accounting period of the licence holder falling within the renewal period which he will be required by those conditions to pay to OFCOM.
(2) The amount determined under subsection (1)(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 (instead of being renewed) to be granted for the period of the renewal on an application made in accordance with Part 1 of Schedule 10.
(3) For the purposes of subsection (1)(b)—
(a) different percentages may be determined for different accounting periods; and
(b) the percentages that may be determined for an accounting period include a nil percentage.
(4) In this section “renewal period”, in relation to a licence, means the period for which the licence is in force by reason of its renewal.
(5) Part 3 of Schedule 10 applies for construing this section as it applies for construing that Schedule.
(1) Subject to any postponement under this section, the date which is the initial expiry date for the purposes of this Part is 31st December 2014.
(2) The Secretary of State may (on one or more occasions) by order postpone the initial expiry date.
(3) The Secretary of State’s power to postpone the initial expiry date—
(a) is to be exercisable before 30th June 2013 only if he has fixed a date after 30th June 2013 as the date for digital switchover; and
(b) is not to be exercisable on or after 30th June 2013 if he has fixed 30th June 2013 or an earlier date as the date for digital switchover.
(4) Where the Secretary of State makes an order under this section at a time after he has fixed a date for digital switchover, the date to which the initial expiry date is postponed must be a date not less than eighteen months after the date for digital switchover.
(5) The Secretary of State must exercise his power to postpone the initial expiry date if it at any time appears to him that that date would otherwise fall within the period of eighteen months immediately following the date fixed for digital switchover.
(6) Where an order under this section extends a licensing period for which a licence has been granted in accordance with section 214 or 219, the 1990 Act and this Part shall have effect (subject to subsection (7)) as if the licence had originally been granted for the extended period.
(7) Where an order under this section extends the period for which a licence is to continue in force—
(a) that order shall not affect the earliest time at which an application for the renewal of that licence may be made in accordance with section 216(2)(a) or 222(2)(a);
(b) as soon as reasonably practicable after making the order, OFCOM must make such modification of any determination made by them in the case of that licence for the purposes of section 216(2)(b) or 222(2)(b) as they consider appropriate in consequence of the extension; and
(c) neither section 216(3)(a) nor section 222(3)(a) applies to the making of that modification.
(8) In this section a reference to the date for digital switchover is a reference to the date fixed by the Secretary of State for the purposes of this section as the date which appears to him, in consequence of directions given by him for the purposes of the conditions of the licences for the relevant public broadcasting services, to be the date after which none of those services will be broadcast to any significant extent in analogue form.
(9) In this section “the relevant public broadcasting service” means any of the following—
(a) the services comprised in Channel 3; and
(b) Channel 5.
(1) The holder of a replacement licence granted under section 215 or 221 may apply to OFCOM, at any time in the first or any subsequent review period, for a review of the financial terms on which that licence is held.
(2) For the purposes of this section the first review period is the period which—
(a) begins four years before the first notional expiry date; and
(b) ends with the day before the day that OFCOM have determined to be the one by which they would need to publish a tender notice if they were proposing to grant a fresh licence to take effect from the first notional expiry date.
(3) For the purposes of this section a subsequent review period in the case of a replacement licence is so much (if any) of the following period as falls before the end of the initial expiry date, namely, the period which—
(a) begins four years before a subsequent notional expiry date; and
(b) ends with the day before the day that OFCOM have determined to be the one by which they would need to publish a tender notice if they were proposing to grant a fresh licence to take effect from that notional expiry date.
(4) A determination for the purposes of subsection (2)(b) or (3)(b) in respect of a replacement licence—
(a) must be made at least one year before the day determined; and
(b) must be notified by OFCOM to the person who, at the time of the determination, holds the licence in question.
(5) No application under this section for a review of the financial terms on which a replacement licence is held is to be made—
(a) at any time when an application under section 226 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.
(6) For the purposes of this section an application for a review under section 226 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—
“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—
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; and
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.
(8) In subsection (7) “existing licence” has the same meaning as in section 215 or (as the case may be) 221.
(1) This section applies where an order is made under section 411 that brings section 272, 273 or 274 (or any two or more of them) into force for the purpose 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 272, 273 or 274 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 411 is the period which—
(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 272, 273 and 274 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 subsection (3)(b), the review period ends with the later or latest of them.
(1) This section applies where an application is made under section 225 or 226 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—
(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 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—
(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 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 include a nil percentage.
(6) In making their determinations on an application under section 226 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 272, 273 or 274 (or any two or more of them) as is brought into 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 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 making under section 225 or 226 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.
(1) As soon as reasonably practicable after making a determination under section 227 on an application under section 225 or 226, OFCOM must give a notification of their determination to the applicant.
(2) The notification must set out—
(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
(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 determined in accordance with section 227(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 225, the date specified in accordance with subsection (2)(d) must not fall before whichever is the earlier of —
(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
(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 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 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 1990 Act;
“licensing period” means—
the period beginning with the commencement of this section and ending with the initial expiry date; or
any subsequent period of ten years beginning with the end of the previous licensing period;
“notional expiry date” means a first or subsequent notional expiry date within the meaning of section 225.
(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.
(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.
(3) Those matters are—
(a) the arrangements that (but for an order under section 230) 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 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 230; or
(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 224 after receiving a report under this section in anticipation of the end of the licensing period that is extended by the order—
(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.
(6) In this section—
“licensing period” means—
the period beginning with the commencement of this section and ending with the initial expiry date; or
any subsequent period of ten years beginning with the end of the previous licensing period;
“relevant licence” means—
a licence to provide a Channel 3 service;
a licence to provide Channel 5; or
the licence to provide the public teletext service.
(1) This section applies where the Secretary of State has received and considered a report submitted to him by OFCOM under section 229.
(2) If—
(a) the report contains a recommendation by OFCOM for the making of an order under this section, or
(b) the Secretary of State considers, notwithstanding the absence of such a recommendation, that it would be appropriate to do so,
he may by order provide that licences for the time being in force that are of the description specified in the order are not to be renewable under section 216 or 222 from the end of the licensing period in which he received the report.
(3) An order under this section preventing the renewal of licences from the end of a licensing period must be made at least eighteen months before the end of that period.
(4) The Secretary of State is not to make an order under this section preventing the renewal of licences from the end of the initial licensing period unless he has fixed a date before the end of that period as the date for digital switchover.
(5) Where the Secretary of State postpones the date for digital switchover after making an order under this section preventing the renewal of licences from the end of the initial licensing period, the order shall have effect only if the date to which digital switchover is postponed falls before the end of that period.
(6) Subsection (5) does not affect the power of the Secretary of State to make another order under this section after postponing the date for digital switchover.
(7) An order under this section with respect to Channel 3 licences must be an order of one of the following descriptions—
(a) an order applying to every licence to provide a Channel 3 service;
(b) an order applying to every licence to provide a national Channel 3 service; or
(c) an order applying to every licence to provide a regional Channel 3 service.
(8) An order under this section does not affect—
(a) the person to whom a licence may be granted on an application made under section 15 of the 1990 Act or under paragraph 3 of Schedule 10 to this Act; or
(b) rights of renewal in respect of licences first granted so as to take effect from the beginning of a licensing period beginning after the making of the order, or from a subsequent time.
(9) No order is to be made containing provision authorised by this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(10) Subsection (8) of section 224 applies for construing references in this section to the date for digital switchover as it applies for the purposes of that section.
(11) In this section—
“initial licensing period” means the licensing period ending with the initial expiry date; and
“licensing period” has the same meaning as in section 229.
(1) On the commencement of this subsection—
(a) Channel 4 shall cease to be licensed under the licence in force for the purposes of section 24(3) of the 1990 Act immediately before the commencement of this subsection; and
(b) a licence granted for those purposes in accordance with the following provisions of this section shall come into force as the licence under which Channel 4 is licensed.
(2) It shall be the duty of OFCOM, as soon as practicable after the television transfer date—
(a) to prepare a draft of a licence under Part 1 of the 1990 Act to replace the licence that is likely to be in force for the purposes of section 24(3) of the 1990 Act when subsection (1) of this section comes into force;
(b) to notify C4C of the terms and conditions of the replacement licence they propose; and
(c) after considering any representations made by C4C, to grant such a replacement licence to C4C so that it takes effect in accordance with paragraph (b) of subsection (1) of this section.
(3) A replacement licence proposed or granted under this section—
(a) must be a licence to provide a service with a view to its being broadcast in digital form; and
(b) must contain such conditions (if any) requiring C4C to ensure that the whole or a part of Channel 4 is also provided for broadcasting in analogue form as OFCOM consider appropriate.
(4) The conditions included in a licence by virtue of subsection (3)(b) must be such as to enable effect to be given to any directions given from time to time by the Secretary of State to OFCOM about the continuance of the provision of services in analogue form.
(5) Where a replacement licence proposed or granted under this section contains a condition falling within subsection (3)(b), it must also contain a condition that—
(a) the programmes (apart from the advertisements) that are included in the service provided in analogue form, and
(b) the times at which they are broadcast,
are to be the same as in the case of, or of the specified part of, the service provided for broadcasting in digital form.
(6) The terms of a replacement licence proposed or granted under this section must provide for it to continue in force until the end of 2014.
(7) But—
(a) such a licence may be renewed, on one or more occasions, for such period as OFCOM may think fit in relation to the occasion in question; and
(b) the provisions of this section (apart from subsections (1), (2) and (6)) are to apply in the case of a licence granted by way of a renewal of a licence granted under this section as they apply in the case of the replacement licence.
(8) The conditions of a replacement licence proposed or granted under this section must include the conditions that OFCOM consider appropriate for the purpose of performing their duty under section 263.
(9) The conditions of such a licence must also include a condition prohibiting the imposition, whether directly or indirectly, of the following—
(a) charges on persons in respect of their reception in the United Kingdom of Channel 4;
(b) charges on persons in respect of their reception in the United Kingdom of any service consisting in the provision of assistance for disabled people in relation to programmes included in Channel 4; and
(c) charges on persons in respect of their reception in the United Kingdom of any service (other than one mentioned in paragraph (b)) which is an ancillary service in relation to so much of Channel 4 as is provided in digital form.
(10) It shall be unlawful to impose a charge in contravention of a condition falling within subsection (9).
(1) In this Part “television licensable content service” means (subject to section 233) any service falling within subsection (2) in so far as it is provided with a view to its availability for reception by members of the public being secured by one or both of the following means—
(a) the broadcasting of the service (whether by the person providing it or by another) from a satellite; or
(b) the distribution of the service (whether by that person or by another) by any means involving the use of an electronic communications network.
(2) A service falls within this subsection if it—
(a) is provided (whether in digital or in analogue form) as a service that is to be made available for reception by members of the public; and
(b) consists of television programmes or electronic programme guides, or both.
(3) Where—
(a) a service consisting of television programmes, an electronic programme guide or both (“the main service”) is provided by a person as a service to be made available for reception by members of the public, and
(b) that person provides the main service with other services or facilities that are ancillary to, or otherwise relate to, the main service and are also provided so as to be so available or in order to make a service so available,
subsection (1) has effect as if the main service and such of the other services or facilities as are relevant ancillary services and are not two-way services constituted a single service falling within subsection (2).
(4) Where a person providing the main service provides it with a facility giving access to another service, the other service shall also be taken for the purposes of this section as provided by that person with the main service only if what is comprised in the other service is something over which that person has general control.
(5) A service is a two-way service for the purposes of this section if it is provided by means of an electronic communications network and an essential feature of the service is that the purposes for which it is provided involve the use of that network, or a part of it, both—
(a) for the transmission of visual images or sounds (or both) by the person providing the service to users of the service; and
(b) for the transmission of visual images or sounds (or both) by those users for reception by the person providing the service or by other users of the service.
(6) In this section—
“electronic programme guide” means a service which consists of—
the listing or promotion, or both the listing and the promotion, of some or all of the programmes included in any one or more programme services the providers of which are or include persons other than the provider of the guide; and
a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide;
“relevant ancillary service”, in relation to the main service, means a service or facility provided or made available by the provider of the main service that consists of or gives access to—
assistance for disabled people in relation to some or all of the programmes included in the main service;
a service (apart from advertising) which is not an electronic programme guide but relates to the promotion or listing of programmes so included; or
any other service (apart from advertising) which is ancillary to one or more programmes so included and relates directly to their contents.
(1) A service is not a television licensable content service to the extent that it is provided with a view to its being broadcast by means of a multiplex service.
(2) A service is not a television licensable content service to the extent that it consists of a service the provision of which is authorised by—
(a) a licence to provide a television broadcasting service;
(b) the licence to provide the public teletext service; or
(c) a licence to provide additional television services.
(3) A service is not a television licensable content service to the extent that it is provided by means of an electronic communications service if—
(a) it forms part only of a service provided by means of that electronic communications service or is one of a number of services access to which is made available by means of a service so provided; and
(b) the service of which it forms part, or by which it may be accessed, is provided for purposes that do not consist wholly or mainly in making available television programmes or radio programmes (or both) for reception by members of the public.
(4) A service is not a television licensable content service if it is a two-way service (within the meaning of section 232).
(5) A service is not a television licensable content service if—
(a) it is distributed by means of an electronic communications network only to persons all of whom are on a single set of premises; and
(b) that network is wholly within those premises and is not connected to an electronic communications network any part of which is outside those premises.
(6) For the purposes of subsection (5)—
(a) a set of premises is a single set of premises if, and only if, the same person is the occupier of all the premises; and
(b) two or more vehicles are capable of constituting a single set of premises if, and only if, they are coupled together.
(7) A service is not a television licensable content service if it is provided for the purpose only of being received by persons who have qualified as users of the service by reason of being—
(a) persons who have a business interest in the programmes included in the service; or
(b) persons who are to receive the programmes for the purpose only of showing them to persons falling within sub-paragraph (a) or to persons all of whom are on the business premises of the person receiving them.
(8) For the purposes of subsection (7) a person has a business interest in programmes if he has an interest in receiving or watching them—
(a) for the purposes of a business carried on by him; or
(b) for the purposes of his employment.
(9) In this section—
“business premises”, in relation to a person, means premises at or from which any business of that person is carried on;
“multiplex service” means a television multiplex service, a radio multiplex service or a general multiplex service;
“premises” includes a vehicle;
“vehicle” includes a vessel, aircraft or hovercraft.
(10) References in this section, in relation to a person, to a business include references to—
(a) any business or other activities carried on by a body of which he is a member and the affairs of which are managed by its members; and
(b) the carrying out of any functions conferred on that person, or on any such body, by or under any enactment.
Communications Act 2003