Office of Public Sector Information
PART 3 continued CHAPTER 2 continued
(1) The Secretary of State may by order modify any of the provisions of section 232 or 233 if it appears to him appropriate to do so having regard to any one or more of the following—
(a) the protection which, taking account of the means by which the programmes and services are received or may be accessed, is expected by members of the public as respects the contents of television programmes;
(b) the extent to which members of the public are able, before television programmes are watched or accessed, to make use of facilities for exercising control, by reference to the contents of the programmes, over what is watched or accessed;
(c) the practicability of applying different levels of regulation in relation to different services;
(d) the financial impact for providers of particular services of any modification of the provisions of that section; and
(e) technological developments that have occurred or are likely to occur.
(2) The Secretary of State may also by order provide, in cases where it otherwise appears to him appropriate to do so, that a description of service specified in the order is not to be treated as a television licensable content service for the purposes of the provisions of this Act that are so specified.
(3) 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.
(1) The licence that is required for the purposes of section 13 of the 1990 Act in respect of a television licensable content service is a licence granted under Part 1 of that Act on an application complying with this section.
(2) An application for a licence to provide a television licensable content service—
(a) must be made in such manner,
(b) must contain such information about the applicant, his business and the service he proposes to provide, and
(c) must be accompanied by such fee (if any),
as OFCOM may determine.
(3) Where an application is made to OFCOM in accordance with subsection (2) for a licence to provide a television licensable content service, OFCOM are entitled to refuse the application only if—
(a) they are required to do so by section 3(3) of the 1990 Act (licences to be held only by fit and proper persons);
(b) they are required to do so by section 5 of the 1990 Act (restrictions on the holding of licences); or
(c) they are satisfied that, if the application were to be granted, the provision of the service would be likely to involve contraventions of—
(i) standards set under section 319 of this Act; or
(ii) the provisions of a code of practice in force under Part 5 of the 1996 Act (fairness).
(4) The provision of more than one television licensable content service shall require a separate licence under Part 1 of the 1990 Act to be granted and held in respect of each service.
(5) A single licence to provide a television licensable content service may authorise the provision of a service which consists (to any extent) of different programmes to be broadcast simultaneously, or virtually so.
(6) A licence to provide a television licensable content service shall continue in force until such time as it is surrendered or is revoked in accordance with any of the provisions of this Chapter or of the 1990 Act.
(1) This section applies if OFCOM are satisfied—
(a) that the holder of a licence to provide a television licensable content service has contravened a condition of the licence; and
(b) that the contravention can be appropriately remedied by the inclusion in the licensed service of a correction or a statement of findings (or both).
(2) OFCOM may direct the licence holder to include a correction or a statement of findings (or both) in the licensed service.
(3) A direction may require the correction or statement of findings to be in such form, and to be included in programmes at such time or times, as OFCOM may determine.
(4) OFCOM are not to give a person a direction under this section unless they have given him a reasonable opportunity of making representations to them about the matters appearing to them to provide grounds for the giving of the direction.
(5) Where the holder of a licence includes a correction or a statement of findings in the licensed service in pursuance of a direction under this section, he may announce that he is doing so in pursuance of such a direction.
(6) If OFCOM are satisfied that the inclusion of a programme in a television licensable content service involved a contravention of a condition of the licence to provide that service, they may direct the holder of the licence not to include that programme in that service on any future occasion.
(7) Where OFCOM—
(a) give a direction to a BBC company under subsection (2), or
(b) receive representations from a BBC company by virtue of subsection (4),
they must send a copy of the direction or representations to the Secretary of State.
(8) For the purposes of this section a statement of findings, in relation to a case in which OFCOM are satisfied that the holder of a licence has contravened the conditions of his licence, is a statement of OFCOM’s findings in relation to that contravention.
(1) If OFCOM are satisfied that the holder of a licence to provide a television licensable content service—
(a) has contravened a condition of the licence, or
(b) has failed to comply with a direction given by OFCOM under or by virtue of a provision of this Part, Part 1 of the 1990 Act or Part 5 of the 1996 Act,
they may serve on him a notice requiring him to pay them, within a specified period, a specified penalty.
(2) The amount of the penalty under this section must not exceed the maximum penalty given by subsection (3).
(3) The maximum penalty is whichever is the greater of—
(a) £250,000; and
(b) 5 per cent. of the qualifying revenue for the licence holder’s last complete accounting period falling within the period for which his licence has been in force (“the relevant period”).
(4) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (3) is to be construed as referring to 5 per cent of the amount which OFCOM estimate will be the qualifying revenue for that accounting period.
(5) Section 19(2) to (6) of the 1990 Act and Part 1 of Schedule 7 to that Act (calculation of qualifying revenue), with any necessary modifications, are to apply for the purposes of subsection (3) as they apply for the purposes of Part 1 of that Act.
(6) OFCOM are not to serve a notice on a person under subsection (1) unless they have given him a reasonable opportunity of making representations to them about the matters appearing to them to provide grounds for the service of the notice.
(7) Where OFCOM—
(a) serve a notice on a BBC company under subsection (1), or
(b) receive representations from a BBC company by virtue of subsection (6),
they must send a copy of the notice or representations to the Secretary of State.
(8) An exercise by OFCOM of their powers under subsection (1) does not preclude any exercise by them of their powers under section 236 in respect of the same contravention.
(9) The Secretary of State may by order substitute a different sum for the sum for the time being specified in subsection (3)(a).
(10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(1) OFCOM must serve a notice under subsection (2) on the holder of a licence to provide a television licensable content service if they are satisfied—
(a) that the holder of the licence is in contravention of a condition of the licence or is failing to comply with a direction given by them under or by virtue of any provision of this Part, Part 1 of the 1990 Act or Part 5 of the 1996 Act; and
(b) that the contravention or failure, if not remedied, would justify the revocation of the licence.
(2) A notice under this subsection must—
(a) state that OFCOM are satisfied as mentioned in subsection (1);
(b) specify the respects in which, in their opinion, the licence holder is contravening the condition or failing to comply with the direction; and
(c) state that OFCOM will revoke the licence unless the licence holder takes, within such period as is specified in the notice, such steps to remedy the failure as are so specified.
(3) If, at the end of the period specified in a notice under subsection (2), OFCOM are satisfied—
(a) that the person on whom the notice was served has failed to take the steps specified in it, and
(b) that it is necessary in the public interest to revoke his licence,
they shall serve a notice on him revoking his licence.
(4) If OFCOM are satisfied in the case of a licence to provide a television licensable content service—
(a) that the holder of the licence has ceased to provide the licensed service, and
(b) that it is appropriate for them to do so,
they shall serve a notice on him revoking his licence.
(5) If OFCOM are satisfied—
(a) that the holder of a licence to provide a television licensable content service has provided them, in connection with his application for the licence, with information which was false in a material particular, or
(b) that, in connection with his application for the licence, the holder of such a licence withheld any material information with the intention of causing them to be misled,
they may serve a notice on him revoking his licence.
(6) A notice under this section revoking a licence to provide a television licensable content service takes effect as from the time when it is served on the licence holder.
(7) OFCOM are not to serve a notice on a person under this section unless they have given him a reasonable opportunity of making representations to them about the matters in respect of which it is served.
(8) Where OFCOM—
(a) serve a notice on a BBC company under this section, or
(b) receive representations from a BBC company by virtue of subsection (7),
they must send a copy of the notice or representations to the Secretary of State.
(9) Nothing in this section applies to the revocation of a licence in exercise of the power conferred by section 239.
(1) OFCOM must serve a notice under subsection (2) on the holder of a licence to provide a television licensable content service if they are satisfied—
(a) that the holder of the licence has included in the service one or more programmes containing material likely to encourage or to incite the commission of crime, or to lead to disorder;
(b) that, in doing so, he has contravened conditions contained by virtue of Chapter 4 of this Part in the licence to provide that service; and
(c) that the contravention is such as to justify the revocation of the licence.
(2) A notice under this subsection must—
(a) state that OFCOM are satisfied as mentioned in subsection (1);
(b) specify the respects in which, in their opinion, the licence holder has contravened the condition mentioned in paragraph (b) of that subsection;
(c) state that OFCOM may revoke the licence after the end of the period of twenty-one days beginning with the day on which the notice is served on the licence holder; and
(d) inform the licence holder of his right to make representations to OFCOM within that period about the matters appearing to OFCOM to provide grounds for revoking the licence.
(3) The effect of a notice under subsection (2) shall be to suspend the licence as from the time when the notice is served on the licence holder until either—
(a) the revocation of the licence takes effect; or
(b) OFCOM decide not to revoke the licence.
(4) If, after considering any representations made to them by the licence holder within the period specified for the purposes of subsection (2)(c), OFCOM are satisfied that it is necessary in the public interest to revoke the licence, they shall serve a notice of revocation on the licence holder.
(5) The revocation of a licence by a notice under subsection (4) takes effect from such time as may be specified in the notice.
(6) A notice of revocation under subsection (4) must not specify a time for it to take effect that falls before the end of the period of twenty-eight days beginning with the day on which the notice is served on the licence holder.
(1) The authorisations that are to be capable of being granted on or after the television transfer date by or under a licence under Part 1 of the 1990 Act do not include the authorisation of the provision, as such, of—
(a) any satellite television service (as defined, disregarding its repeal by this Act, in section 43(1) of the 1990 Act); or
(b) any licensable programme service (as defined, disregarding its repeal by this Act, in section 46(1) of that Act).
(2) Subsection (1) does not affect OFCOM’s power, by means of a licence authorising the provision of a service falling within section 211(1), to authorise the provision of so much of any formerly regulated television service as is comprised in the licensed service.
(3) So much of any relevant existing licence as authorises the provision of a service which consists in or includes a television licensable content service—
(a) shall have effect, on and after the television transfer date, as a licence under Part 1 of the 1990 Act authorising the provision of the television licensable content service comprised in the licensed service;
(b) shall so have effect as a licence which, notwithstanding its terms and conditions, is to continue in force until such time as it is surrendered or is revoked in accordance with provisions of this Chapter or of the 1990 Act; and
(c) shall otherwise have effect as a licence on the same terms and conditions as those on which it had effect immediately before the television transfer date.
(4) It shall be the duty of OFCOM to exercise their power under section 3 of the 1990 Act to make such variations of any licence having effect in accordance with subsection (3) of this section as (after complying with subsection (4)(b) of that section) they consider appropriate for the purpose of performing their duty under section 263 of this Act.
(5) In this section—
“formerly regulated television service” means a service mentioned in subsection (1); and
“relevant existing licence”, means any licence which—
was granted by the Independent Television Commission under Part 1 of the 1990 Act before the television transfer date; and
is in force immediately before the television transfer date as a licence authorising the provision of a formerly regulated service.
(1) Subject to the following provisions of this section, references in Part 1 of the 1996 Act to a multiplex service, other than those comprised in express references to a general multiplex service, shall have effect as references to any service (“a television multiplex service”) which—
(a) falls within subsection (2); and
(b) is provided for broadcasting for general reception but otherwise than from a satellite.
(2) A service falls within this subsection if—
(a) it consists in the packaging together of two or more services which include at least one relevant television service and are provided for inclusion together in the service by a combination of the relevant information in digital form; or
(b) it is a service provided with a view to its being a service falling within paragraph (a) but is one in the case of which only one service is for the time being comprised in digital form in what is provided.
(3) The provision, at a time after the commencement of this section, of a television multiplex service the provision of which is not authorised by or under a licence under Part 1 of the 1996 Act is not to be an offence under section 13 of the 1990 Act.
(4) Accordingly, after the commencement of this section, a licence under Part 1 of the 1996 Act shall be required for the provision of a television multiplex service only in so far as it is required for the purposes of a limitation falling within subsection (5) that is contained in a wireless telegraphy licence, or is deemed to be so contained.
(5) A limitation falls within this subsection, in relation to a wireless telegraphy licence, if it provides that the only television multiplex services that are authorised to be broadcast using the station or apparatus to which the licence relates are those that are licensed under Part 1 of the 1996 Act.
(6) Where immediately before the coming into force of this section—
(a) a television multiplex service is licensed under Part 1 of the 1996 Act; and
(b) that service is one broadcast using a station or apparatus the use of which is authorised by a wireless telegraphy licence,
that wireless telegraphy licence shall be deemed to contain a limitation falling within subsection (5).
(7) In any case where a wireless telegraphy licence is deemed by virtue of subsection (6) to contain a limitation falling within subsection (5) and the person providing the television multiplex service in question—
(a) ceases to be licensed under Part 1 of the 1996 Act in respect of that service, or
(b) ceases to exist,
OFCOM may revoke the wireless telegraphy licence.
(8) Subsection (7) is not to be construed as restricting the powers of revocation exercisable apart from this section.
(9) In subsection (2) “relevant television service” means any of the following—
(a) any Channel 3 service in digital form;
(b) Channel 4 in digital form;
(c) Channel 5 in digital form;
(d) S4C Digital;
(e) any digital television programme service;
(f) the digital public teletext service.
(1) In subsection (1) of section 12 of the 1996 Act—
(a) in paragraph (c), (digital programmes services included in multiplex must be provided by a licence holder or EEA broadcaster), after “section 18” there shall be inserted “, by the BBC”;
(b) in paragraph (d), (digital additional services included in multiplex must be provided by a licence holder or EEA broadcaster), after “section 25” there shall be inserted “, by the BBC”;
(c) after that paragraph there shall be inserted—
“(da) that the only digital sound programme services broadcast under the licence are services provided by the holder of a national digital sound programme licence (within the meaning of section 60) or by the BBC;”
(d) in paragraph (e), after “digital programme services” there shall be inserted “, digital sound programme services”;
(e) in paragraph (f), after “digital programme service” there shall be inserted “, a digital sound programme service”; and
(f) for paragraph (h) (conditions as to composition of multiplex service), there shall be substituted—
“(h) that, while the licence is in force, at least the required percentage of the digital capacity on the frequency or frequencies on which the service is broadcast is used, or left available to be used, for the broadcasting of services falling within subsection (1A).”
(2) After that subsection there shall be inserted—
“(1A) The services falling within this subsection are—
(a) qualifying services;
(b) digital programme services licensed under this Part or provided by the BBC;
(c) digital sound programme services provided by the BBC;
(d) programme-related services; and
(e) relevant technical services.”
(3) In subsection (3) of that section—
(a) after the words “digital programme services”, in the first place where they occur, there shall be inserted “or digital sound programme services”; and
(b) for “digital programme services broadcast under the licence” there shall be substituted “so much of what is broadcast under the licence as consists of digital programme services, or of such services together with digital sound programme services,”.
(4) In subsection (4) of that section (interpretation of subsection (1)(h))—
(a) for “(1)(h)” there shall be substituted “(1A)”;
(b) in paragraph (a), for “the qualifying teletext service” there shall be substituted “the digital public teletext service”;
(c) in paragraph (b)(i), after “the 1990 Act)” there shall be inserted “, or in one or more digital sound programme services provided by the BBC,”
(d) in paragraph (c), for “digital programme services” there shall be substituted “services falling within subsection (1A) which are comprised in the multiplex in question”.
(5) After that subsection there shall be inserted—
“(4A) In subsection (1)(h), the reference to the required percentage is a reference to such percentage equal to or more than 90 per cent. as OFCOM—
(a) consider appropriate; and
(b) specify in the condition.”
(6) In subsection (5) of that section (power to change percentage in subsection (1)(h)), for “(1)(h)” there shall be substituted “(4A)”.
(1) The Secretary of State may by order provide, in relation to the matters mentioned in subsection (2)—
(a) for any or all of the provisions of sections 7 to 16 and of sections 18 and 19 of the 1996 Act to have effect with the modifications specified in the order; and
(b) for provision made by the order to have effect in place of any or all of those provisions.
(2) Those matters are—
(a) licences under Part 1 of the 1996 Act, and
(b) the awarding and grant of such licences,
in a case in which the licence is, or is to be, a licence to provide a service for broadcasting on any one or more reserved frequencies.
(3) An order under this section may require OFCOM to include conditions falling within subsection (4) in any Broadcasting Act licence to provide a television multiplex service to be broadcast on a reserved frequency.
(4) Conditions falling within this subsection are conditions that OFCOM consider appropriate for securing that, in consideration for the making by any relevant public service broadcaster of such payments as are from time to time—
(a) agreed between the broadcaster and the holder of the licence to provide the television multiplex service, or
(b) in default of agreement, determined by OFCOM in accordance with the order,
the holder of that licence will use digital capacity reserved in accordance with conditions imposed under section 12 of the 1996 Act or any order under this section for the broadcasting of services provided by that broadcaster.
(5) Subsection (3) is not to be construed as restricting the provision that may be made under subsection (1).
(6) A frequency is a reserved frequency for the purposes of this section if it is one as respects which OFCOM have made a determination, in exercise of their functions under the enactments relating to the management of the radio spectrum, that the frequency should be reserved for the broadcasting of television multiplex services.
(7) In this section “relevant public service broadcaster” means any of the following—
(a) the holder of a licence to provide a Channel 3 service;
(b) C4C;
(c) the holder of a licence to provide Channel 5;
(d) the Welsh Authority;
(e) the public teletext provider.
(1) The Secretary of State may by order provide for—
(a) any of the provisions of this Part (apart from this section and the provisions relating exclusively to sound services), or
(b) any provision of Part 1 of the 1990 Act or of Part 1 of the 1996 Act (regulation of television services),
to have effect, in relation to services of such descriptions as may be set out in an order under this section, with such modifications as he considers necessary or appropriate for services of that description.
(2) The Secretary of State is not to make an order under this section in relation to a description of services except where—
(a) the description is of services to be provided in digital form with a view to their being included in a television multiplex service;
(b) the description is confined to services falling within one or both of subsections (3) and (4); and
(c) the Secretary of State is satisfied that the making of an order under this section in relation to that description of services will make possible, facilitate or encourage the provision of services so falling.
(3) Services fall within this subsection if they are—
(a) intended for reception only at a particular establishment or otherwise on particular premises; or
(b) provided for the purposes only of a particular event.
(4) Services fall within this subsection if the Secretary of State considers that they are services in relation to which all the following conditions are satisfied—
(a) they are intended for reception only within a particular area or locality;
(b) their provision meets, or would meet, the needs of the area or locality where they are received;
(c) their provision is or would be likely to broaden the range of television programmes available for viewing by persons living or working in that area or locality; and
(d) their provision is or would be likely to increase the number and range of the programmes about that area or locality that are available for such viewing, or to increase the number of programmes made in that area or locality that would be so available.
(5) Services shall be taken for the purposes of subsection (4) to meet the needs of an area or locality if, and only if—
(a) their provision brings social or economic benefits to the area or locality, or to different categories of persons living or working in that area or locality; or
(b) they cater for the tastes, interests and needs of some or all of the different descriptions of people living or working in the area or locality (including, in particular, tastes, interests and needs that are of special relevance in the light of the descriptions of people who do so live and work).
(6) In subsections (4) and (5), the references to persons living or working in an area or locality include references to persons undergoing education or training in that area or locality.
(7) An order under this section in relation to a description of services may, in particular, impose prohibitions or limitations on the inclusion of advertisements in services of that description and on the sponsorship of programmes included in the services.
(8) The power, by an order under this section, to make incidental, supplemental or consequential provision in connection with provision authorised by subsection (1) includes power to make incidental, supplemental or consequential provision modifying provisions of the 1990 Act, the 1996 Act or this Act that are not mentioned in that subsection.
(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.
(1) It shall be a function of OFCOM to regulate the following services in accordance with this Act, the 1990 Act and the 1996 Act—
(a) services specified in subsection (2) that are provided from places in the United Kingdom and otherwise than by the BBC;
(b) services so specified that do not fall within paragraph (a) but are provided by a person, other than the BBC, whose principal place of business is in the United Kingdom.
Communications Act 2003