Office of Public Sector Information
PART 3 continued CHAPTER 4 continued
(2) In subsection (1)—
(a) the 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 that subsection;
(b) the 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 that subsection; and
(c) the 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) Before making an order under this section the Secretary of State must consult OFCOM.
(5) 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.
(6) In this section “programme” does not include an advertisement.
(1) It shall be the duty of OFCOM to draw up, and from time to time to review and revise, a code giving guidance as to the practices to be followed in the provision of electronic programme guides.
(2) The practices required by the code must include the giving, in the manner provided for in the code, of such degree of prominence as OFCOM consider appropriate to—
(a) the listing or promotion, or both the listing and promotion, for members of its intended audience, of the programmes included in each public service channel; and
(b) the facilities, in the case of each such channel, for members of its intended audience to select or access the programmes included in it.
(3) The practices required by the code must also include the incorporation of such features in electronic programme guides as OFCOM consider appropriate for securing that persons with disabilities affecting their sight or hearing or both —
(a) are able, so far as practicable, to make use of such guides for all the same purposes as persons without such disabilities; and
(b) are informed about, and are able to make use of, whatever assistance for disabled people is provided in relation to the programmes listed or promoted.
(4) Subject to subsection (5), in subsection (2) the reference to the public service channels is a reference to any of the following—
(a) any service of television programmes provided by the BBC in digital form so as to be available for reception by members of the public;
(b) any Channel 3 service in digital form;
(c) Channel 4 in digital form;
(d) Channel 5 in digital form;
(e) S4C Digital;
(f) the digital public teletext service.
(5) The Secretary of State may by order—
(a) add any programme service to the services for the time being specified in subsection (4) as public service channels; or
(b) delete a service from that subsection.
(6) Before making an order under subsection (5) the Secretary of State must consult OFCOM.
(7) In this section “intended audience”, in relation to a service of any description, means—
(a) if the service is provided only for a particular area or locality of the United Kingdom, members of the public in that area or locality;
(b) if it is provided for members of a particular community, members of that community; and
(c) in any other case, members of the public in the United Kingdom.
(8) In this section “electronic programme guide” means a service which consists of—
(a) 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
(b) a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide.
(1) The regulatory regime for every service consisting in or including an electronic programme guide includes whatever conditions (if any) OFCOM consider appropriate for securing that the code maintained by them under section 310 is observed in the provision of those services.
(2) In this section “electronic programme guide” has the same meaning as in section 310.
(1) Section 106 of the 1990 Act (requirements as to character and coverage of local and national radio services) shall be amended as follows.
(2) In subsection (1), the words from “except” onwards shall be omitted.
(3) After subsection (1) (duty to ensure character preserved subject to departures that do not restrict service) there shall be inserted—
“(1A) Conditions included in a licence for the purposes of subsection (1) may provide that OFCOM may consent to a departure from the character of the licensed service if, and only if, they are satisfied—
(a) that the departure would not substantially alter the character of the service;
(b) that the departure would not narrow the range of programmes available by way of relevant independent radio services to persons living in the area or locality for which the service is licensed to be provided;
(c) that, in the case of a local licence, the departure would be conducive to the maintenance or promotion of fair and effective competition in that area or locality; or
(d) that, in the case of a local licence, there is evidence that, amongst persons living in that area or locality, there is a significant demand for, or significant support for, the change that would result from the departure.
(1B) The matters to which OFCOM must have regard in determining for the purposes of this section the character of a service provided under a local licence include, in particular, the selection of spoken material and music in programmes included in the service.”
(4) For subsection (5) (restriction on power to extend licence to new area or locality) there shall be substituted—
“(5) OFCOM shall only exercise the power conferred on them by subsection (4) if it appears to them—
(a) that to do so would not result in a significant increase of the area or locality for which the service in question is licensed to be provided; or
(b) that the increase that would result is justifiable in the exceptional circumstances of the case.”
(5) After subsection (6) of that section there shall be inserted—
“(7) In this section “relevant independent radio services” means the following services so far as they are services falling to be regulated under section 245 of the Communications Act 2003—
(a) sound broadcasting services;
(b) radio licensable content services;
(c) additional services;
but, in relation to a departure from the character of a service provided under a local licence, does not include a service that is provided otherwise than wholly or mainly for reception by persons living and working in the area or locality in question.”
After section 106 of the 1990 Act there shall be inserted—
(1) Before deciding for the purposes of a condition imposed under subsection (1A) of section 106 whether to consent to a departure from the character of a service provided under a local licence on any of the grounds mentioned in paragraphs (b) to (d) of that subsection, OFCOM must publish a notice specifying—
(a) the proposed departure; and
(b) the period in which representations may be made to OFCOM about the proposal.
(2) That period must end not less than 28 days after the date of publication of the notice.
(3) The notice must be published in such manner as appears to OFCOM to be appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the departure.
(4) OFCOM—
(a) are not required to publish a notice under this section, and
(b) may specify a period of less than 28 days in such a notice as the period for representations,
if they consider that the publication of the notice, or allowing a longer period for representations, would result in a delay that would be likely prejudicially to affect the interests of the licence holder.
(5) OFCOM are not required under this section—
(a) to publish any matter that is confidential in accordance with subsection (6) or (7); or
(b) to publish anything that it would not be reasonably practicable to publish without disclosing such a matter.
(6) A matter is confidential under this subsection if—
(a) it relates specifically to the affairs of a particular body; and
(b) its publication would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.
(7) A matter is confidential under this subsection if—
(a) it relates specifically to the private affairs of an individual; and
(b) its publication would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.”
(1) It shall be the duty of OFCOM to carry out their functions in relation to local sound broadcasting services in the manner that they consider is best calculated to secure—
(a) that programmes consisting of or including local material are included in such services but, in the case of each such service, only if and to the extent (if any) that OFCOM consider appropriate in that case; and
(b) that, where such programmes are included in such a service, what appears to OFCOM to be a suitable proportion of them consists of locally-made programmes.
(2) OFCOM must—
(a) draw up guidance as to how they consider the requirements of subsection (1)(a) and (b) should be satisfied; and
(b) have regard to that guidance in carrying out their functions in relation to local sound broadcasting services.
(3) The guidance may be different for different descriptions of services.
(4) OFCOM may revise the guidance from time to time.
(5) Before drawing up or revising the guidance, OFCOM must consult—
(a) such persons as appear to them to represent the interests of persons for whom local sound broadcasting services are or would be provided;
(b) persons holding licences to provide local sound broadcasting services or persons appearing to represent such persons, or both; and
(c) such other persons as they consider appropriate.
(6) OFCOM must publish the guidance and every revision of it in such manner as they consider appropriate.
(7) In this section—
“ local material”, in relation to a local sound broadcasting service, means material which is of particular interest—
to persons living or working within the area or locality for which the service is provided;
to persons living or working within a part of that area or locality; or
to particular communities living or working within that area or locality or a part of it;
“locally-made”, in relation to programmes included in a local sound broadcasting service, means made wholly or partly at premises in the area or locality for which that service is provided;
“material” includes news, information and other spoken material and music; and
“programme” does not include an advertisement.
(8) References in this section to persons living or working within an area or locality include references to persons undergoing education or training in that area or locality.
For subsection (6) of section 54 of the 1996 Act (variations of radio multiplex licence affecting service characteristics) there shall be substituted—
“(6) Where the licence holder applies to OFCOM for the variation of a condition which—
(a) was imposed under subsection (1)(b), and
(b) relates to the characteristics of digital sound programme services to be broadcast under the licence,
then (subject to subsections (6A) and (6B)) OFCOM must vary the condition in accordance with the application.
(6A) OFCOM are not to vary a national radio multiplex licence in accordance with an application under subsection (6) if it appears to them that, if the application were granted, the capacity of the digital sound programme services broadcast under the licence to appeal to a variety of tastes and interests would be unacceptably diminished.
(6B) OFCOM are to vary a local radio multiplex licence in accordance with such an application only if they are satisfied—
(a) that the variation would not unacceptably narrow the range of programmes available by way of local digital sound programme services to persons living in the area or locality for which the licensed multiplex service is provided;
(b) that the variation would be conducive to the maintenance or promotion of fair and effective competition in that area or locality; or
(c) that there is evidence that, amongst persons living in that area or locality, there is a significant demand for, or significant support for, the change that would result from the variation.”
(1) The regulatory regime for every licensed service includes the conditions (if any) that OFCOM consider appropriate for ensuring fair and effective competition in the provision of licensed services or of connected services.
(2) Those conditions must include the conditions (if any) that OFCOM consider appropriate for securing that the provider of the service does not—
(a) enter into or maintain any arrangements, or
(b) engage in any practice,
which OFCOM consider, or would consider, to be prejudicial to fair and effective competition in the provision of licensed services or of connected services.
(3) A condition imposed under this section may require a licence holder to comply with one or both of the following—
(a) a code for the time being approved by OFCOM for the purposes of the conditions; and
(b) directions given to him by OFCOM for those purposes.
(4) In this section—
“connected services”, in relation to licensed services, means the provision of programmes for inclusion in licensed services and any other services provided for purposes connected with, or with the provision of, licensed services; and
“licensed service” means a service licensed by a Broadcasting Act licence.
(1) This section applies to the following powers of OFCOM (their “Broadcasting Act powers”)—
(a) their powers under this Part of this Act and under the 1990 Act and the 1996 Act to impose or vary the conditions of a Broadcasting Act licence;
(b) every power of theirs to give an approval for the purposes of provision contained in the conditions of such a licence;
(c) every power of theirs to give a direction to a person who is required to comply with it by the conditions of such a licence; and
(d) every power of theirs that is exercisable for the purpose of enforcing an obligation imposed by the conditions of such a licence.
(2) Before exercising any of their Broadcasting Act powers for a competition purpose, OFCOM must consider whether a more appropriate way of proceeding in relation to some or all of the matters in question would be under the Competition Act 1998 (c. 41).
(3) If OFCOM decide that a more appropriate way of proceeding in relation to a matter would be under the Competition Act 1998, they are not, to the extent of that decision, to exercise their Broadcasting Act powers in relation to that matter.
(4) If OFCOM have decided to exercise any of their Broadcasting Act powers for a competition purpose, they must, on or before doing so, give a notification of their decision.
(5) A notification under subsection (4) must—
(a) be given to such persons, or published in such manner, as appears to OFCOM to be appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by their decision; and
(b) must describe the rights conferred by subsection (6) on the persons affected by that decision.
(6) A person affected by a decision by OFCOM to exercise any of their Broadcasting Act powers for a competition purpose may appeal to the Competition Appeal Tribunal against so much of that decision as relates to the exercise of that power for that purpose.
(7) Sections 192(3) to (8), 195 and 196 apply in the case of an appeal under subsection (6) as they apply in the case of an appeal under section 192(2).
(8) The jurisdiction of the Competition Appeal Tribunal on an appeal under subsection (6) excludes—
(a) whether OFCOM have complied with subsection (2); and
(b) whether any of OFCOM’s Broadcasting Act powers have been exercised in contravention of subsection (3);
and, accordingly, those decisions by OFCOM on those matters fall to be questioned only in proceedings for judicial review.
(9) For the purposes of this section a power is exercised by OFCOM for a competition purpose if the only or main reason for exercising it is to secure that the holder of a Broadcasting Act licence does not—
(a) enter into or maintain arrangements, or
(b) engage in a practice,
which OFCOM consider, or would consider, to be prejudicial to fair and effective competition in the provision of licensed services or of connected services.
(10) Nothing in this section applies to—
(a) the exercise by OFCOM of any of their powers under sections 290 to 294 or Schedule 11;
(b) the exercise by them of any power for the purposes of any provision of a condition included in a licence in accordance with any of those sections;
(c) the exercise by them of any power for the purpose of enforcing such a condition.
(11) In subsection (9) “connected services” and “licensed service” each has the same meaning as in section 316.
(12) References in this section to the exercise of a power include references to an exercise of a power in pursuance of a duty imposed on OFCOM by or under an enactment.
(1) It shall be the duty of OFCOM, at such intervals as they consider appropriate, to carry out a review of so much of each of the following as has effect for a competition purpose—
(a) every code made or approved by them under or for the purposes of a broadcasting provision;
(b) the guidance issued by them under or for the purposes of broadcasting provisions; and
(c) every direction given by them under or for the purposes of a broadcasting provision.
(2) Before modifying or revoking, or withdrawing their approval from, anything which is subject to periodic review under this section, OFCOM must consult such persons as they consider appropriate.
(3) Subsection (2) applies irrespective or whether the modification, revocation or withdrawal is in consequence of a review under this section.
(4) For the purposes of this section a provision has effect for a competition purpose to the extent that its only or main purpose is to secure that the holder of a Broadcasting Act licence does not—
(a) enter into or maintain arrangements, or
(b) engage in a practice,
which OFCOM consider, or would consider, to be prejudicial to fair and effective competition in the provision of licensed services or of connected services.
(5) In this section “broadcasting provision” means—
(a) a provision of this Part of this Act, of the 1990 Act or of the 1996 Act, or
(b) any provision of a Broadcasting Act licence,
other than provision contained in any of sections 290 to 294 of this Act or Schedule 11 to this Act.
(1) It shall be the duty of OFCOM to set, and from time to time to review and revise, such standards for the content of programmes to be included in television and radio services as appear to them best calculated to secure the standards objectives.
(2) The standards objectives are—
(a) that persons under the age of eighteen are protected;
(b) that material likely to encourage or to incite the commission of crime or to lead to disorder is not included in television and radio services;
(c) that news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with;
(d) that news included in television and radio services is reported with due accuracy;
(e) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;
(f) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material;
(g) that advertising that contravenes the prohibition on political advertising set out in section 321(2) is not included in television or radio services;
(h) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;
(i) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with;
(j) that the unsuitable sponsorship of programmes included in television and radio services is prevented;
(k) that there is no undue discrimination between advertisers who seek to have advertisements included in television and radio services; and
(l) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred.
(3) The standards set by OFCOM under this section must be contained in one or more codes.
(4) In setting or revising any standards under this section, OFCOM must have regard, in particular and to such extent as appears to them to be relevant to the securing of the standards objectives, to each of the following matters—
(a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;
(b) the likely size and composition of the potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;
(c) the likely expectation of the audience as to the nature of a programme’s content and the extent to which the nature of a programme’s content can be brought to the attention of potential members of the audience;
(d) the likelihood of persons who are unaware of the nature of a programme’s content being unintentionally exposed, by their own actions, to that content;
(e) the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section; and
(f) the desirability of maintaining the independence of editorial control over programme content.
(5) OFCOM must ensure that the standards from time to time in force under this section include—
(a) minimum standards applicable to all programmes included in television and radio services; and
(b) such other standards applicable to particular descriptions of programmes, or of television and radio services, as appear to them appropriate for securing the standards objectives.
(6) Standards set to secure the standards objective specified in subsection (2)(e) shall, in particular, contain provision designed to secure that religious programmes do not involve—
(a) any improper exploitation of any susceptibilities of the audience for such a programme; or
(b) any abusive treatment of the religious views and beliefs of those belonging to a particular religion or religious denomination.
(7) In setting standards under this section, OFCOM must take account of such of the international obligations of the United Kingdom as the Secretary of State may notify to them for the purposes of this section.
(8) In this section “news” means news in whatever form it is included in a service.
(1) The requirements of this section are—
(a) the exclusion, in the case of television and radio services (other than a restricted service within the meaning of section 245), from programmes included in any of those services of all expressions of the views or opinions of the person providing the service on any of the matters mentioned in subsection (2);
(b) the preservation, in the case of every television programme service, teletext service, national radio service and national digital sound programme service, of due impartiality, on the part of the person providing the service, as respects all of those matters;
(c) the prevention, in the case of every local radio service, local digital sound programme service or radio licensable content service, of the giving of undue prominence in the programmes included in the service to the views and opinions of particular persons or bodies on any of those matters.
(2) Those matters are—
(a) matters of political or industrial controversy; and
(b) matters relating to current public policy.
(3) Subsection (1)(a) does not require—
(a) the exclusion from television programmes of views or opinions relating to the provision of programme services; or
(b) the exclusion from radio programmes of views or opinions relating to the provision of programme services.
(4) For the purposes of this section—
(a) the requirement specified in subsection (1)(b) is one that (subject to any rules under subsection (5)) may be satisfied by being satisfied in relation to a series of programmes taken as a whole;
(b) the requirement specified in subsection (1)(c) is one that needs to be satisfied only in relation to all the programmes included in the service in question, taken as a whole.
(5) OFCOM’s standards code shall contain provision setting out the rules to be observed in connection with the following matters—
(a) the application of the requirement specified in subsection (1)(b);
(b) the determination of what, in relation to that requirement, constitutes a series of programmes for the purposes of subsection (4)(a);
(c) the application of the requirement in subsection (1)(c).
(6) Any provision made for the purposes of subsection (5)(a) must, in particular, take account of the need to ensure the preservation of impartiality in relation to the following matters (taking each matter separately)—
(a) matters of major political or industrial controversy, and
(b) major matters relating to current public policy,
as well as of the need to ensure that the requirement specified in subsection (1)(b) is satisfied generally in relation to a series of programmes taken as a whole.
(7) In this section “national radio service” and “local radio service” mean, respectively, a sound broadcasting service which is a national service within the meaning of section 245 and a sound broadcasting service which is a local service within the meaning of that section.
Communications Act 2003