Office of Public Sector Information
PART 3 continued CHAPTER 4 continued
(4) OFCOM shall have power to give directions to the provider to do one or both of the following—
(a) to revise the provider’s latest statement of programme policy, or statement of service policy, in accordance with the directions; and
(b) to take such steps for remedying the provider’s failure as OFCOM may specify in the direction as necessary for that purpose.
(5) A direction given under this section must set out—
(a) a reasonable timetable for complying with it; and
(b) the factors that will be taken into account by OFCOM in determining—
(i) whether or not a failure of the provider has been remedied; and
(ii) whether or not to exercise their powers under subsection (6).
(6) If OFCOM are satisfied—
(a) that the provider of a public service channel or the public teletext provider has failed to comply with a direction under this section,
(b) that that provider is still failing to fulfil the public service remit for that channel or service or adequately to contribute to the fulfilment of the purposes of public service television broadcasting in the United Kingdom, and
(c) that it would be both reasonable and proportionate to the seriousness of that failure to vary the provider’s licence in accordance with this subsection,
OFCOM may, by notice to the provider, vary that licence so as to replace self-regulation with detailed regulation.
(7) For the purposes of subsection (6) a variation replacing self-regulation with detailed regulation is a variation which—
(a) omits the conditions imposed by virtue of sections 265 to 269; and
(b) replaces those conditions with such specific conditions as OFCOM consider appropriate for securing that the provider—
(i) fulfils the public service remit for his service; and
(ii) makes an adequate contribution towards the fulfilment of the purposes of public service television broadcasting in the United Kingdom.
(8) If, at any time following a variation in accordance with subsection (6) of a provider’s licence, OFCOM consider that detailed regulation is no longer necessary, they may again vary the licence so as, with effect from such time as they may determine—
(a) to provide for the conditions required by virtue of sections 265 to 269 again to be included in the regulatory regime for the service provided by that provider; and
(b) to remove or modify some or all of the specific conditions inserted under that subsection.
(9) Before giving a direction under this section to a provider or exercising their power under this section to vary a provider’s licence, OFCOM must consult that provider.
(10) In accordance with section 265(5), the reference in subsection (1) to a failure to fulfil the public service remit for the public teletext service includes a failure to fulfil that remit as respects only one of the services comprised in that service.
(1) The Secretary of State may by order modify any one or more of the following—
(a) the public service remit for any licensed public service channel or for the public teletext service;
(b) the purposes of public service television broadcasting in the United Kingdom (within the meaning given by subsection (4) of section 264);
(c) the matters to which OFCOM are to have regard under subsections (5) and (6) of that section.
(2) The Secretary of State is not to make an order under this section except where—
(a) OFCOM have made a recommendation for the making of such an order in their most recent report under section 229 or 264; or
(b) subsection (3) applies to the order.
(3) This subsection applies to an order if—
(a) it is made by the Secretary of State less than twelve months after the date on which he has received a report under section 229;
(b) he has considered that report; and
(c) he is satisfied that the making of the order is required, notwithstanding the absence of a recommendation by OFCOM, by circumstances or other matters which are dealt with in that report or which (in his opinion) should have been.
(4) Before including a recommendation for the making of an order under this section in a report under section 229 or 264, OFCOM must consult—
(a) members of the public in the United Kingdom;
(b) such public service broadcasters as they consider are likely to be affected if the Secretary of State gives effect to the recommendation they are proposing to make; and
(c) such of the other persons providing television and radio services as OFCOM consider appropriate.
(5) Before making an order under this section, the Secretary of State must consult the persons mentioned in subsection (6) about its terms (even if the order is the one recommended by OFCOM).
(6) Those persons are—
(a) OFCOM;
(b) such public service broadcasters as they consider are likely to be affected by the order; and
(c) such of the other persons providing television and radio services as he considers appropriate.
(7) 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.
(8) In this section “public service broadcaster” means any of the persons who are public service broadcasters for the purposes of section 264.
(1) The regulatory regime for—
(a) every licensed public service channel,
(b) the public teletext service, and
(c) every licensed television service added by order under section 64 to the list of must-carry services,
includes the conditions that OFCOM consider appropriate for securing the three objectives set out in this section (so far as they are not secured by provision made under section 243).
(2) The first objective is that the channel or other service, so far as it is provided in digital form, is at all times offered as available (subject to the need to agree terms) to be broadcast or distributed by means of every appropriate network.
(3) The second objective is that the person providing the channel or other service does his best to secure that arrangements are entered into, and kept in force, that ensure—
(a) that the channel or other service, so far as it is provided in digital form, is broadcast or distributed on appropriate networks; and
(b) that the broadcasting and distribution of the channel or other service, in accordance with those arrangements, result in its being available for reception, by means of appropriate networks, by as many members of its intended audience as practicable.
(4) The third objective is that the arrangements entered into and kept in force for the purpose of securing the second objective prohibit the imposition, for or in connection with the provision of an appropriate network, of any charge that is attributable (whether directly or indirectly) to the conferring of an entitlement to receive the channel or other service in question in an intelligible form by means of that network.
(5) The three objectives apply only in relation to times when the channel or other service in its digital form is included in the list of must-carry services in section 64.
(6) Conditions imposed under this section in relation to a channel or other service must, to such extent as OFCOM consider appropriate—
(a) require arrangements made or kept in force for the purpose of securing the second objective to apply in the case of every service which is an ancillary service by reference to the channel or other service in question as they apply to the channel or other service itself; and
(b) provide for the channel or other service to which the conditions apply to be treated, in relation to particular appropriate networks, as constituting such services comprised in or provided with that channel or other service as may be determined by OFCOM.
(7) In this section—
“appropriate network” means (subject to subsection (8)) an electronic communications network by means of which public electronic communications services are provided that are used by a significant number of end-users as their principal means of receiving television programmes;
“intended audience”, in relation to a channel or other service, means—
if the channel or other service is one provided only for a particular area or locality of the United Kingdom, members of the public in that area or locality;
if the channel or other service is one provided for members of a particular community, members of that community; and
in any other case, members of the public in the United Kingdom;
“licensed television service” means a service falling to be licensed under Part 1 of the 1990 Act or Part 1 of the 1996 Act.
(8) For the purposes of this section an electronic communications network is not an appropriate network in relation to so much of a channel or other service as is provided only for a particular area or locality of the United Kingdom unless it is a network by means of which electronic communications services are provided to persons in that area or locality
(9) In subsection (7) “public electronic communications service” and “end-user” each has the same meaning as in Part 2.
(10) An order under section 411 must not appoint a day for provisions of this section to come into force that falls less than six months after the day on which the order is made.
(1) The regulatory regime for—
(a) every licensed public service channel,
(b) the public teletext service, and
(c) every other licensed television service specified for the purposes of this section in an order made by the Secretary of State,
includes the conditions that OFCOM consider appropriate for securing the three objectives set out in this section (so far as they are not secured by conditions imposed under section 272).
(2) The first objective is that the channel or other service, so far as it is provided in digital form, is at all times offered as available (subject to the need to agree terms) to be broadcast by means of every satellite television service that is available for reception by members of the public in the whole or a part of the United Kingdom.
(3) The second objective is that the person providing the channel or other service does his best to secure that arrangements are entered into, and kept in force, that ensure—
(a) that the channel or other service, so far as it is provided in digital form, is broadcast by means of satellite television services that are broadcast so as to be available for reception by members of the public in the United Kingdom; and
(b) that the broadcasting, in accordance with those arrangements, of the channel or other service by means of those satellite television services results in its being available for reception in an intelligible form and by means of those services by as many members of its intended audience as practicable.
(4) The third objective is that the arrangements entered into and kept in force for the purpose of securing the second objective prohibit the imposition, for or in connection with the provision of a satellite television service, of any charge that is attributable (whether directly or indirectly) to the conferring of an entitlement to receive the channel or other service in question in an intelligible form by means of that service.
(5) The three objectives apply only in relation to a time when the channel or service is included, in its digital form, in the list of services that are must-provide services for the purposes of section 274.
(6) Conditions imposed under this section in relation to a channel or other service must, to such extent as OFCOM consider appropriate—
(a) require arrangements made or kept in force for the purpose of securing the second objective to apply in the case of every service which is an ancillary service by reference to the channel or other service in question as they apply to the channel or other service itself; and
(b) provide for the channel or other service to which the conditions apply to be treated, in relation to particular satellite television services, as constituting such services comprised in or provided with the channel or other service as may be determined by OFCOM.
(7) In this section—
“intended audience”, in relation to a channel or other service, means—
if the channel or other service is one provided only for a particular area or locality of the United Kingdom, members of the public in that area or locality;
if the channel or other service is one provided for members of a particular community, members of that community; and
in any other case, members of the public in the United Kingdom;
“licensed television service” means a service falling to be licensed under Part 1 of the 1990 Act or Part 1 of the 1996 Act; and
“satellite television service” means a service which—
consists in or involves the broadcasting of television programme services from a satellite; and
is used by a significant number of the persons by whom the broadcasts are received in an intelligible form as their principal means of receiving television programmes.
(8) An order under section 411 must not appoint a day for provisions of this section to come into force that falls less than six months after the day on which the order is made.
(1) The regulatory regime for—
(a) every licensed public service channel,
(b) the public teletext service, and
(c) every licensed television service added by order under section 275 to the list of must-provide services,
includes the conditions that OFCOM consider appropriate for securing that arrangements satisfying the requirements of this section are entered into and maintained by all the persons who provide must-provide services.
(2) The conditions imposed on a person under this section may include the conditions that OFCOM consider appropriate for securing, in a case where—
(a) the persons providing must-provide services fail to enter into or maintain arrangements satisfying the requirements of this section, and
(b) OFCOM make and impose arrangements of their own instead,
that the person bound by the conditions is required to act in accordance with arrangements imposed by OFCOM.
(3) The arrangements that are to be entered into, or may be imposed, are arrangements that secure—
(a) that a facility for receiving each must-provide service is made available to every member of the intended audience for that service who is unable, without the use of that facility, to receive it in an intelligible form and free of charge;
(b) that the facility is one under which every such member of the intended audience for a must-provide service is entitled, free of charge, to receive in an intelligible form so much of a service broadcast from a satellite as includes that must-provide service;
(c) that the cost of making that facility available is shared, in appropriate proportions, by all the persons providing must-provide services;
(d) that procedures are established and maintained for dealing with complaints from persons claiming to be entitled, in accordance with the arrangements, to receive a service free of charge, and for resolving disputes about the existence or extent of such an entitlement;
(e) that the availability of those procedures is adequately publicised in accordance with guidance given from time to time by OFCOM.
(4) Arrangements entered into by the providers of must-provide services for the purposes of subsection (3), and any modifications of such arrangements made by the parties to them, are to have effect only if approved by OFCOM.
(5) Before imposing any arrangements for the purposes of a condition under subsection (2), OFCOM must consult all the persons who provide must-provide services.
(6) For the purposes of this section the reception of a service is not free of charge—
(a) if reception of the service is made conditional on the acceptance of an entitlement to receive another service in relation to which a charge is imposed (whether directly or indirectly);
(b) if a charge is made for or in connection with the provision of a service which is an ancillary service in relation to the service in question;
(c) if any consideration is required from the persons to whom it is made available for the provision of assistance for disabled people in respect of programmes included in the service; or
(d) if any other consideration is required to be given, by the person entitled to receive it, for or in connection with its provision or availability.
(7) A service is not prevented from being free of charge by a requirement to pay sums in accordance with regulations under section 365.
(8) The quality of reception that is required before someone is to be treated for the purposes of any conditions imposed under this section as able to receive a service in an intelligible form is to be determined by OFCOM.
(9) References in this section to a facility for receiving a must-provide service include references to—
(a) software to be used in giving effect to the entitlement to receive a must-provide service in an intelligible form, and
(b) apparatus to be used in associating apparatus capable of being used for receiving such a service, or for putting it into an intelligible form, with a person having such an entitlement,
but do not otherwise include references to apparatus.
(10) In this section—
“intended audience”, in relation to a must-provide service, means—
if the service is one provided only for a particular area or locality of the United Kingdom, members of the public in that area or locality;
if the service is one provided for members of a particular community, members of that community; and
in any other case, members of the public in the United Kingdom;
“licensed television service” means a service falling to be licensed under Part 1 of the 1990 Act or Part 1 of the 1996 Act;
“must-provide service” means a service for the time being included in the list of must-provide services in section 275.
(11) An order under section 411 must not appoint a day for provisions of this section to come into force that falls less than six months after the day on which the order is made.
(1) For the purposes of section 274 the list of must-provide services is as follows—
(a) every service of television programmes provided by the BBC so far as it is provided in digital form and is a service in relation to which OFCOM have functions;
(b) the Channel 3 services so far as provided in digital form;
(c) Channel 4 so far as provided in digital form;
(d) Channel 5 so far as provided in digital form;
(e) S4C Digital;
(f) the digital public teletext service.
(2) The Secretary of State may by order modify the list of must-provide services in subsection (1).
(3) In determining whether it is appropriate, by an order under subsection (2), to add a service to the list of must-provide services or to remove a service from that list, the Secretary of State must have regard, in particular, to—
(a) the public benefit to be secured by the addition of the service to the list, or by its retention in the list;
(b) the likely effect of the proposed modification as respects the costs to be borne, under arrangements entered into or imposed under section 274, by the persons who, after the coming into force of the modification, would have to be parties to those arrangements; and
(c) the extent to which that effect is proportionate to the benefit mentioned in paragraph (a).
(1) The regulatory regime for every Channel 3 service and for Channel 4 includes the conditions that OFCOM consider appropriate for securing that the provider of the service or channel grants access to the facilities mentioned in subsection (2)—
(a) to the public teletext provider; and
(b) to any person authorised by virtue of section 220 to provide the whole or a part of the public teletext service on his behalf.
(2) Those facilities are the facilities that are reasonably required by the public teletext provider or the authorised person for the purposes of, or in connection with, the provision of the public teletext service.
(3) A licence holder granting access to facilities in pursuance of a condition imposed under this section may require the public teletext provider or authorised person to pay a reasonable charge in respect of the facilities.
(4) In the event of a dispute, the amount of the charge is to be determined by OFCOM.
(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing that, in each year, not less than 25 per cent. of the total amount of time allocated to the broadcasting of qualifying programmes included in the channel is allocated to the broadcasting of a range and diversity of independent productions.
(2) In this section—
(a) a reference to qualifying programmes is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be qualifying programmes for the purposes of this section;
(b) a reference to independent productions is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be independent productions for the purposes of this section; and
(c) a reference to a range of independent productions is a reference to a range of such productions in terms of cost of acquisition as well as in terms of the types of programme involved.
(3) The Secretary of State may by order amend subsection (1) by substituting a different percentage for the percentage for the time being specified in that subsection.
(4) The Secretary of State may also by order provide for the regulatory regime for every licensed public service channel to include conditions falling within subsection (5), either instead of or as well as those falling within subsection (1).
(5) The conditions falling within this subsection are those that OFCOM consider appropriate for securing that, in each year, not less than the percentage specified in the order of the programming budget for that year for that channel is applied in the acquisition of independent productions.
(6) The power to make an order under subsection (4) includes power to provide that conditions that have previously ceased under such an order to be included in the regulatory regime for every licensed public service channel are again so included, in addition to or instead of the conditions already so included (apart from the exercise of that power) by virtue of this section.
(7) The Secretary of State is not to make an order for the regulatory regime of every licensed public service channel to include or exclude conditions falling within subsection (1) or conditions falling within subsection (5) unless—
(a) OFCOM have made a recommendation to him for those conditions to be included or excluded; and
(b) the order gives effect to that recommendation.
(8) The regulatory regime for every licensed public service channel also includes a condition requiring the provider of the channel to comply with directions given to him by OFCOM for the purpose of—
(a) carrying forward to one or more subsequent years determined in accordance with the direction any shortfall for any year in his compliance with the requirements of conditions imposed by virtue of subsection (1) or (4); and
(b) thereby increasing the percentage applicable for the purposes of those conditions to the subsequent year or years.
(9) For the purposes of conditions imposed by virtue of this section—
(a) the amount of the programming budget for a licensed public service channel for a year, and
(b) the means of determining the amount of that budget that is applied for any purpose,
are to be computed in accordance with such provision as may be set out in an order made by the Secretary of State, or as may be determined by OFCOM in accordance with such an order.
(10) The powers of the Secretary of State to make orders under this section do not include—
(a) power to specify different percentages for the purposes of subsection (1), or of a condition falling within subsection (5), for different regional Channel 3 services or for different national Channel 3 services; or
(b) power to make different provision for different licensed public service channels as to whether conditions falling within subsection (1) or conditions falling within subsection (5), or both, are included in the regulatory regimes for those services.
(11) Before making an order under this section the Secretary of State must consult OFCOM, the BBC and the Welsh Authority.
(12) 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.
(13) In this section—
“acquisition”, in relation to a programme, includes commissioning and the acquisition of a right to include it in a service or to have it broadcast;
“programme” does not include an advertisement; and
“programming budget” means the budget for the production and acquisition of qualifying programmes.
(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing—
(a) that the time allocated, in each year, to the broadcasting of original productions included in that channel is no less than what appears to them to be an appropriate proportion of the total amount of time allocated to the broadcasting of all the programmes included in the channel; and
(b) that the time allocated to the broadcasting of original productions is split in what appears to them to be an appropriate manner between peak viewing times and other times.
(2) The proportion determined by OFCOM for the purposes of subsection (1)—
(a) must, in the case of each licensed public service channel, be such proportion as OFCOM consider appropriate for ensuring that the channel is consistently of a high quality; and
(b) may, for the purposes of paragraph (b) of that subsection, be expressed as the cumulative effect of two different minimum proportions, one applying to peak viewing times and the other to other times.
(3) A condition contained in a licence by virtue of this section may provide—
(a) that specified descriptions of programmes are to be excluded in determining the programmes a proportion of which is to consist of original productions;
(b) that, in determining for the purposes of the condition whether a programme is of a description of programmes excluded by virtue of paragraph (a), regard is to be had to any guidance prepared and published, and from to time revised, by OFCOM.
(4) Before imposing a condition under this section, OFCOM must consult the person on whom it is to be imposed.
(5) The requirement to consult is satisfied, in the case of the imposition of a condition by way of a variation of a licence, by compliance with section 3(4)(b) of the 1990 Act (obligation to give opportunity to make representations about variation).
(6) References in this section, in relation to a licensed public service channel, to original productions are references to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be original productions for the purposes of this section.
(7) The power to specify descriptions of programmes by order under subsection (6) includes power to confer such discretions on OFCOM as the Secretary of State thinks fit.
(8) Before making an order under this section the Secretary of State must consult OFCOM, the BBC and the Welsh Authority.
(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) In this section—
“peak viewing time”, in relation to a licensed public service channel, means a time that appears to OFCOM to be, or to be likely to be, a peak viewing time for that channel; and
“programme” does not include an advertisement.
(11) Before determining for the purposes of this section what constitutes a peak viewing time for a channel, OFCOM must consult the provider of the channel.
(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing—
(a) that the programmes included in the channel include news programmes and current affairs programmes;
(b) that the news programmes and current affairs programmes included in the service are of high quality and deal with both national and international matters; and
(c) that the news programmes so included are broadcast for viewing at intervals throughout the period for which the channel is provided.
(2) That regime also includes the conditions that OFCOM consider appropriate for securing that, in each year—
(a) the time allocated to the broadcasting of news programmes included in the service, and
(b) the time allocated to the broadcasting of current affairs programmes so included,
each constitutes no less than what appears to OFCOM to be an appropriate proportion of the time allocated to the broadcasting of all the programmes included in the channel.
(3) It further includes the conditions that OFCOM consider appropriate for securing that the time allocated—
(a) to the broadcasting of news programmes included in the service, and
(b) to the broadcasting of current affairs programmes so included,
is, in each case, split in what appears to OFCOM to be an appropriate manner between peak viewing times and other times.
Communications Act 2003