Legalize / United Kingdom / Public General Act

Communications Act 2003

Type Public General Act

Publication 2003-07-17

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

articles 1

Reform history JSON API

Chapter 6 — Other provisions about television and radio services

Annual report on television and radio

Annual factual and statistical report

358

(1) It shall be the duty of OFCOM—

(a) as soon as practicable after the end of the period of twelve months beginning with the commencement of this section, and

(b) as soon as practicable after the end of every subsequent period of twelve months,

to satisfy for that period the review and reporting requirements of this section.

(2) For any period those obligations are—

(a) to carry out a review of the provision of the television and radio services available for reception by members of the public in the United Kingdom during that period; and

(b) to prepare a factual and statistical report for that period on the provision of those services and on the state of the market in which they are provided.

(3) In carrying out a review for any period under this section, OFCOM must consider, in particular, each of the following—

(a) the extent to which programmes included during that period in television and radio services are representative of what OFCOM consider to be the principal genres for such programmes;

(b) the extent to which codes made by OFCOM under this Part or Part 4 or 5 of the 1996 Act (listed events and fairness) have been complied with during that period;

(d) any trends appearing or operating during that period in the size and behaviour of the audience for radio and television services;

(e) the financial condition during that period of the market in which those services are provided and of the market in which programmes for such services are produced;

(f) what it is appropriate to achieve by conditions and duties under section 277 and paragraphs 1 and 7 of Schedule 12 and the effectiveness for that purpose of the conditions and duties for the time being in force;

(g) whether it would be appropriate to recommend to the Secretary of State that he exercises any of his powers under that section or those paragraphs;

(h) the extent to which work on independent productions (within the meaning of that section and those paragraphs) that are produced in the United Kingdom is done in a range of production centres outside the M25 area;

(i) any issues relating to intellectual property in programmes that have arisen or been of significance during that period;

(j) developments in technology that have occurred or become important during that period and are relevant to the provision, broadcasting or distribution of television and radio programmes;

(k) the availability during that period of persons with skills that are used or likely to be useful in connection with the provision of television and radio services and the production of programmes for inclusion in such services;

(l) the availability during that period of facilities for the provision of training in such skills.

(4) Every report under this section must set out OFCOM’s findings on their consideration of the matters mentioned in subsection (3).

(5) Every report prepared by OFCOM under this section must be published by them—

(a) as soon as practicable after its preparation is complete; and

(b) in such manner as they consider appropriate.

(6) OFCOM’s duties under this section are in addition to their duties under section 264.

Community radio and local digital television

Grants to providers

359

(1) OFCOM may make such grants as they consider appropriate to the provider of any service of a description of service in relation to which provision is for the time being in force under section 262.

(2) The Secretary of State may by order provide that OFCOM may also make such grants as they consider appropriate to the provider of any service of a description of service in relation to which provision is for the time being in force under section 244.

(3) A grant made by virtue of this section may be made on such terms and conditions, and shall become repayable to OFCOM in such circumstances, as may be specified by OFCOM when making the grant.

(4) A person is not—

(a) by reason of the making to him of a grant by virtue of this section, or

(b) by reason of any terms or conditions (including any provisions for repayment) subject to which such a grant is or has been made to him,

to be a disqualified person by virtue of any provision of Schedule 2 to the 1990 Act in relation to a licence mentioned in subsection (5).

(5) Those licences are—

(a) a licence under Part 1 of the 1990 Act, or under Part 1 of the 1996 Act, which is granted in accordance with any provision made by an order under section 244 of this Act; and

(b) a licence under Part 3 of the 1990 Act, or under Part 2 of the 1996 Act, which is granted in accordance with any provision made by an order under section 262 of this Act.

(6) 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.

Supplemental provisions of Part 3

Amendments of the 1990 and 1996 Acts

360

(1) In section 201 of the 1990 Act (programme services), in subsection (1)—

(a) for paragraphs (a) to (bb) there shall be substituted—

(aa) any service which is a programme service within the meaning of the Communications Act 2003;

(b) in paragraph (c), for “a telecommunication system” there shall be substituted “ an electronic communications network (within the meaning of the Communications Act 2003) ”.

(2) For subsection (2) of that section there shall be substituted—

(2A) Subsection (1)(c) does not apply to so much of a service consisting only of sound programmes as— (a) is a two-way service (within the meaning of section 248(4) of the Communications Act 2003); (b) satisfies the conditions in section 248(5) of that Act; or (c) is provided for the purpose only of being received by persons who have qualified as users of the service by reason of being persons who fall within paragraph (a) or (b) of section 248(7) of that Act. (2B) Subsection (1)(c) does not apply to so much of a service not consisting only of sound programmes as— (a) is a two-way service (within the meaning of section 232 of the Communications Act 2003); (b) satisfies the conditions in section 233(5) of that Act; or (c) is provided for the purpose only of being received by persons who have qualified as users of the service by reason of being persons who fall within paragraph (a) or (b) of section 233(7) of that Act.

(3) Schedule 15 (which makes minor and consequential amendments of the 1990 Act and the 1996 Act for purposes connected with the other provisions of this Chapter) shall have effect.

Meaning of “available for reception by members of the public”

361

(1) The services that are to be taken for the purposes of this Part to be available for reception by members of the public include (subject to subsection (2)) any service which—

(a) is made available for reception, or is made available for reception in an intelligible form, only to persons who subscribe to the service (whether for a period or in relation to a particular occasion) or who otherwise request its provision; but

(b) is a service the facility of subscribing to which, or of otherwise requesting its provision, is offered or made available to members of the public.

(2) A service is not to be treated as available for reception by members of the public if it is an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service (see section 368HA).

(6) References in this section to members of the public are references to members of the public in, or in any area of, any one or more countries or territories (which may or may not include the United Kingdom).

(7) The Secretary of State may by order modify any of the provisions of this section 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 or sound 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;

(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.

(8) No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation of Part 3

362

(1) In this Part—

“additional radio service” means an additional service within the meaning given by section 114(1) of the 1990 Act for the purposes of Part 3 of that Act;

“additional television service” (except in the expression “digital additional television service”) means an additional service within the meaning given by section 48 of the 1990 Act for the purposes of Part 1 of the 1990 Act;

“ancillary service” has the same meaning as it has, by virtue of section 24(2) of the 1996 Act, in Part 1 of that Act;

“assistance for disabled people” includes, in particular, any of the following—subtitling;audio-description for the blind and partially sighted; andpresentation in, or translation into, sign language;

“audiovisual content”, in relation to a relevant audiovisual service, has the meaning given by section 264;

“available for reception by members of the public” is to be construed in accordance with section 361;

“the BBC Charter and Agreement” means the following documents, or any one or more of them, so far as they are for the time being in force—a Royal Charter for the continuance of the BBC;supplemental Charters obtained by the BBC under such a Royal Charter;an agreement between the BBC and the Secretary of State entered into (whether before or after the passing of this Act) for purposes that include the regulation of activities carried on by the BBC;

“BBC company” means—a body corporate which is controlled by the BBC; ora body corporate in which the BBC or a body corporate controlled by the BBC is (to any extent) a participant;

“C4 company” means—a body corporate which is controlled by C4C; ora body corporate in which C4C or a body corporate controlled by C4C is (to any extent) a participant;

“Channel 3”, “Channel 4” and “Channel 5” each has the same meaning as in Part 1 of the 1990 Act (see section 71 of that Act);

“Channel 3 licence” means a licence to provide a Channel 3 service;

“a Channel 3 service” means a television broadcasting service comprised in Channel 3;

“digital additional sound service” means a digital additional service within the meaning given by section 63 of the 1996 Act for the purposes of Part 2 of that Act;

“digital additional television service” means a digital additional service within the meaning given by section 24(1) of the 1996 Act for the purposes of Part 1 of that Act;

“digital sound programme licence” and “digital sound programme service” each has the same meaning as in Part 2 of the 1996 Act (see sections 40 and 72 of that Act);

“digital television programme service” means a digital programme service within the meaning given by section 1(4) of the 1996 Act for the purposes of Part 1 of that Act;

“EEA State” has the meaning given by Schedule 1 to the Interpretation Act 1978, ...;

“the European Convention on Transfrontier Television” means the Council of Europe Convention on Transfrontier Television which was opened for signature at Strasbourg on 5th May 1989, as amended by the Protocol which was opened for signature at Strasbourg on 1st October 1998;

“general multiplex service” means a multiplex service within the meaning of section 175 which is neither a television multiplex service nor a radio multiplex service;

“initial expiry date” has the meaning given by section 224;

“licensed public service channel” means any of the following services (whether provided for broadcasting in digital or in analogue form)—any Channel 3 service;Channel 4;Channel 5;

“local digital sound programme licence” and “local digital sound programme service” each has the same meaning as in Part 2 of the 1996 Act (see sections 60 and 72 of that Act);

“local radio multiplex licence” and “local radio multiplex service” each has the same meaning as in Part 2 of the 1996 Act (see sections 40 and 72 of that Act);

“local sound broadcasting licence” means a licence under Part 3 of the 1990 Act to provide a local sound broadcasting service;

“local sound broadcasting service” means a sound broadcasting service which, under subsection (4)(b) of section 245, is a local service for the purposes of that section;

“the M25 area” means the area the outer boundary of which is represented by the London Orbital Motorway (M25);

“national Channel 3 service” means a Channel 3 service provided between particular times of the day for more than one area for which regional Channel 3 services are provided;

“national digital sound programme service” has the same meaning as in Part 2 of the 1996 Act;

“national radio multiplex licence” and “national radio multiplex service” each has the same meaning as in Part 2 of the 1996 Act (see sections 40 and 72 of that Act);

“networking arrangements” has the meaning given by section 290;

“OFCOM’s standards code” means any code or codes for the time being in force containing standards set by OFCOM under section 319 (whether originally or by way of any revision of any standards previously so set);

“product placement” has the meaning given by paragraph 1 of Schedule 11A;

“provision”, in relation to a service, is to be construed (subject to subsection (3)) in accordance with subsection (2), and cognate expressions are to be construed accordingly;

“qualifying audiovisual content” has the meaning given by section 278B (and references to making available qualifying audiovisual content are to be construed in accordance with that section);

“qualifying audiovisual service” has the meaning given by section 278B;

“qualifying service” has the same meaning as in Part 1 of the 1996 Act (see section 2(2) of that Act);

“radio licensable content service” has the meaning given by section 247;

“radio multiplex service” has the same meaning as (by virtue of section 258 of this Act) it has in Part 2 of the 1996 Act;

“radio programme service” means any of the following—a service the provision of which is licensed under Part 3 of the 1990 Act;a digital sound programme service the provision of which is licensed under Part 2 of the 1996 Act;a digital additional sound service the provision of which is licensed under section 64 of the 1996 Act;

“regional Channel 3 licence” means a licence under Part 1 of the 1990 Act to provide a regional Channel 3 service;

“regional Channel 3 service” means a Channel 3 service provided for a particular area determined under section 14(2) of the 1990 Act;

“relevant audiovisual service” has the meaning given by section 264;

“restricted television service” means any restricted service within the meaning given by section 42A of the 1990 Act for the purposes of Part 1 of that Act;

“S4C company” means—a body corporate which is controlled by S4C; ora body corporate in which S4C or a body corporate controlled by S4C is (to any extent) a participant;

“S4C Digital” means the television programme service provided by S4C in digital form and originally known as S4C Digital but increasingly since April 2010 (date of digital switch-over in Wales) simply called S4C;

“simulcast radio service” means any simulcast radio service within the meaning given by section 41(2) of the 1996 Act for the purposes of Part 2 of that Act;

“sound broadcasting service” has the same meaning as in Part 3 of the 1990 Act (see section 126 of that Act);

“standards objectives” has the meaning given by section 319(2);

“subtitling” means subtitling for the deaf or hard of hearing, whether provided by means of a teletext service or otherwise;

“television broadcasting service” means (subject to subsection (4)) a service (or a dissociable section of a service) which—consists in a service of television programmes provided with a view to its being broadcast (whether in digital or in analogue form);is provided so as to be available for reception by members of the public; andis not—a restricted television service;a television multiplex service;a service provided under the authority of a licence under Part 1 of the 1990 Act to provide a television licensable content service; ora service provided under the authority of a licence under Part 1 of the 1996 Act to provide a digital television programme service;

“television licensable content service” has the meaning given by section 232 of this Act;

“television multiplex service” has meaning given by section 241(1) of this Act to a multiplex service within the meaning of Part 1 of the 1996 Act;

“television programme service” means any of the following—a television broadcasting service;a television licensable content service;a digital television programme service;a restricted television service;

“text service” means any teletext service or other service in the case of which the visual images broadcast or distributed by means of the service consist wholly or mainly of non-representational images.

(2) In the case of any of the following services—

(a) a television broadcasting service or sound broadcasting service,

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) a digital television programme service or digital sound programme service,

(e) a restricted television service,

(f) an additional television service or additional radio service,

(g) a digital additional television service or a digital additional sound service,

the person, and the only person, who is to be treated for the purposes of this Part as providing the service is the person with general control over which programmes and other services and facilities are comprised in the service (whether or not he has control of the content of individual programmes or of the broadcasting or distribution of the service).

(3) For the purposes of this Part—

(a) the provision of a service by the BBC does not include its provision by a BBC company;

(b) the provision of a service by C4C does not include its provision by a C4 company;

and, accordingly, control that is or is capable of being exercised by the BBC, C4C or S4C over decisions by a BBC company, C4 company or S4C company about what is to be comprised in a service shall be disregarded for the purposes of subsection (2).

(4) References in this Part to a television broadcasting service do not include references to any text service.

(5) References in this Part to imposing a charge on a person in respect of his reception of a service in, or in a part of, the United Kingdom include references to imposing charges—

(a) for his use of the service at a place in the United Kingdom or in that part of it;

(b) for an entitlement of his to receive it at such place;

(d) for the service’s being made available for reception by him at such a place.

(6) In subsection (1) “controlled” and “participant” each has the same meaning as in Schedule 2 to the 1990 Act.

(7) In this section “non-representational images” means visual images which are neither still pictures nor comprised within sequences of visual images capable of being seen as moving pictures.

Part 4 — Licensing of TV reception

Licence required for use of TV receiver

363

(1) A television receiver must not be installed or used unless the installation and use of the receiver is authorised by a licence under this Part.

(2) A person who installs or uses a television receiver in contravention of subsection (1) is guilty of an offence.

(3) A person with a television receiver in his possession or under his control who—

(a) intends to install or use it in contravention of subsection (1), or

(b) knows, or has reasonable grounds for believing, that another person intends to install or use it in contravention of that subsection,

is guilty of an offence.

(4) A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(5) Subsection (1) is not contravened by anything done in the course of the business of a dealer in television receivers solely for one or more of the following purposes—

(a) installing a television receiver on delivery;

(b) demonstrating, testing or repairing a television receiver.

(6) The Secretary of State may by regulations exempt from the requirement of a licence under subsection (1) the installation or use of television receivers—

(a) of such descriptions,

(b) by such persons,

(d) for such purposes,

as may be provided for in the regulations.

(7) Regulations under subsection (6) may make any exemption for which such regulations provide subject to compliance with such conditions as may be specified in the regulations.

TV licences

364

(1) A licence for the purposes of section 363 (“a TV licence”)—

(a) may be issued by the BBC subject to such restrictions and conditions as the BBC think fit; and

(b) must be issued subject to such restrictions and conditions as the Secretary of State may require by a direction to the BBC.

(2) The matters to which the restrictions and conditions subject to which a TV licence may be issued may relate include, in particular—

(a) the description of television receivers that may be installed and used under the licence;

(b) the persons authorised by the licence to install and use a television receiver;

(d) the circumstances in which the installation and use of such a receiver is so authorised;

(e) the purposes for which the installation and use of such a receiver is so authorised;

(f) the use of such receiver in a manner that causes, or may cause, interference (within the meaning of the Wireless Telegraphy Act 2006 ) with wireless telegraphy.

(3) The restrictions and conditions subject to which a TV licence may be issued do not include—

(a) a provision conferring a power of entry to any premises; or

(b) a provision prohibited by a direction to the BBC by the Secretary of State.

(4) A TV licence shall continue in force, unless previously revoked by the BBC, for such period as may be specified in the licence.

(5) The BBC may revoke or modify a TV licence, or the restrictions or conditions of such a licence—

(a) by a notice to the holder of the licence; or

(b) by a general notice published in such manner as may be specified in the licence.

(6) It shall be the duty of the BBC to exercise their power under subsection (5) to revoke or modify a TV licence, or any of its restrictions or conditions, if they are directed to do so by the Secretary of State.

(7) A direction by the Secretary of State under this section may be given either generally in relation to all TV licences (or all TV licences of a particular description) or in relation to a particular licence.

(8) A notice under subsection (5)(a) must be given—

(a) in the manner specified in the licence; or

(b) if no manner of service is so specified, in the manner authorised by section 394.

(9) For the purposes of the application, in relation to the giving of such a notice, of—

(a) section 394; and

(b) section 7 of the Interpretation Act 1978 (c. 30) (service by post) in its application for the purposes of that section,

a person’s proper address is any address where he is authorised by a TV licence to install or use a TV receiver or, if there is no such address, his last known address.

TV licence fees

365

(1) A person to whom a TV licence is issued shall be liable to pay—

(a) on the issue of the licence (whether initially or by way of renewal), and

(b) in such other circumstances as regulations made by the Secretary of State may provide,

such sum (if any) as may be provided for by any such regulations.

(1A) Liability to pay a sum under regulations under subsection (1) is subject to any concession applying in accordance with a determination by the BBC under section 365A.

(2) Sums which a person is liable to pay by virtue of regulations under subsection (1) must be paid to the BBC and are to be recoverable by them accordingly.

(3) The BBC are entitled, in such cases as they may determine, to make refunds of sums received by them by virtue of regulations under this section.

(4) Regulations under this section may include provision—

(a) for the means by which an entitlement to a concession provided for by the regulations must be established; and

(b) for the payment of sums by means of an instalment scheme set out in the regulations.

(5) A reference in this section or section 365A to a concession is a reference to any concession under which a person is, on the satisfaction of specified requirements—

(a) exempted from the liability to pay a sum in respect of a TV licence; or

(b) required to pay only a reduced sum in respect of such a licence.

(5A) Regulations under this section may not provide for a concession that requires the person to whom the TV licence is issued, or another person, to be of or above a specified age, unless—

(a) the age specified is below 65, and

(b) the requirement is not satisfied if the person concerned is 65 or over at the end of the month in which the licence is issued.

(5B) Subsection (5A) does not apply to—

(a) the concession provided for by regulation 3(d) of and Schedule 4 to the Communications (Television Licensing) Regulations 2004 (S.I. 2004/692) (accommodation for residential care), or

(b) a concession in substantially the same form.

(6) The consent of the Treasury shall be required for the making of any regulations under this section by the Secretary of State.

(7) Subject to subsection (8), sums received by the BBC by virtue of any regulations under this section must be paid into the Consolidated Fund.

(8) The BBC may retain, out of the sums received by them by virtue of regulations under this section, any sums they require for making refunds of sums so received.

Powers to enforce TV licensing

366

(1) If a justice of the peace, a sheriff in Scotland or a lay magistrate in Northern Ireland is satisfied by information on oath that there are reasonable grounds for believing—

(a) that an offence under section 363 has been or is being committed,

(b) that evidence of the commission of the offence is likely to be on premises specified in the information, or in a vehicle so specified, and

he may grant a warrant under this section.

(2) A warrant under this section is a warrant authorising any one or more persons authorised for the purpose by the BBC or by OFCOM—

(a) to enter the premises or vehicle at any time (either alone or in the company of one or more constables); and

(b) to search the premises or vehicle and examine and test any television receiver found there.

(3) Those conditions are—

(a) that there is no person entitled to grant entry to the premises or vehicle with whom it is practicable to communicate;

(b) that there is no person entitled to grant access to the evidence with whom it is practicable to communicate;

(d) that the purpose of the search may be frustrated or seriously prejudiced unless the search is carried out by a person who secures entry immediately upon arriving at the premises or vehicle.

(4) A person is not to enter premises or a vehicle in pursuance of a warrant under this section at any time more than one month after the day on which the warrant was granted.

(5) The powers conferred by a warrant under this section on a person authorised by OFCOM are exercisable in relation only to a contravention or suspected contravention of a condition of a TV licence relating to interference with wireless telegraphy.

(6) A person authorised by the BBC, or by OFCOM, to exercise a power conferred by a warrant under this section may (if necessary) use such force as may be reasonable in the exercise of that power.

(7) Where a person has the power by virtue of a warrant under this section to examine or test any television receiver found on any premises, or in any vehicle, it shall be the duty—

(a) of a person who is on the premises or in the vehicle, and

(b) in the case of a vehicle, of a person who has charge of it or is present when it is searched,

to give the person carrying out the examination or test all such assistance as that person may reasonably require for carrying it out.

(8) A person is guilty of an offence if he—

(a) intentionally obstructs a person in the exercise of any power conferred on that person by virtue of a warrant under this section; or

(b) without reasonable excuse, fails to give any assistance that he is under a duty to give by virtue of subsection (7).

(9) A person guilty of an offence under subsection (8) shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

(10) In this section—

“interference”, in relation to wireless telegraphy, has the same meaning as in the Wireless Telegraphy Act 2006 ; and

“vehicle” includes vessel, aircraft or hovercraft.

(11) In the application of this section to Scotland, the reference in subsection (1) to information on oath shall have effect as a reference to evidence on oath.

(12) In the application of this section to Northern Ireland, the reference in subsection (1) to a lay magistrate shall have effect, in relation to times before the coming into force of sections 9 and 10 of the Justice (Northern Ireland) Act 2002 (c. 26), as a reference to a justice of the peace.

Interpretation of provisions about dealer notification

367

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Meanings of “television receiver” and “use”

368

(1) In this Part “television receiver” means any apparatus of a description specified in regulations made by the Secretary of State setting out the descriptions of apparatus that are to be television receivers for the purposes of this Part.

(2) Regulations under this section defining a television receiver may provide for references to such a receiver to include references to software used in association with apparatus.

(3) References in this Part to using a television receiver are references to using it for—

(a) receiving all or any part of any television programme, or

(b) receiving all or any part of a programme included in an on-demand programme service which is provided by the BBC,

and that reference to the provision of an on-demand programme service by the BBC is to be read in accordance with section 368R(5) and (6).

(4) The power to make regulations under this section defining a television receiver includes power to modify subsection (3).

Part 5 — Competition in communications markets

Chapter 1 — Functions of OFCOM under competition legislation

Matters in relation to which OFCOM have competition functions

369

(1) In this Chapter references to communications matters are references to any one or more of the following—

(a) the provision of electronic communications networks;

(b) the provision of electronic communications services;

(i) by means of, or in association with the provision (by the same person or another) of, an electronic communications network or electronic communications service; or

(ii) for the purpose of facilitating the use of any such network or service (whether provided by the same person or another);

(d) apparatus used for providing or making available anything mentioned in the preceding paragraphs;

(e) broadcasting and related matters.

(f) the provision of postal services.

(2) The Secretary of State may by order make such amendments of subsection (1) as he may consider appropriate for the purpose of modifying the description of activities in respect of which any of the provisions of this Part—

(a) confer functions on OFCOM under Part 1 of the Competition Act 1998 (c. 41) or relate to the carrying out by OFCOM of those functions; or

(b) confer functions on OFCOM under Part 4 of the Enterprise Act 2002 (c. 40) or relate to the carrying out by OFCOM of those functions.

(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.

OFCOM’s functions under Part 4 of the Enterprise Act 2002

370

(1) The functions to which subsection (2) applies shall be concurrent functions of OFCOM and the Competition and Markets Authority (referred to in this Part as “the CMA”) .

(2) This subsection applies to the functions of the CMA under Part 4 of the Enterprise Act 2002 (market investigations) (other than sections 166 , 167C , 171 and 174E ) so far as those functions—

(a) are exercisable by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and

(b) relate to commercial activities connected with communications matters.

(3) So far as necessary for the purposes of, or in connection with, subsections (1) and (2)—

(a) references in Part 4 of the Enterprise Act 2002 to the CMA (including references in provisions of that Act applied by that Part) shall be construed as including references to OFCOM (except in sections 166 , 167C, 171 and 174E and where the context otherwise requires);

(b) references in that Part to the CMA carrying out functions under section 5 of the Enterprise Act 2002 are to be construed as including references to OFCOM exercising powers under section 1(3) of this Act to obtain, compile and keep under review information about matters relating to the carrying out of its functions.

(3A) Section 130A of the Enterprise Act 2002 is to have effect in its application in relation to OFCOM by virtue of subsections (1) and (2)—

(a) as if for subsection (1) of that section there were substituted—

(1) Where the Office of Communications— (a) is proposing to fulfil its duties under section 3(1) of the Communications Act 2003 by obtaining, compiling and keeping under review information in relation to a matter for the purposes mentioned in subsection (2), and (b) considers that the matter is one in respect of which it would be appropriate for it to exercise its powers under section 174 (investigation) in connection with deciding whether to make a reference under section 131, the Office of Communications must publish a notice under this section (referred to in this Part as a “market study notice”).

, and

(b) as if in subsection (2)(a) of that section, for “the acquisition or supply of goods or services of one or more than one description in the United Kingdom” there were substituted “commercial activities connected with communications matters (within the meaning given by section 369(1) of the Communications Act 2003)”.

(4) In subsections (2) and (3A) the references to activities connected with communications matters, so far as they are references to activities connected with any apparatus falling within paragraph (d) of section 369(1), include a reference to—

(a) the supply and export of any such apparatus; and

(b) the production or acquisition of any such apparatus for supply or export.

(5) Before the CMA or OFCOM first exercises in relation to any matter functions which are exercisable concurrently by virtue of this section, that person shall consult the other.

(6) Neither the CMA nor OFCOM shall exercise in relation to any matter functions which are exercisable concurrently by virtue of this section if functions which are so exercisable have been exercised in relation to that matter by the other.

(7) It shall be the duty of OFCOM, for the purpose of assisting a CMA group in carrying out an investigation on a market investigation reference made by OFCOM (under section 131 of the Enterprise Act 2002) by virtue of subsection (1), to give to the group —

(a) any information which is in OFCOM’s possession and relates to matters falling within the scope of the investigation and—

(i) is requested by the group for that purpose, or

(ii) is information which, in OFCOM’s opinion, it would be appropriate for that purpose to give to the group without any such request;

and

(b) any other assistance which the group may require, and which it is within OFCOM’s power to give, in relation to any such matters,

and the group , for the purposes of carrying out any such investigation, shall take into account any information given to it for that purpose under this subsection.

(7A) In subsection (7) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.

(8) If any question arises as to whether, by virtue of this section, any functions fall to be, or are capable of being, carried out by OFCOM in relation to any particular case, that question shall be referred to and determined by the Secretary of State.

(9) No objection shall be taken to anything done under Part 4 of the Enterprise Act 2002 (c. 40) by or in relation to OFCOM on the ground that it should have been done by or in relation to the CMA .

(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(11) Subject to subsection (12), section 3 of this Act (general duties) and section 29 of the Postal Services Act 2011 (duty to secure provision of universal postal service) do not apply in relation to anything done by OFCOM in the carrying out of their functions by virtue of this section.

(12) In the carrying out of any functions by virtue of this section OFCOM may nevertheless have regard to any of the matters in respect of which a duty is imposed by section 3(1) to (4) of this Act or section 29 of the Postal Services Act 2011 if it is a matter to which the CMA is entitled to have regard in the carrying out of those functions.

(13) In making any decision, or otherwise taking action, for the purposes of any of its functions that, by virtue of this section, are functions exercisable concurrently with the CMA, OFCOM must have regard to the need for making a decision, or taking action, as soon as reasonably practicable.

OFCOM’s functions under the Competition Act 1998

371

(1) The functions to which subsection (2) applies shall be concurrent functions of OFCOM and the CMA.

(2) This subsection applies to the functions of the CMA under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6) , 35C, 38(1) to (6) , 40B(1) to (4) and 51), so far as relating to—

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,

(b) conduct of the kind mentioned in section 18(1) of that Act, or

(c) transferred EU anti-trust commitments or transferred EU anti-trust directions (as defined in section 40ZA of that Act),

which relate to activities connected with communications matters.

(3) So far as necessary for the purposes of, or in connection with, the provisions of subsections (1) and (2), references to the CMA in Part 1 of the Competition Act 1998 (including references in provisions of the Enterprise Act 2002 applied by that Part) are to be read as including references to OFCOM, except—

(a) in sections 31D(1) to (6) , 35C, 38(1) to (6) , 40B(1) to (4), 51, 52(6) and (8) and 54, and

(b) where the context otherwise requires.

(4) In subsection (2), the reference to activities connected with communications matters, so far as it is a reference to activities connected with any apparatus falling within paragraph (d) of section 369(1), includes a reference to—

(a) the supply and export of any such apparatus; and

(b) the production or acquisition of any such apparatus for supply or export.

(5) In section 54 of the Competition Act 1998—

(a) in subsection (1) (definition of “regulator” for the purposes of Part 1 of that Act), for paragraph (a) there shall be substituted—

(a) the Office of Communications;

(b) in subsection (4) (power to make regulations about concurrent functions of the CMA and sectoral regulators), “or by Chapter V of Part I of the Transport Act 2000” there shall be inserted “ to this Act, by Chapter 5 of Part 1 of the Transport Act 2000 or by section 371 of the Communications Act 2003 ”.

(6) In paragraph 5 of Schedule 2 to the Competition Act 1998 (publication of list of networking arrangements under the 1990 Act excluded from the Chapter 1 prohibition)—

(a) in sub-paragraph (2), for “The Independent Television Commission (“ITC”)” there shall be substituted “ OFCOM ”; and

(b) in sub-paragraph (3), for “The ITC” there shall be substituted “ OFCOM ”.

(7) In section 59(1) of the Competition Act 1998 (interpretation of Part 1), after the definition of “Minister of the Crown” there shall be inserted—

“OFCOM” means the Office of Communications;

(8) OFCOM may carry out, in respect of activities connected with communications matters and concurrently with the CMA, the functions of the CMA under any of paragraphs 3, 7, 19(3) and 36 to 39 of Schedule 13 to the Competition Act 1998 (transitional provisions).

(9) If any question arises as to whether, by virtue of this section, any functions fall to be, or are capable of being, carried out by OFCOM in relation to a particular case, that question shall be referred to and determined by the Secretary of State.

(10) No objection shall be taken to anything done under by or in relation to OFCOM under the Competition Act 1998 (c. 41) on the ground that it should have been done by or in relation to the CMA.

(11) Subject to subsection (12), section 3 of this Act (general duties) and section 29 of the Postal Services Act 2011 (duty to secure provision of universal postal service) do not apply in relation to anything done by OFCOM in the carrying out of their functions by virtue of this section.

(12) In the carrying out of any functions by virtue of this section OFCOM may nevertheless have regard to any of the matters in respect of which a duty is imposed by section 3(1) to (4) of this Act or section 29 of the Postal Services Act 2011 if it is a matter to which the CMA is entitled to have regard in the carrying out of those functions.

(13) In making any decision, or otherwise taking action, for the purposes of any of its functions that—

(a) by virtue of this section, are functions exercisable concurrently with the CMA, and

(b) are functions within Schedule 4A to the Enterprise and Regulatory Reform Act 2013 by virtue of paragraph 5 of that Schedule,

OFCOM must have regard to the need for making a decision, or taking action, as soon as reasonably practicable.

Application of the Competition Act 1998 to news provision

372

(1) Section 194A of the 1990 Act (which modifies the Competition Act 1998 in relation to agreements relating to Channel 3 news provision) shall be amended as follows.

(2) In subsection (1) (meaning of “relevant agreement”)—

(a) for “section 31A(a)” there shall be substituted “ section 280 of the Communications Act 2003 ”; and

(b) for “section 31(2)” (in both places) there shall be substituted “ that section ”.

(3) In subsections (2), (6) and (7)(b)(i) (consultations with and notifications to the Office of Fair Trading), after the words “the OFT”, in each place where they occur, there shall be inserted “ and OFCOM ”.

(4) In subsection (3)(b)—

(a) for “section 31(2)” there shall be substituted “ section 280 of the Communications Act 2003 ”; and

(b) for “section 31(1) and (2)” there shall be substituted “ that section of that Act of 2003 ”.

(5) In subsection (5)(c) (declaration without notification), after “the OFT” there shall be inserted “ or OFCOM or both of them ”.

(6) In subsection (7) (restriction on exercise by Office of Fair Trading of Chapter III powers)—

(a) for “The OFT may not” there shall be substituted “ Neither the OFT nor OFCOM may ”; and

(b) for paragraph (a) there shall be substituted—

(a) the Secretary of State has been notified by the OFT or (as the case may be) by OFCOM of its or their intention to do so; and

(7) In subsection (8) (notice by Office of Fair Trading to the Secretary of State), for the words from the beginning to “assist” in paragraph (a) there shall be substituted—

(8) Where the OFT or OFCOM is or are proposing to exercise any Chapter III powers in respect of a relevant agreement, it or they must give the Secretary of State particulars of the agreement and such other information— (a) it considers or (as the case may be) they consider will assist

(8) In subsection (9), in the definition of “Chapter III powers”, for “given to the OFT by” there shall be substituted “ of the OFT and of OFCOM under ”.

Chapter 2 — Media mergers

Introductory

Repeal of existing newspaper merger regime

373

Sections 57 to 62 of the Fair Trading Act 1973 (c. 41) (newspaper merger references) shall cease to have effect.

Repeal of exclusion for newspaper mergers from general merger controls

374

Section 69 of the Enterprise Act 2002 (c. 40) (exclusion of newspaper mergers from references under Part 3 of that Act) shall cease to have effect.

Adaptation for media mergers of main merger regime

Media public interest considerations

375

(1) After subsection (2) of section 58 of the Enterprise Act 2002 (considerations specified as public interest considerations for the purpose of the main merger regime) there shall be inserted—

(2A) The need for— (a) accurate presentation of news; and (b) free expression of opinion; in newspapers is specified in this section. (2B) The need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in newspapers in each market for newspapers in the United Kingdom or a part of the United Kingdom is specified in this section. (2C) The following are specified in this section— (a) the need, in relation to every different audience in the United Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience; (b) the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and (c) the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003.

(2) After that section there shall be inserted, in Chapter 2 of Part 3—

(58A) (1) For the purposes of section 58 and this section an enterprise is a media enterprise if it consists in or involves broadcasting. (2) In the case of a merger situation in which at least one of the enterprises ceasing to be distinct consists in or involves broadcasting, the references in section 58(2C)(a) or this section to media enterprises include references to newspaper enterprises. (3) In this Part “newspaper enterprise” means an enterprise consisting in or involving the supply of newspapers. (4) Wherever in a merger situation two media enterprises serving the same audience cease to be distinct, the number of such enterprises serving that audience shall be assumed to be more immediately before they cease to be distinct than it is afterwards. (5) For the purposes of section 58, where two or more media enterprises— (a) would fall to be treated as under common ownership or common control for the purposes of section 26, or (b) are otherwise in the same ownership or under the same control, they shall be treated (subject to subsection (4)) as all under the control of only one person. (6) A reference in section 58 or this section to an audience shall be construed in relation to a media enterprise in whichever of the following ways the decision-making authority considers appropriate— (a) as a reference to any one of the audiences served by that enterprise, taking them separately; (b) as a reference to all the audiences served by that enterprise, taking them together; (c) as a reference to a number of those audiences taken together in such group as the decision-making authority considers appropriate; or (d) as a reference to a part of anything that could be taken to be an audience under any of paragraphs (a) to (c) above. (7) The criteria for deciding who can be treated for the purposes of this section as comprised in an audience, or as comprised in an audience served by a particular service— (a) shall be such as the decision-making authority considers appropriate in the circumstances of the case; and (b) may allow for persons to be treated as members of an audience if they are only potentially members of it. (8) In this section “audience” includes readership. (9) The power under subsection (3) of section 58 to modify that section includes power to modify this section.

(3) In section 127(1) of that Act (associated persons to be treated as one person), for the word “and” at the end of paragraph (a) there shall be substituted—

(aa) for the purposes of section 58(2C); and

Adaptation of role of OFT in initial investigations and reports

376

(1) In section 44(3)(b) of the Enterprise Act 2002 (c. 40) (initial report by OFT in public interest cases must include summary of representations about public interest considerations) after the word “concerned” there shall be inserted “ (other than a media public interest consideration) ”.

(2) After section 44(5) of that Act there shall be inserted—

(5A) The report may, in particular, contain a summary of any representations about the case which have been received by the OFT and which relate to any media public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45.

(3) After section 44(7) of that Act there shall be inserted—

(8) In this Part “media public interest consideration” means any consideration which, at the time of the giving of the intervention notice concerned— (a) is specified in section 58(2A) to (2C); or (b) in the opinion of the Secretary of State, is concerned with broadcasting or newspapers and ought to be specified in section 58. (9) In this Part “broadcasting” means the provision of services the provision of which— (a) is required to be licensed under Part 1 or 3 of the Broadcasting Act 1990 or Part 1 or 2 of the Broadcasting Act 1996; or (b) would be required to be so licensed if provided by a person subject to licensing under the Part in question. (10) In this Part “newspaper” means a daily, Sunday or local (other than daily or Sunday) newspaper circulating wholly or mainly in the United Kingdom or in a part of the United Kingdom. (11) The Secretary of State may by order amend subsections (9) and (10).

Additional investigation and report by OFCOM

377

After section 44 of the Enterprise Act 2002 (investigation and report by OFT in public interest cases) there shall be inserted—

(44A) (1) Subsection (2) applies where— (a) the Secretary of State has given an intervention notice in relation to a relevant merger situation; and (b) the intervention notice mentions any media public interest consideration. (2) OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case. (3) The report shall contain— (a) advice and recommendations on any media public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45; and (b) a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration. (4) OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.

Extension of special public interest regime

Extension of special public interest regime for certain media mergers

378

(1) In section 59 of the Enterprise Act 2002 (c. 40) (intervention by Secretary of State in special public interest cases), for subsections (3) and (4) (definition of “special merger situation”) there shall be substituted—

(3) For the purposes of this Part a special merger situation has been created if— (a) the condition mentioned in subsection (3A) is satisfied; and (b) immediately before the enterprises concerned ceased to be distinct— (i) the conditions mentioned in subsection (3B) were satisfied; (ii) the condition mentioned in subsection (3C) was satisfied; or (iii) the condition mentioned in subsection (3D) was satisfied. (3A) The condition mentioned in this subsection is that— (a) no relevant merger situation has been created because of section 23(1)(b) and (2)(b); but (b) a relevant merger situation would have been created if those enactments were disregarded. (3B) The conditions mentioned in this subsection are that— (a) at least one of the enterprises concerned was carried on in the United Kingdom or by or under the control of a body corporate incorporated in the United Kingdom; and (b) a person carrying on one or more of the enterprises concerned was a relevant government contractor. (3C) The condition mentioned in this subsection is that, in relation to the supply of newspapers of any description, at least one-quarter of all the newspapers of that description which were supplied in the United Kingdom, or in a substantial part of the United Kingdom, were supplied by the person or persons by whom one of the enterprises concerned was carried on. (3D) The condition mentioned in this subsection is that, in relation to the provision of broadcasting of any description, at least one-quarter of all broadcasting of that description provided in the United Kingdom, or in a substantial part of the United Kingdom, was provided by the person or persons by whom one of the enterprises concerned was carried on.

(2) After subsection (6) of that section there shall be inserted—

(6A) The Secretary of State may by order amend the conditions mentioned in subsection (3)(b)(ii) and (iii).

(3) After that section there shall be inserted—

(59A) (1) For the purpose of deciding whether the proportion of one-quarter mentioned in section 59(3C) or (3D) is fulfilled with respect to— (a) newspapers of any description, or (b) broadcasting of any description, the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate. (2) References in section 59(3C) to the supply of newspapers shall, in relation to newspapers of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate— (a) as references to any of those forms of supply taken separately; (b) as references to all those forms of supply taken together; or (c) as references to any of those forms of supply taken in groups. (3) For the purposes of subsection (2) the decision-making authority may treat newspapers as being the subject of different forms of supply whenever— (a) the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and (b) the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference. (4) References in section 59(3D) to the provision of broadcasting shall, in relation to broadcasting of any description which is the subject of different forms of provision, be construed in whichever of the following ways the decision-making authority considers appropriate— (a) as references to any of those forms of provision taken separately; (b) as references to all those forms of provision taken together; or (c) as references to any of those forms of provision taken in groups. (5) For the purposes of subsection (4) the decision-making authority may treat broadcasting as being the subject of different forms of provision whenever— (a) the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and (b) the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference. (6) The criteria for deciding when newspapers or broadcasting can be treated, for the purposes of section 59, as newspapers or broadcasting of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case. (7) In section 59 and this section “provision” and cognate expressions have the same meaning in relation to broadcasting as in Part 3 of the Communications Act 2003; but this subsection is subject to subsections (4) and (5) of this section.

Adaptation of role of OFT in special public interest regime

379

(1) Section 61 of the Enterprise Act 2002 (c. 40) (initial investigation and report by OFT in special public interest cases) shall be amended as follows.

(2) In subsection (3)(b) (report must include summary of representations about considerations specified in section 58) after the word “concerned” there shall be inserted “ (other than a consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C)) ”.

(3) In subsection (4) for the words “59(4)(b)” there shall be substituted “ 59(3B)(b) ”.

(4) After subsection (4) there shall be inserted—

(4A) The report may, in particular, contain a summary of any representations about the case which have been received by the OFT and which relate to any consideration which— (a) is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and (b) is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.

Additional investigation and report by OFCOM: special public interest cases

380

After section 61 of the Enterprise Act 2002 (initial investigation and report by OFT in special public interest cases) there shall be inserted—

(61A) (1) Subsection (2) applies where— (a) the Secretary of State has given a special intervention notice in relation to a special merger situation; and (b) the special intervention notice mentions any consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C). (2) OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case. (3) The report shall contain— (a) advice and recommendations on any consideration which— (i) is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and (ii) is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62; and (b) a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration. (4) OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.

New general functions in relation to media mergers

Public consultation in relation to media mergers

381

After section 104 of the Enterprise Act 2002 (c. 40) there shall be inserted—

(104A) (1) Subsection (2) applies where the Commission— (a) is preparing— (i) a report under section 50 on a reference which specifies a media public interest consideration; or (ii) a report under section 65 on a reference which specifies a consideration specified in section 58(2A) to (2C); and (b) is not under a duty to disregard the consideration concerned. (2) The Commission shall have regard (among other things) to the need to consult the public so far as they might be affected by the creation of the relevant merger situation or special merger situation concerned and so far as such consultation is practicable. (3) Any consultation of the kind mentioned in subsection (2) may be undertaken by the Commission by consulting such representative sample of the public or section of the public concerned as the Commission considers appropriate.

General information duties in relation to media mergers

382

(1) Section 105 of the Enterprise Act 2002 (general information duties of OFT and Competition Commission) shall be amended as follows.

(2) After subsection (1) there shall be inserted—

(1A) Where OFCOM decide to investigate a matter so as to make a report under section 44A or 61A, they shall, so far as practicable, take such action as they consider appropriate to bring information about the investigation to the attention of those who they consider might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.

(3) In subsection (2) (exclusion for merger notices) for the words “Subsection (1) does” there shall be substituted “ Subsections (1) and (1A) do ”.

(4) In subsection (3) (duty of OFT to give requested assistance to Competition Commission)—

(a) after the word “Commission”, where it occurs for the first time, there shall be inserted “ or OFCOM ”; and

(b) after the word “Commission”, where it occurs for the second, third and fourth time, there shall be inserted “ or (as the case may be) OFCOM ”.

(5) After subsection (3) there shall be inserted—

(3A) OFCOM shall give the Commission or the OFT— (a) such information in their possession as the Commission or (as the case may be) the OFT may reasonably require to enable the Commission or (as the case may be) the OFT to carry out its functions under this Part; and (b) any other assistance which the Commission or (as the case may be) the OFT may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of OFCOM to give.

(6) In subsection (4) (duty of OFT to give unrequested information to Competition Commission)—

(a) after the word “Commission”, where it occurs for the first time, there shall be inserted “ or OFCOM ”; and

(b) after the word “Commission”, where it occurs for the second and third time, there shall be inserted “ or (as the case may be) OFCOM ”.

(7) After subsection (4) there shall be inserted—

(4A) OFCOM shall give the Commission or the OFT any information in their possession which has not been requested by the Commission or (as the case may be) the OFT but which, in the opinion of OFCOM, would be appropriate to give to the Commission or (as the case may be) the OFT for the purpose of assisting it in carrying out its functions under this Part.

(8) In subsection (5) (duty of OFT and Competition Commission to give requested assistance to the Secretary of State) after the word “OFT”, in both places where it occurs, there shall be inserted “ , OFCOM ”.

(9) In subsection (6) (duty of OFT to give unrequested information to Secretary of State)—

(a) after the word “OFT”, where it occurs for the first time, there shall be inserted “ and OFCOM ”;

(b) for the word “its” there shall be substituted “ their ”; and

(c) after the word “OFT”, where it occurs for the second time, there shall be inserted “ or (as the case may be) OFCOM ”.

(10) In subsection (7) (duty to have regard to information given) for the words “or (4)” there shall be substituted “ , (3A), (4) or (4A) ”.

(11) After subsection (7) there shall be inserted—

(7A) OFCOM shall have regard to any information given to them under subsection (3) or (4); and the OFT shall have regard to any information given to it under subsection (3A) or (4A).

Advice and information in relation to media mergers

383

After section 106 of the Enterprise Act 2002 (c. 40) there shall be inserted—

(106A) (1) The Secretary of State may prepare and publish general advice and information about the considerations specified in section 58(2A) to (2C). (2) The Secretary of State may at any time publish revised, or new, advice or information. (3) Advice or information published under this section shall be prepared with a view to— (a) explaining the considerations specified in section 58(2A) to (2C) to persons who are likely to be affected by them; and (b) indicating how the Secretary of State expects this Part to operate in relation to such considerations. (4) Any advice or information published by the Secretary of State under this section shall be published in such manner as the Secretary of State considers appropriate. (5) In preparing any advice or information under this section, the Secretary of State shall consult the OFT, OFCOM, the Commission and such other persons as he considers appropriate.

General advisory functions of OFCOM in relation to media mergers

384

After section 106A of the Enterprise Act 2002 there shall be inserted—

(106B) (1) OFCOM may, in connection with any case on which they are required to give a report by virtue of section 44A or 61A, give such advice as they consider appropriate to the Secretary of State in relation to— (a) any report made in such a case by the Commission under section 50 or 65; and (b) the taking by the Secretary of State of enforcement action under Schedule 7. (2) OFCOM may, if requested to do so by the Secretary of State, give such other advice as they consider appropriate to the Secretary of State in connection with any case on which they are required to give a report by virtue of section 44A or 61A. (3) OFCOM shall publish any advice given by them under this section but advice given by them in relation to a report of the Commission under section 50 or 65 or related enforcement action shall not be published before the report itself is published.

Other general functions of OFCOM in relation to media mergers

385

After section 119 of the Enterprise Act 2002 (c. 40) there shall be inserted—

(119A) (1) OFCOM have the function of obtaining, compiling and keeping under review information about matters relating to the carrying out of their functions under this Part. (2) That function is to be carried out with a view to (among other things) ensuring that OFCOM have sufficient information to take informed decisions and to carry out their other functions effectively. (3) In carrying out that function OFCOM may carry out, commission or support (financially or otherwise) research. (4) Section 3 of the Communications Act 2003 (general duties of OFCOM) shall not apply in relation to functions of OFCOM under this Part.

Monitoring role for OFT in relation to media mergers

386

After section 119A of the Enterprise Act 2002 there shall be inserted—

(119B) (1) The OFT has the function of obtaining, compiling and keeping under review information about matters which may be relevant to the Secretary of State in deciding whether to give a special intervention notice mentioning a consideration specified in section 58(2A) to (2C). (2) That function is to be carried out with a view to (among other things) ensuring that the Secretary of State is aware of cases where, in the opinion of the OFT, he might wish to consider giving such a notice. (3) That function does not extend to obtaining, compiling or keeping under review information with a view to carrying out a detailed analysis in each case of the operation in relation to that case of the consideration specified in section 58(2A) to (2C).

Supplemental provisions of Chapter 2

Enforcement powers in relation to newspaper and other media mergers

387

In Schedule 8 to the Enterprise Act 2002 (provision that may be contained in certain enforcement orders) after paragraph 20 there shall be inserted—

(20A) (1) This paragraph applies in relation to any order— (a) which is to be made following the giving of— (i) an intervention notice which mentions a newspaper public interest consideration; (ii) an intervention notice which mentions any other media public interest consideration in relation to a relevant merger situation in which one of the enterprises ceasing to be distinct is a newspaper enterprise; (iii) a special intervention notice which mentions a consideration specified in section 58(2A) or (2B); or (iv) a special intervention notice which, in relation to a special merger situation in which one of the enterprises ceasing to be distinct is a newspaper enterprise, mentions a consideration specified in section 58(2C); and (b) to which the consideration concerned is still relevant. (2) The order may make such provision as the person making the order considers to be appropriate in all circumstances of the case. (3) Such provision may, in particular, include provision requiring a person to do, or not to do, particular things. (4) Provision made by virtue of this paragraph may, in particular, include provision— (a) altering the constitution of a body corporate (whether in connection with the appointment of directors, the establishment of an editorial board or otherwise); (b) requiring the agreement of the relevant authority or another person before the taking of particular action (including the appointment or dismissal of an editor, journalists or directors or acting as a shadow director); (c) attaching conditions to the operation of a newspaper; (d) prohibiting consultation or co-operation between subsidiaries. (5) In this paragraph “newspaper public interest consideration” means a media public interest consideration other than one which is such a consideration— (a) by virtue of section 58(2C); or (b) by virtue of having been, in the opinion of the Secretary of State, concerned with broadcasting and a consideration that ought to have been specified in section 58. (6) This paragraph is without prejudice to the operation of the other paragraphs of this Schedule in relation to the order concerned.

Alterations concerning newspaper panel of Competition Commission

388

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Further provision in connection with media mergers

389

(1) Schedule 16 (which contains further amendments in connection with media mergers) shall have effect.

(2) Sections 276(2) and (3) and 277 of the Enterprise Act 2002 (c. 40) (power to make transitional and consequential amendments etc.) shall apply in relation to this Chapter of this Part of this Act and its related repeals as they apply in relation to that Act.

(3) For the avoidance of doubt, the power conferred by virtue of subsection (2) by applying section 277 of the Act of 2002 includes the power to modify that Act.

(4) Section 402 shall not apply in relation to any power to make an order which is exercisable by the Secretary of State by virtue of subsection (2).

Part 6 — Miscellaneous and Supplemental

Annual report

Annual report on the Secretary of State’s functions

390

(1) The Secretary of State must prepare and lay before Parliament regular reports on the carrying out by him of the functions to which this section applies.

(2) This section applies to the Secretary of State’s functions under the following enactments—

(a) this Act;

(b) the Office of Communications Act 2002 (c. 11);

(d) the 1990 Act;

(e) the 1996 Act.

(f) the Online Safety Act 2023.

(3) The first report under this section must relate to the period which—

(a) begins with 19th March 2002 (the date of the passing of the Office of Communications Act 2002); and

(b) ends with the period of twelve months beginning with the first date to be appointed for the purposes of section 2 of this Act.

(4) Every subsequent report must relate to the period of twelve months beginning with the end of the period to which the previous report related.

(5) The obligation under this section to prepare and lay a report before Parliament is an obligation to do that as soon as reasonably practicable after the end of the period to which the report relates.

(6) Where a report for the purposes of this section relates to a period the whole or a part of which falls before the time when the whole of this Act is in force, the functions referred to in subsection (2) are to be taken as excluding all functions under the specified enactments that will have ceased to be functions of the Secretary of State when the whole of this Act is in force.

Review of media ownership

391

(1) It shall be the duty of OFCOM—

(a) to carry out regular reviews of the operation, taken together, of all the provisions to which this section applies; and

(b) to send a report on every such review to the Secretary of State.

(2) This section applies to—

(a) the provisions of Schedule 2 to the 1990 Act;

(b) the provision made by or under Schedule 14 to this Act;

(d) whatever provision (if any) has been made under section 283 of this Act; and

(e) the provisions of Part 3 of the Enterprise Act 2002 (c. 40) so far as they relate to intervention by the Secretary of State in connection with newspapers or other media enterprises.

(3) The first review must be carried out no more than three years after the commencement of this section, and subsequent reviews must be carried out at intervals of no more than three years.

(4) The report to the Secretary of State on a review must set out OFCOM’s recommendations, in consequence of their conclusions on the review, for the exercise by the Secretary of State of—

(a) his power to make an order under section 348(5);

(b) his powers to make orders under Schedule 14;

(d) his powers under sections 44(11), 58(3) and 59(6A) of the Enterprise Act 2002 (media mergers).

(5) OFCOM must publish every report sent by them to the Secretary of State under this section in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to be affected by it.

Guidelines as to penalties

Penalties imposed by OFCOM

392

(1) It shall be the duty of OFCOM to prepare and publish a statement containing the guidelines they propose to follow in determining the amount of penalties imposed by them under provisions contained in this Act or any other enactment apart from the Competition Act 1998 (c. 41) and Part 4 of the Enterprise Act 2002.

(2) OFCOM may from time to time revise that statement as they think fit.

(3) Where OFCOM make or revise their statement under this section, they must publish the statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(4) Before publishing a statement or revised statement under this section OFCOM must consult both—

(a) the Secretary of State, and

(b) such other persons as they consider appropriate,

about the guidelines they are proposing to include in the statement.

(5) Before determining how to publish a statement or revised statement under this section OFCOM must consult the Secretary of State.

(6) It shall be the duty of OFCOM, in determining the amount of any penalty to be imposed by them under this Act or any other enactment (apart from the Competition Act 1998 (c. 41) and Part 4 of the Enterprise Act 2002) to have regard to the guidelines contained in the statement for the time being in force under this section.

(7) References in this section to penalties imposed by OFCOM under provisions contained in this Act include references to penalties which the BBC is liable to pay to OFCOM by virtue of section 198(3).

Disclosure of information

General restrictions on disclosure of information

393

(1) Subject to the following provisions of this section, information with respect to a particular business which has been obtained in exercise of a power conferred by—

(a) this Act,

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) the 1996 Act, or

(e) the Online Safety Act 2023,

is not, so long as that business continues to be carried on, to be disclosed without the consent of the person for the time being carrying on that business.

(2) Subsection (1) does not apply to any disclosure of information which is made—

(a) for the purpose of facilitating the carrying out by OFCOM of any of their functions;

(b) for the purpose of facilitating the carrying out by any relevant person of any relevant function;

(d) for any of the purposes specified in section 17(2)(a) to (d) of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (criminal proceedings and investigations);

(e) for the purpose of any civil proceedings brought under or by virtue of this Act or the Online Safety Act 2023 or any of the enactments or instruments mentioned in subsection (5); or

(f) for the purpose of securing compliance with an international obligation of the United Kingdom.

(3) Each of the following is a relevant person for the purposes of this section—

(a) a Minister of the Crown and the Treasury;

(b) the Scottish Executive;

(d) the Competition and Markets Authority;

(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(f) the Consumer Panel;

(g) S4C;

(h) a local weights and measures authority in Great Britain;

(ha) a person appointed under—

(i) paragraph 1 of Schedule 3 to the Coroners and Justice Act 2009, or

(ii) section 2 of the Coroners Act (Northern Ireland) 1959 (c. 15 (N.I.));

(hb) the procurator fiscal, within the meaning of the enactment mentioned in subsection (5)(s);

(i) any other person specified for the purposes of this subsection in an order made by the Secretary of State.

(4) The following are relevant functions for the purposes of this section—

(a) any function conferred by or under this Act;

(b) any function conferred by or under any enactment or instrument mentioned in subsection (5);

(5) The enactments and instruments referred to in subsections (2) and (4) are—

(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ca) the Coroners Act (Northern Ireland) 1959;

(d) the Trade Descriptions Act 1968 (c. 29);

(e) the Fair Trading Act 1973 (c. 41);

(f) the Consumer Credit Act 1974 (c. 39);

(g) the Competition Act 1980 (c. 21);

(h) the Telecommunications Act 1984 (c. 12);

(i) the Consumer Protection Act 1987 (c. 43);

(j) the 1990 Act;

(k) the 1996 Act;

(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(m) the Competition Act 1998 (c. 41);

(n) the Enterprise Act 2002 (c. 40);

(na) the Wireless Telegraphy Act 2006;

(nb) Part 1 of the Coroners and Justice Act 2009;

(o) the Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987/2049 (N.I. 20));

(p) the Business Protection from Misleading Marketing Regulations 2008;

(q) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(r) Parts 3 and 4 of the Enterprise and Regulatory Reform Act 2013.

(s) the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2).

(t) the following provisions of the Digital Markets, Competition and Consumers Act 2024—

(i) Part 1;

(ii) Part 3;

(iii) ... Part 4;

(iv) Chapter 2 of Part 5.

(6) Nothing in this section—

(a) limits the matters that may be published under section 15, 26 , 134AB , 137A , 362AG(7), 362AW , 362BC(6) or 390 , or under section 149 of or Schedule 11 to the Online Safety Act 2023;

(aza) prevents the disclosure of information under section 24A , 24B , 25 or 105L;

(aa) limits the information that may be made available under section 76A;

(ab) limits the information that may be published by OFCOM under section 368OB;

(b) limits the matters that may be included in, or made public as part of, a report made by OFCOM by virtue of a provision of this Act or the Office of Communications Act 2002 (c. 11) or the Online Safety Act 2023;

(bza) prevents the publication or disclosure of a report or part of a report under section 105Z(6);

(bzb) prevents the publication or disclosure of a report or part of a report under section 105Z13(1);

(ba) limits the matters that may be published as part of a comparative overview carried out by OFCOM under section 134D;

(c) prevents the disclosure of anything for the purposes of a report of legal proceedings in which it has been publicly disclosed;

(d) applies to information that has been published , made public or made available as mentioned in paragraphs (a) to (c).

(7) Nothing in this section applies to information obtained in exercise of the powers conferred by section 196 of the 1990 Act (powers of entry and search).

(8) Information obtained by OFCOM in exercise of functions which are exercisable by them concurrently with the Competition and Markets Authority under Part 1 of the Competition Act 1998 is subject to Part 9 of the Enterprise Act 2002, and not to the preceding provisions of this section.

(9) Section 18 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (restriction on disclosure of information for overseas purposes) shall have effect in relation to a disclosure by virtue of subsection (2)(d) as it applies in relation to a disclosure in exercise of a power to which section 17 of that Act applies.

(10) A person who discloses information in contravention of this section is guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

(11) No order is to be made containing provision authorised by subsection (3) or (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(12) In this section “legal proceedings” means civil or criminal proceedings in or before any court, or proceedings before any tribunal established by or under any enactment.

Notifications etc. and electronic working

Service of notifications and other documents

394

(1) This section applies where provision made (in whatever terms) by or under an enactment specified in subsection (2) authorises or requires—

(a) a notification to be given to any person; or

(b) a document of any other description (including a copy of a document) to be sent to any person.

(2) Those enactments are—

(a) this Act , other than Part 3A , Part 3B or Part 4A so far as relating to notifications by OFCOM;

(b) the Office of Communications Act 2002 (c. 11);

(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) the 1990 Act; ...

(f) the 1996 Act.

(g) Part 3 of the Postal Services Act 2011.

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