Office of Public Sector Information
Section 338
1 (1) It shall be the duty of the BBC to secure 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 television broadcasting services provided by the BBC is allocated to the broadcasting of a range and diversity of independent productions.
(2) In this paragraph—
(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 paragraph;
(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 paragraph; 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 sub-paragraph (1) by substituting a different percentage for the percentage for the time being specified in that sub-paragraph.
(4) The Secretary of State may also by order provide for the BBC to have the duty set out in sub-paragraph (5), either instead of or as well as the one set out in sub-paragraph (1).
(5) That duty is a duty to secure that, in each year, not less than the percentage specified in the order of the programming budget for that year for the television broadcasting services provided by the BBC is applied in the acquisition of independent productions.
(6) The power to make an order under sub-paragraph (4) includes power to provide that the BBC are again to be subject to a duty to which they have previously ceased to be subject by virtue of such an order, in addition to or instead of the duty to which they are subject (apart from the exercise of that power) by virtue of this paragraph.
(7) The Secretary of State is not to make an order for the BBC to be or to cease to be subject to the duty mentioned in sub-paragraph (1) or (5) unless—
(a) OFCOM have made a recommendation to him that the BBC should be subject to that duty, or should cease to be subject to it; and
(b) the order gives effect to that recommendation.
(8) Where television broadcasting services are designated by or under the BBC Charter and Agreement—
(a) as services that must be treated separately for the purposes of the duty imposed by sub-paragraph (1) or a duty imposed under sub-paragraph (4), or
(b) as services that must be included in a group of services that must be taken together for the purposes of such a duty,
that duty is to have effect in accordance with sub-paragraph (9).
(9) A duty having effect in accordance with this sub-paragraph is to have effect as if (instead of applying to all the television broadcasting services provided by the BBC, taken together) it applied separately—
(a) in relation to each service that is required to be treated separately; and
(b) in relation to each group of services that are required to be taken together.
(10) The BBC must comply with directions given to them 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 their compliance with the duties imposed by virtue of sub-paragraph (1) or (4); and
(b) thereby increasing the percentage applicable for the purposes of those duties to the subsequent year or years.
(11) For the purposes of this paragraph—
(a) the amount of the programming budget 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.
(12) Before making an order under this paragraph the Secretary of State must consult OFCOM and the BBC.
(13) No order is to be made containing provision authorised by this paragraph unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(14) In this paragraph—
“acquisition”, in relation to a programme, includes commissioning and acquiring a right to include it in a service or to have it broadcast; and
“programming budget” means the budget for the production and acquisition of qualifying programmes.
2 (1) It shall be the duty of the BBC to make arrangements for securing that the matters mentioned in sub-paragraph (2) are brought to the attention of the public (whether by means of broadcasts or otherwise).
(2) Those matters are—
(a) OFCOM’s functions under Part 5 of the 1996 Act in relation to services provided by the BBC; and
(b) any procedures established by OFCOM or the BBC for the handling and resolution of complaints about the observance by the BBC of standards set under section 319.
3 (1) It shall be the duty of the Welsh Authority to secure that the public service remits for each of their public television services is fulfilled.
(2) The public service remit for S4C is the provision of a broad range of high quality and diverse programming in a service in which—
(a) a substantial proportion of the programmes consists of programmes in Welsh;
(b) the programmes broadcast for viewing between 6:30 PM and 10:00 PM on every day of the week consist mainly of programmes in Welsh; and
(c) the programmes that are not in Welsh are normally programmes which are being, have been or are to be broadcast on Channel 4.
(3) The public service remit for S4C Digital is the provision of a broad range of high quality and diverse programming in a service in which a substantial proportion of the programmes consists of programmes in Welsh.
(4) The public service remit for a television programme service provided by the Welsh Authority with the approval of the Secretary of State under section 205 is the remit set out in the order approving the provision of the service.
(5) The Secretary of State may by order modify sub-paragraphs (2) and (3).
(6) Before making an order specifying or modifying the public service remit for any of the Welsh Authority’s public television services, the Secretary of State must consult—
(a) the Authority; and
(b) where the order relates to the inclusion in any service of programmes that are not in Welsh, C4C.
(7) An order modifying the public service remit for S4C or S4C Digital must not contain provision inconsistent with a requirement that each service must—
(a) represent a public service for the dissemination of information, education and entertainment; and
(b) include programmes a substantial proportion of which consists of programmes in Welsh.
(8) No order is to be made containing provision authorised by sub-paragraph (5) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
4 (1) It shall be the duty of the Welsh Authority—
(a) as soon as practicable after the coming into force of this paragraph, and subsequently at annual intervals, to prepare a statement of programme policy; and
(b) to monitor their own performance in the carrying out of the proposals contained in statements made under this paragraph.
(2) Every statement of programme policy prepared under this paragraph must set out the Welsh Authority’s proposals for securing that, during the following year—
(a) the public service remit for each of their public television services to be provided during that year will be fulfilled; and
(b) the Welsh Authority’s duties under the provisions of this Schedule will be performed.
(3) Every such statement must contain a report on the performance of the Welsh Authority in the carrying out during the period since the previous statement of the proposals contained in that previous statement.
(4) When preparing such a statement, the Welsh Authority must consider—
(a) any guidance by OFCOM that is in force for the purposes of section 266; and
(b) any reports previously published by OFCOM under section 264 or 358.
(5) Every such statement must be published by the Welsh Authority as soon as practicable after its preparation is complete.
(6) OFCOM may direct that any statement of policy which—
(a) was made by the Welsh Authority before the coming into force of this paragraph, and
(b) is specified in the direction,
is to be treated for the purposes of this Act as if it were a statement made in relation to such period as may be so specified in pursuance of this paragraph.
(7) A direction under sub-paragraph (6) cannot contain provision the effect of which is to postpone the time at which the Welsh Authority would otherwise be required to make its first statement of programme policy.
5 (1) It shall be the duty of the Welsh Authority to ensure that each of their public digital services is at all times offered as available (subject to the need to agree terms)—
(a) to be broadcast or distributed by means of every appropriate network; and
(b) to be broadcast by means of every satellite television service that is available for reception by members of the public in Wales.
(2) It shall be the duty of the Welsh Authority to do their best to secure that arrangements are entered into, and kept in force, that ensure—
(a) that each of their public digital services is broadcast or distributed on appropriate networks; and
(b) that the broadcasting and distribution of each of their public digital services, in accordance with those arrangements, result in the service being available for reception, by means of appropriate networks, by as many members of its intended audience as practicable.
(3) It shall be the duty of the Welsh Authority to do their best to secure that arrangements are entered into, and kept in force, that ensure—
(a) that each of their public digital services is broadcast by means of satellite television services that are broadcast so as to be available for reception by members of the public in Wales; and
(b) that the broadcasting, in accordance with those arrangements, of each of the Authority’s public digital services by means of 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 Welsh Authority must secure that the arrangements entered into and kept in force for the purposes of sub-paragraphs (2) and (3) prohibit the imposition, for or in connection with the provision of an appropriate network or a satellite television service, of any charge that is attributable (whether directly or indirectly) to the conferring of an entitlement to receive each of the Authority’s public digital services in an intelligible form by means of that network or service.
(5) OFCOM may, by a direction to the Welsh Authority, require arrangements made or kept in force for the purposes of sub-paragraphs (2) or (3) to apply in the case of every service which is an ancillary service by reference to one of their public digital services as they apply to the service itself.
(6) For the purposes of this paragraph a public digital service of the Welsh Authority is to be treated, in relation to particular appropriate networks and satellite television services, as constituting such services comprised in or provided with that public digital service—
(a) as may be determined by agreement between the Welsh Authority and OFCOM; or
(b) in default of agreement, as may be directed by OFCOM.
(7) This paragraph—
(a) so far as it relates to the broadcasting or distribution of any of the Welsh Authority’s public digital services by means of appropriate networks, applies only in relation to times when that service is included in the list of must-carry services in section 64; and
(b) so far as it relates to the broadcasting of such a public digital service by means of a satellite television service, applies only in relation to times when that service is included in the list of must-provide services in section 275.
(8) In this paragraph—
“appropriate network” means an electronic communications network by means of which public electronic communications services are provided that are used by a significant number of end-users in Wales as their principal means of receiving television programmes;
“intended audience”, in relation to a public digital service of the Welsh Authority, means—
if the service is one provided only for a particular area or locality of Wales, 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 Wales;
“public digital service”, in relation to the Welsh Authority, means any of their public television services so far as it is provided in digital form; 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.
(9) For the purposes of this paragraph 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 Wales unless it is a network by means of which electronic communications services are provided to persons in that area or locality
(10) In sub-paragraph (8) “public electronic communications service” and “end-user” each has the same meaning as in Chapter 1 of Part 2.
(11) An order under section 411 must not appoint a day for provisions of this paragraph to come into force that falls less than six months after the day on which the order is made.
6 It shall be the duty of the Welsh Authority—
(a) to join with the providers of other must-provide services in entering into and maintaining arrangements satisfying the requirements of section 274; and
(b) to comply with the requirements of any arrangements imposed by OFCOM for the purposes of conditions under subsection (2) of that section.
7 (1) It shall be the duty of the Welsh Authority to secure 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 their designated public services (taken together) is allocated to the broadcasting of a range and diversity of independent productions.
(2) In this paragraph—
(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 paragraph;
(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 paragraph; 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 sub-paragraph (1) by substituting a different percentage for the percentage for the time being specified in that sub-paragraph.
(4) The Secretary of State may also by order provide for the Welsh Authority to have the duty set out in sub-paragraph (5), either instead of or as well as the one set out in sub-paragraph (1).
(5) That duty is a duty to secure that, in each year, not less than the percentage specified in the order of the programming budget for that year for the designated public services (taken together) is applied in the acquisition of independent productions.
(6) The power to make an order under sub-paragraph (4) includes power to provide that the Welsh Authority are again to be subject to a duty to which they have previously ceased to be subject by virtue of such an order, in addition to or instead of the duty to which they are subject (apart from the exercise of that power) by virtue of this paragraph.
(7) The Secretary of State is not to make an order for the Welsh Authority to be or to cease to be subject to the duty mentioned in sub-paragraph (1) or (5) unless—
(a) OFCOM have made a recommendation to him that the Authority should be subject to that duty, or should cease to be subject to it; and
(b) the order gives effect to that recommendation.
(8) The Welsh Authority must comply with directions given to them 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 their compliance with the duties imposed by virtue of sub-paragraph (1) or (4); and
(b) thereby increasing the percentage applicable for the purposes of those duties to the subsequent year or years.
(9) For the purposes of this paragraph—
(a) the amount of the programming budget 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) Before making an order under this paragraph the Secretary of State must consult OFCOM, the BBC and the Welsh Authority.
(11) No order is to be made containing provision authorised by this paragraph unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(12) The services that are designated public services for the purposes of this paragraph are—
(a) S4C;
(b) S4C Digital; and
(c) any of the Welsh Authority’s other public television services which is designated for the purposes of this paragraph by the order under section 205 approving its provision.
(13) In this paragraph—
“acquisition”, in relation to a programme, includes commissioning and acquiring 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.
8 (1) It shall be the duty of the Welsh Authority, in relation to their designated public services (taken together) to secure—
(a) that the time allocated, in each year, to the broadcasting of original productions included in those services is no less than the proportion fixed under sub-paragraph (2) of the total amount of time allocated to the broadcasting of all the programmes included in those services; and
(b) that the time allocated to the broadcasting of original productions is split in the manner so fixed between peak viewing times and other times.
(2) The fixing for the purposes of sub-paragraph (1) of a proportion or manner of splitting allocated time is to be—
(a) by agreement between the Welsh Authority and OFCOM; or
(b) in default of agreement, by a direction given by OFCOM to the Authority fixing the proportion or manner according to whatever OFCOM consider appropriate for ensuring that the service is consistently of a high quality.
(3) The agreement or direction may, for the purposes of sub-paragraph (1)(b), fix a proportion for the purposes of sub-paragraph (1)(a) in terms of the cumulative effect of two different minimum proportions, one applying to peak viewing times and the other to other times.
(4) The agreement or direction may provide that specified descriptions of programmes are to be excluded in determining the programmes a proportion of which is to constitute original productions.
(5) It may also provide that, in determining whether a programme is of a description of programmes excluded by an agreement or direction by virtue of sub-paragraph (4), regard is to be had to any guidance prepared and published, and from to time revised, by OFCOM.
(6) References in this paragraph, in relation to the designated public services of the Welsh Authority, 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 paragraph.
(7) The power to specify descriptions of programmes by order under sub-paragraph (6) includes power to confer such discretions on OFCOM as the Secretary of State thinks fit.
(8) Before making an order under this paragraph 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 paragraph unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(10) The services that are designated public services for the purposes of this paragraph are—
(a) S4C;
(b) S4C Digital; and
(c) any of the Welsh Authority’s other public television services which is designated for the purposes of this paragraph by the order under section 205 approving its provision.
(11) In this paragraph—
“peak viewing time”, in relation to the designated public services of the Welsh Authority, means a time that is determined in accordance with sub-paragraph (12) to be a peak viewing time for one or more of those services; and
“programme” does not include an advertisement.
(12) The determination for the purposes of this paragraph of peak viewing times is to be—
(a) by agreement between the Welsh Authority and OFCOM; or
(b) in default of agreement, by a direction given by OFCOM to the Authority determining those times.
9 (1) It shall be the duty of the Welsh Authority, in relation to their designated public services, to secure—
(a) that the programmes included in each service include news programmes and current affairs programmes;
(b) that the news programmes and current affairs programmes included in each service 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 service is provided.
(2) It shall be the duty of the Welsh Authority, in relation to each of their designated public services, to ensure that the news programmes and current affairs programmes included in each service are of high quality.
(3) It shall also be the duty of the Welsh Authority, in relation to each of their designated public services, to secure 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 the proportion fixed under sub-paragraph (5) of the time allocated to the broadcasting of all the programmes included in the service.
(4) It is the further duty of the Welsh Authority, in relation to each of their designated public services, to secure 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 the manner fixed under sub-paragraph (5), between peak viewing times and other times.
(5) The fixing for the purposes of sub-paragraph (3) or (4) of a proportion or manner of splitting allocated time is to be—
(a) by agreement between the Welsh Authority and OFCOM; or
(b) in default of agreement, by a direction given by OFCOM to the Authority fixing the proportion or manner according to whatever OFCOM consider appropriate.
(6) The agreement or direction may, for the purposes of sub-paragraph (4), fix a proportion for the purposes of sub-paragraph (3) in terms of the cumulative effect of two different minimum proportions, one applying to peak viewing times and the other to other times.
(7) The services that are designated public services for the purposes of this paragraph are—
(a) S4C;
(b) S4C Digital; and
(c) any of the Welsh Authority’s other public television services which is designated for the purposes of this paragraph by the order under section 205 approving its provision.
(8) In this paragraph “peak viewing time”, in relation to a service, means a time that is determined in accordance with sub-paragraph (9) to be a peak viewing time for that service.
(9) The determination for the purposes of this paragraph of a peak viewing time is to be—
(a) by agreement between the Welsh Authority and OFCOM; or
(b) in default of agreement, by a direction given by OFCOM to the Authority determining that time.
10 (1) It shall be the duty of the Welsh Authority to draw up and from time to time revise a code of practice setting out the principles that are to be applied when they or an S4C company are for a relevant purpose agreeing terms for the commissioning of independent productions.
(2) A relevant purpose is a purpose connected with the provision by the Welsh Authority or an S4C company of a programme service.
(3) It shall also be the duty of the Welsh Authority—
(a) at all times to comply with the code of practice which is for the time being in force under this paragraph;
(b) to take all reasonable steps for securing that the code is complied with by S4C companies;
(c) to exercise their power to revise that code to take account of revisions from time to time of the guidance issued by OFCOM for the purposes of this paragraph; and
(d) to comply with such directions as may be given to the Authority by OFCOM for securing that they properly perform their duties under paragraphs (a) and (b).
(4) The code for the time being in force under this paragraph must be such as to secure, in the manner described in guidance issued by OFCOM—
(a) that a reasonable timetable is applied to negotiations for the commissioning of an independent production and for the conclusion of a binding agreement;
(b) that there is sufficient clarity when an independent production is commissioned about the different categories of rights to broadcast or otherwise to make use of or exploit the commissioned production that are being disposed of;
(c) that there is sufficient transparency about the amounts to be paid in respect of each category of rights;
(d) that satisfactory arrangements are made about the duration and exclusivity of those rights;
(e) that procedures exist for reviewing the arrangements adopted in accordance with the code and for demonstrating compliance with it;
(f) that those procedures include requirements for the monitoring of the application of the code and for the making of reports to OFCOM;
(g) that provision is made for resolving disputes arising in respect of the provisions of the code (by independent arbitration or otherwise) in a manner that appears to OFCOM to be appropriate.
(5) The Welsh Authority must also ensure that the drawing up or revision of a code by virtue of this paragraph is in accordance with guidance issued by OFCOM as to—
(a) the times when the code is to be drawn up or reviewed with a view to revision;
(b) the consultation to be undertaken before a code is drawn up or revised;
(c) the publication of every code or revised code.
(6) The Welsh Authority must submit to OFCOM for approval a draft of—
(a) every code that is required to be drawn up under this paragraph; and
(b) every revision made by that Authority of such a code.
(7) A code drawn up by the Welsh Authority or a revision of such a code —
(a) is to have effect for the purposes of this paragraph only if approved by OFCOM; and
(b) if approved by OFCOM subject to modifications, is to have effect with those modifications.
(8) OFCOM—
(a) must issue and may from time to time revise guidance for the purposes of this paragraph;
(b) must ensure that there is always guidance for those purposes in force;
(c) must, before issuing their guidance or revised guidance, consult the providers of licensed public service channels, persons who make independent productions (or persons appearing to OFCOM to represent them), the BBC and the Welsh Authority; and
(d) must publish their guidance or revised guidance in such manner as they think appropriate.
(9) Guidance issued by OFCOM for the purposes of this paragraph must be general guidance and is not to specify particular terms to be included in agreements to which the guidance relates.
(10) OFCOM may by a direction to the Welsh Authority specify that a code which—
(a) was drawn up by the Authority before the commencement of this paragraph, and
(b) is identified in the direction,
is to be treated as drawn up in pursuance of this paragraph and approved by OFCOM.
(11) In this paragraph “independent production” has the same meaning as in paragraph 7.
Communications Act 2003