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

(5) Sections 138 to 144 apply for the enforcement of a requirement under this section as they apply for the enforcement of requirements under section 135 or 136.

(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Appeals

Appeals against decisions by OFCOM, the Secretary of State etc.

192

(1) This section applies to the following decisions—

(a) a decision by OFCOM under this Part or any of Parts 1 to 3 of the Wireless Telegraphy Act 2006 that is not a decision specified in Schedule 8;

(b) a decision (whether by OFCOM or another) to which effect is given by a direction, approval or consent given for the purposes of a provision of a condition set under section 45;

(d) a decision by the Secretary of State to which effect is given by one of the following—

(i) a specific direction under section 5 that is not about the making of a decision specified in Schedule 8;

(ii) a restriction or condition set by regulations under section 109;

(iia) an order under section 124P;

(iii) a direction to OFCOM under section 132;

(iv) a specific direction under section 5 of the Wireless Telegraphy Act 2006 that is not about the making of a decision specified in Schedule 8.

(e) a decision by the CMA to which effect is given by an order made under section 193A.

(2) A person affected by a decision to which this section applies may appeal against it to the Tribunal.

(3) The means of making an appeal is by sending the Tribunal a notice of appeal in accordance with Tribunal rules.

(4) The notice of appeal must be sent within the period specified, in relation to the decision appealed against, in those rules.

(5) The notice of appeal must set out—

(a) the provision under which the decision appealed against was taken; and

(b) the grounds of appeal.

(6) The grounds of appeal must be set out in sufficient detail to indicate—

(a) to what extent (if any) the appellant contends that the decision appealed against was based on an error of fact or was wrong in law or both; and

(b) to what extent (if any) the appellant is appealing against the exercise of a discretion by OFCOM, by the Secretary of State , by the CMA or by another person.

(7) In this section and Schedule 8 references to a decision under an enactment—

(a) include references to a decision that is given effect to by the exercise or performance of a power or duty conferred or imposed by or under an enactment; but

(b) include references to a failure to make a decision, and to a failure to exercise a power or to perform a duty, only where the failure constitutes a failure to grant an application or to comply with any other form of request to make the decision, to exercise the power or to perform the duty;

and references in the following provisions of this Chapter to a decision appealed against are to be construed accordingly.

(8) For the purposes of this section and the following provisions of this Chapter a decision to which effect is given by the exercise or performance of a power or duty conferred or imposed by or under an enactment shall be treated, except where provision is made for the making of that decision at a different time, as made at the time when the power is exercised or the duty performed.

Reference of price control matters to the Competition Commission

193

(1) Tribunal rules must provide in relation to appeals under section 192(2) relating to price control that the price control matters arising in that appeal, to the extent that they are matters of a description specified in the rules, must be referred by the Tribunal to the CMA for determination.

(2) Where a price control matter is referred in accordance with Tribunal rules to the CMA for determination, the determination of the matter is to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, and , having regard to the principles to be applied by the Tribunal under section 194A(2), is to be performed—

(a) in accordance with the provision made by the rules;

(b) in accordance with directions given to the CMA by the Tribunal in exercise of powers conferred by the rules; and

(3) The provision that may be made by Tribunal rules about the determination of a price control matter referred to the CMA in accordance with the rules includes provision about the period within which that matter is to be determined by the CMA .

(4) Where the CMA determines a price control matter in accordance with Tribunal rules, they must notify the Tribunal of the determination they have made.

(5) The notification must be given as soon as practicable after the making of the notified determination.

(6) Where a price control matter arising in an appeal is required to be referred to the CMA under this section, the Tribunal, in deciding the appeal ..., must decide that matter in accordance with the determination of the CMA .

(7) Subsection (6) does not apply to the extent that the Tribunal decides, applying the principles applicable on an application for judicial review, that the determination of the CMA is a determination that would fall to be set aside on such an application.

(8) Section 117 of the Enterprise Act 2002 (c. 40) (offences of supplying false or misleading information) shall have effect in relation to information supplied to the CMA in connection with their functions under this section as it has effect in relation to information supplied to them in connection with their functions under Part 3 of that Act.

(9) For the purposes of this section an appeal relates to price control if the matters to which the appeal relates are or include price control matters.

(10) In this section and section 193A “price control matter” means a matter relating to the imposition of any form of price control by an SMP condition the setting of which is authorised by—

(a) section 87(9);

(b) section 91; or

Composition of Competition Commission for price control references

194

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Decisions of the Tribunal

195

(1) This section applies to an appeal against a decision referred to in section 192(1)(d)(i), (ii), (iia) or (iv).

(2) The Tribunal shall decide the appeal on the merits and by reference to the grounds of appeal set out in the notice of appeal.

(3) The Tribunal’s decision must include a decision as to what (if any) is the appropriate action for the Secretary of State to take in relation to the subject-matter of the decision under appeal.

(4) The Tribunal shall then remit the decision under appeal to the Secretary of State with such directions (if any) as the Tribunal considers appropriate for giving effect to its decision.

(5) The Tribunal must not direct the Secretary of State to take any action which he would not otherwise have power to take in relation to the decision under appeal.

(6) It shall be the duty of the Secretary of State to comply with every direction given under subsection (4).

(7) In the case of an appeal against a decision given effect to by a restriction or condition set by regulations under section 109, the Tribunal must take only such steps for disposing of the appeal as it considers are not detrimental to good administration.

(8) In its application to a decision of the Tribunal under this section, paragraph 1(2)(b) of Schedule 4 to the Enterprise Act 2002 (c. 40) (exclusion of commercial information from documents recording Tribunal decisions) is to have effect as if for the reference to the undertaking to which commercial information relates there were substituted a reference to any person to whom it relates.

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

Appeals from the Tribunal

196

(1) A decision of the Tribunal on an appeal under section 192(2) may itself be appealed.

(2) An appeal under this section—

(a) lies to the Court of Appeal or to the Court of Session; and

(b) must relate only to a point of law arising from the decision of the Tribunal.

(3) An appeal under this section may be brought by—

(a) a party to the proceedings before the Tribunal; or

(b) any other person who has a sufficient interest in the matter.

(4) An appeal under this section requires the permission of the Tribunal or of the court to which it is to be made.

(5) In this section references to a decision of the Tribunal include references to a direction given by it under section 195(4).

Interpretation of Chapter 3

197

(1) In this Chapter—

“the CMA” means the Competition and Markets Authority;

“network access” has the same meaning as in Chapter 1 of this Part;

“the Tribunal” means the Competition Appeal Tribunal; and

“Tribunal rules” means rules made under section 15 of the Enterprise Act 2002.

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part 3 — Television and Radio Services ETC

Chapter 1 — The BBC, C4C , S4C and the Gaelic media service

The BBC

Functions of OFCOM in relation to the BBC

198

(1) It shall be a function of OFCOM, to the extent that provision for them to do so is contained in—

(a) the BBC Charter and Agreement, and

(b) the provisions of this Act and of Part 5 of the 1996 Act,

to regulate the BBC.

(2) For the purposes of the carrying out of that function OFCOM—

(a) are to have such powers and duties as may be conferred on them by or under the BBC Charter and Agreement; and

(b) are entitled, to the extent that they are authorised to do so by the Secretary of State or under the terms of that Charter and Agreement, to act on his behalf in relation to that Charter and Agreement.

(2A) The BBC Charter and Agreement may in particular confer on OFCOM, as a power they are to have by virtue of subsection (2)(a), power to require any person to provide information for the purposes of the carrying out by OFCOM of their function under subsection (1).

(3) The BBC must pay OFCOM such penalties in respect of contraventions by the BBC of provision made by or under—

(a) this Part,

(aa) Part 4A, or

(b) the BBC Charter and Agreement,

as are imposed by OFCOM in exercise of powers conferred on them by that Charter and Agreement.

(4) The BBC are also to be liable to pay OFCOM such sums in respect of the carrying out by OFCOM of their functions in relation to the BBC as may be—

(a) agreed from time to time between the BBC and OFCOM; or

(b) (in default of agreement) fixed by the Secretary of State.

(5) The maximum penalty that may be imposed on the BBC on any occasion by OFCOM in exercise of a power conferred by virtue of the BBC Charter and Agreement is £250,000.

(6) The Secretary of State may by order substitute a different sum for the sum for the time being specified in subsection (5).

(7) No order is to be made containing provision authorised by subsection (6) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(8) It shall be the duty of OFCOM to have regard to their functions under this section when carrying out their functions under the 1990 Act, the 1996 Act and this Part in relation to services provided by persons other than the BBC.

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

C4C

Functions of C4C

199

(1) The activities that C4C are able to carry on include any activities which appear to them—

(a) to be activities that it is appropriate for them to carry on in association with the carrying out of their primary functions; and

(b) to be connected, otherwise than merely in financial terms, with activities undertaken by them for the carrying out of those functions.

(2) In subsection (1) “primary functions” means—

(za) the performance of C4C's duties under section 198A;

(a) securing the continued provision of Channel 4; and

(b) the fulfilment of the public service remit for that Channel under section 265.

(3) Section 24(5)(b) and (6) of the 1990 Act (power of C4C to establish, acquire an interest in or assist a qualifying company) shall cease to have effect.

(4) For sub-paragraphs (3) and (4) of paragraph 1 of Schedule 3 to the 1990 Act (power of C4C to do things incidental or conducive to the carrying out of their functions) there shall be substituted—

(3) The Corporation may do anything which appears to them to be incidental or conducive to the carrying out of their functions. (4) The powers of the Corporation under sub-paragraph (3) include power, to the extent that it appears to them incidental or conducive to the carrying out of their functions to do so— (a) to borrow money; (b) to carry on activities (other than those comprised in their duty to carry out their primary functions) through Channel 4 companies; and (c) to participate with others in the carrying on of any such activities.

(5) Schedule 9 (which makes provision for the approval by OFCOM, and for the enforcement, of arrangements made by C4C about the carrying on of their activities) shall have effect.

Removal of members of C4C

200

(1) In paragraph 3 of Schedule 3 to the 1990 Act (term of office of members of C4C), after sub-paragraph (2) there shall be inserted—

(2A) OFCOM may at any time, by notice to a member of the Corporation, terminate the appointment of that member. (2B) Before terminating a person’s appointment under sub-paragraph (2A), OFCOM must consult the Secretary of State.

(2) This section applies only to a member whose appointment was made, or last renewed, after the coming into force of this section.

Deficits and surpluses of C4C

201

(1) Sections 26 and 27 of the 1990 Act (revenue deficits of C4C to be funded by providers of Channel 3 services and application of excess revenues of C4C) shall cease to have effect.

(2) This section has effect in relation to a deficit or excess for a year ending after the commencement of this section.

Borrowing limit for C4C

202

(1) The Secretary of State may by order provide for a limit on the borrowing that C4C is allowed to undertake.

(2) The order may fix the limit either—

(a) by specifying the sum which the outstanding borrowing of C4C must not at any time exceed; or

(b) by providing a method of determining the sum which that borrowing must not exceed.

(3) C4C are not to borrow money if the effect of the borrowing would be to cause the amount of their outstanding borrowing to be, or to remain, in excess of the limit (if any) that is for the time being in force.

(4) For the purposes of this section the amount of C4C’s outstanding borrowing at any time is the aggregate amount outstanding at that time in respect of the principal of sums borrowed by them, but after allowing sums borrowed to repay existing loans to be applied for that purpose.

(5) Before making an order under this section, the Secretary of State must consult C4C.

(6) The consent of the Treasury is required for the making of an order under this section.

S4C (Sianel Pedwar Cymru)

Function of OFCOM in relation to the Welsh Authority

203

It shall be a function of OFCOM, to the extent that provision for them to do so is contained in this Act and Part 5 of the 1996 Act, to regulate the services provided by S4C.

Welsh Authority’s function of providing S4C and S4C Digital

204

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Powers to provide other services

205

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Other activities of Welsh Authority

206

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Welsh Authority finances

207

(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The power of S4C to do anything that appears to them to be conducive or incidental to the carrying out of their functions includes power, subject to subsection (4), to borrow money.

(4) S4C are not to borrow money except with the approval of the Secretary of State.

(5) The consent of the Treasury is to be required for the giving of an approval for the purposes of subsection (4).

(6) S4C are to be liable to pay OFCOM such sums in respect of the carrying out by OFCOM of their functions in relation to S4C as may be—

(a) agreed from time to time between S4C and OFCOM; or

(b) (in default of agreement) fixed by the Secretary of State.

(7) In section 61(4) of the 1990 Act (power of Secretary of State to increase amount of grant to the Welsh Authority), for “transmitting S4C and the service referred to in section 57(1A)(a), by order” there shall be substituted—

(a) providing services that are public services of the Authority (within the meaning of section 207 of the Communications Act 2003), and (b) arranging for the broadcasting or distribution of those services, by order

(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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

The Gaelic Media Service

208

(1) The body established for the purposes of section 183 of the 1990 Act (financing of programmes in Gaelic out of the Gaelic Television Fund) is hereby renamed Seirbheis nam Meadhanan Gàidhlig (the Gaelic Media Service).

(2) References in any instrument or other document to Comataidh Craolaidh Gaidhlig or to the Gaelic Broadcasting Committee are to be construed accordingly.

(3) For subsection (4) of that section there shall be substituted—

(3B) The functions of the Service shall be to secure that a wide and diverse range of high quality programmes in Gaelic are broadcast or otherwise transmitted so as to be available to persons in Scotland. (4) The Service may— (a) make grants out of the Fund, or (b) otherwise apply it, for any of the purposes of carrying out their functions or for any purpose connected with the carrying out of those functions. (4A) In carrying out their functions, the Service may finance, or engage in, any of the following— (a) the making of programmes in Gaelic with a view to those programmes being broadcast or otherwise transmitted so as to be available to persons in Scotland; (b) the provision of training for persons employed, or to be employed, in connection with the making of programmes in Gaelic to be so broadcast or otherwise transmitted; (c) research into the types of programmes in Gaelic that members of the Gaelic-speaking community would like to be broadcast or otherwise transmitted. (4B) But the Service are not to be entitled, for the purpose of carrying out their functions, to provide— (a) a Channel 3 service; (b) Channel 4; (c) Channel 5; (d) a national sound broadcasting service; (e) a national digital sound programme service; or (f) a television multiplex service or a radio multiplex service.

(4) For subsection (9) of that section there shall be substituted—

(9) In this section, section 183A and Schedule 19— “Channel 3 service”, “Channel 4” and “Channel 5” each has the same meaning as in Part 1; “national digital sound programme service” has the same meaning as in Part 2 of the Broadcasting Act 1996; “national sound broadcasting service” means a sound broadcasting service within the meaning of Part 3 which, under subsection (4)(a) of section 245 of the Communications Act 2003, is a national service for the purposes of that section; “Gaelic” means the Gaelic language as spoken in Scotland; “programme” includes any item included in a programme service; “radio multiplex service” has the same meaning as in Part 2 of the Broadcasting Act 1996; “the Service” means the body established under subsection (3) and known as Seirbheis nam Meadhanan Gàidhlig (the Gaelic Media Service); “television multiplex service” has the meaning given by section 241(1) of the Communications Act 2003 to a multiplex service within the meaning of Part 1 of the Broadcasting Act 1996; and a reference to being available to persons in Scotland includes a reference to being available both to persons in Scotland and to others.

Membership of the Service

209

After section 183 of the 1990 Act there shall be inserted—

(183A) (1) The Service shall consist of not more than twelve members. (2) The members of the Service are to be appointed by OFCOM (3) OFCOM must appoint one of the members to be the chairman of the Service. (4) The approval of the Secretary of State is required for the appointment of a person as a member of the Service, and for the appointment of a member as their chairman. (5) The members of the Service must include— (a) a member nominated by the BBC; (b) a member nominated by Highlands and Islands Enterprise; and (c) a member nominated by Bòrd Gàidhlig na h-Alba (the Gaelic Development Agency). (6) When appointing members of the Service, OFCOM must have regard to— (a) the desirability of having members of the Service who are proficient in written and spoken Gaelic; and (b) any guidance issued by the Secretary of State for the purposes of this section. (7) OFCOM must secure, so far as practicable, that the membership of the Service is such that the interests of each of the following are adequately represented— (a) the holders of licences to provide regional Channel 3 services for areas wholly in Scotland; (b) the holders of licences to provide regional Channel 3 services in respect of which determinations under section 184(4)(b) are for the time being in force; (c) the independent television and radio production industries in Scotland; (d) other persons and bodies concerned with the promotion and use of the Gaelic language, including those concerned with education in Gaelic and in Gaelic culture. (8) Schedule 19 to this Act shall have effect with respect to the Service. (9) In this section— - “Bòrd Gàidhlig na h-Alba” means the body of that name formed under section 5 of the National Heritage (Scotland) Act 1985; - “regional Channel 3 service” has the same meaning as in Part 1. (10) The Secretary of State may by order amend the reference in subsection (5) to Bòrd Gàidhlig na h-Alba (the Gaelic Development Agency)— (a) by substituting a reference to another body formed under section 5 of the National Heritage (Scotland) Act 1985 with functions relating to the promotion of Gaelic; or (b) for the purpose of giving effect to a change to the name of the body referred to in that subsection. (11) An order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Supplementary provisions about the Service

210

(1) Schedule 19 to the 1990 Act (supplementary provisions about the Gaelic Broadcasting Committee) shall be amended as follows.

(2) In paragraph 2 (tenure of office and remuneration)—

(a) in sub-paragraph (1), for “sub-paragraph (2)” there shall be substituted “ sub-paragraphs (1A) and (2) ”;

(b) after sub-paragraph (1) there shall be inserted—

(1A) A person is not to be appointed as a member of the Service for a term of more than four years (but a person so appointed shall be eligible for re-appointment at the end of his term of office).

(3) In paragraph 7 (employees of the Committee), after sub-paragraph (3) there shall be inserted—

(4) A person who is an employee of the Service is not to be eligible to be appointed as a member of the Service.

(4) After paragraph 8 (financial provision) there shall be inserted—

(8A) (1) The Service must pay all their receipts to OFCOM. (2) OFCOM must hold amounts received by them under this paragraph to the credit of the Gaelic Broadcasting Fund (and, accordingly, those amounts are not to be regarded as forming part of OFCOM’s revenues).

(5) In paragraph 12 (annual reports), after sub-paragraph (1) there shall be inserted—

(1A) The report must include a statement of how the Service are proposing to carry out their functions during the next financial year.

Chapter 2 — Regulatory Structure for Independent Television Services

Preliminary

Regulation of independent television services

211

(1) It shall be a function of OFCOM to regulate the following services in accordance with this Act, the 1990 Act and the 1996 Act—

(a) services falling within subsection (2) that are provided otherwise than by the BBC or S4C; and

(b) services falling within subsection (3) that are provided otherwise than by the BBC.

(2) The services referred to in subsection (1)(a) are—

(a) television broadcasting services that are provided from places in the United Kingdom with a view to their being broadcast otherwise than only from a satellite;

(b) television licensable content services that meet the appropriate condition in subsection (4);

(i) can be accessed by means of a regulated electronic programme guide and are not exempt foreign services, or

(ii) cannot be accessed by means of a regulated electronic programme guide but are provided by a person who is within the jurisdiction of the United Kingdom for the purposes of the European Convention on Transfrontier Television and included in broadcasts to which that Convention applies.

(d) restricted television services that are provided from places in the United Kingdom; and

(e) additional television services that are provided from places in the United Kingdom.

(3) The services referred to in subsection (1)(b) are—

(a) television multiplex services that are provided from places in the United Kingdom; and

(b) digital additional television services that meet the appropriate condition in subsection (4);

(4) For the purposes of subsections (2)(b) and (3)(b) “the appropriate condition” is—

(a) if or to the extent that the service does not consist of an electronic programme guide, that—

(i) the service can be accessed by means of a regulated electronic programme guide and is not an exempt foreign service, or

(ii) the service cannot be accessed by means of a regulated electronic programme guide but is provided by a person who is within the jurisdiction of the United Kingdom for the purposes of the European Convention on Transfrontier Television and included in broadcasts to which that Convention applies;

(b) if or to the extent that the service consists of an electronic programme guide, that the electronic programme guide is a regulated electronic programme guide.

(5) In this section—

(a) “electronic programme guide” has the meaning given by section 310(8),

(b) “regulated electronic programme guide” has the meaning given by section 211A, and

Abolition of function of assigning television frequencies

212

The Secretary of State shall cease to have any function under the 1990 Act or the 1996 Act of assigning frequencies for the purposes of any of the following—

(a) services falling to be licensed under Part 1 of the 1990 Act;

(b) S4C; or

Abolition of licensing for local cable systems

213

On and after the television transfer date no licence shall be required under Part 2 of the 1990 Act for the provision of a local delivery service.

Channels 3 and 5

Digital Channel 3 and Channel 5 licences

214

(1) This section applies to the grant by OFCOM, at any time on or after the television transfer date, of a licence under Part 1 of the 1990 Act to provide a Channel 3 service or to provide Channel 5.

(2) The licence must—

(a) be a licence to provide the licensed service with a view to its being broadcast in digital form; and

(b) contain such condition (if any) requiring the provider of the service to ensure that the whole or a part of the service is also provided for broadcasting in analogue form as OFCOM consider appropriate.

(3) The conditions included in a licence by virtue of subsection (2)(b) must be such as to enable effect to be given to any directions given from time to time by the Secretary of State to OFCOM about the continuance of the provision of services in analogue form.

(4) Where the licence contains a condition falling within subsection (2)(b), it must also contain a condition that—

(a) the programmes (apart from the advertisements) that are included in the service provided in analogue form, and

(b) the times at which they are broadcast,

are to be the same as in the case of, or of the specified part of, the service provided for broadcasting in digital form.

(5) The licence—

(a) must be a licence which continues in force, from the time from which it takes effect, until the end of the licensing period beginning or current at that time; and

(b) shall be renewable, on one or more occasions, under section 216.

(6) For the purposes of subsection (5) a licensing period , in relation to a licence, is—

(a) the period beginning with the commencement of this section and ending with the initial expiry date for that type of licence ; or

(b) any subsequent period of ten years beginning with the end of the previous licensing period for that type of licence .

(7) The licence must contain the conditions that OFCOM consider appropriate for the purpose of performing their duty under section 263.

(8) The conditions of the licence must also include conditions prohibiting the imposition, whether directly or indirectly, of the following—

(a) charges on persons in respect of their reception in the United Kingdom of the licensed service;

(b) charges on persons in respect of their reception in the United Kingdom of any service consisting in the provision of assistance for disabled people in relation to programmes included in the licensed service; and

(c) charges on persons in respect of their reception in the United Kingdom of any service (other than one mentioned in paragraph (b)) which is an ancillary service in relation to so much of the licensed service as is provided in digital form.

(9) It shall be unlawful to impose a charge in contravention of a condition imposed under subsection (8).

Replacement of existing Channel 3 and Channel 5 licences

215

(1) It shall be the duty of OFCOM to make an offer under this section to every person who, when the offer is made, is the holder of a licence (an “existing licence”)—

(a) to provide a Channel 3 service; or

(b) to provide Channel 5.

(2) The offer made to a person under this section—

(a) must be an offer to exchange his existing licence for a replacement licence; and

(b) must be made as soon as practicable after the television transfer date.

(3) The replacement licence offered must be one granted in accordance with the provisions of—

(a) Part 1 of the 1990 Act; and

(b) section 214 of this Act;

but sections 15 to 17A of the 1990 Act (award of licences) are not to apply in the case of the replacement licence.

(4) Subject to subsection (5), where OFCOM make an offer under this section to a person, the service which they are proposing to license by the replacement licence must be a service which—

(a) is provided with a view to its being broadcast in digital form; but

(b) subject to that and to any requirements of section 214, appears to OFCOM to be a service that is equivalent in all material respects to the service the provision of which in analogue form was authorised by the existing licence.

(5) An offer under this section may, to such extent as OFCOM think fit, propose the grant of a licence to provide a service for an area or at times which, though substantially the same as in the case of the existing licence, are not identical.

(6) The offer must propose the inclusion in the replacement licence of conditions as to the payment of amounts to OFCOM which require the payment of—

(a) the same amount in respect of each complete calendar year falling wholly or partly within the period for which the replacement licence is in force, and

(b) an amount equal to the same percentage of the qualifying revenue for each accounting period of the licence holder falling within that period,

as would have been payable under the existing licence had that licence continued in force until the end of the period for which the replacement licence is granted.

(7) That offer must also propose the conditions for allowing amounts paid for a period under the existing licence to be set off against liabilities for the same period arising under the replacement licence.

(8) An offer under this section must set out—

(a) the terms of the proposed replacement licence;

(b) the conditions on which OFCOM are proposing to grant the replacement licence;

(d) the date on which the proposed replacement licence will be granted if the offer is accepted;

(e) the time as from which it is proposed that that licence will take effect if the offer is accepted; and

(f) the time from which the existing licence will cease to have effect if the offer is not accepted.

(9) The times set out under subsection (8) must—

(a) in the case of the time set out under paragraph (e), be in the period of twelve months beginning with the television transfer date; and

(b) in the case of the time set out under paragraph (f), be in the period of eighteen months after the end of the period set out under paragraph (c) of that subsection.

(10) Where a person to whom an offer has been made under this section elects, by notification to OFCOM, to exchange his licence for the replacement licence offered to him—

(a) he is entitled, on the date set out in the offer, to be granted, in accordance with Part 1 of the 1990 Act and section 214 of this Act, a replacement licence under that Part in the terms, and on the conditions, so set out;

(b) the replacement licence shall come into force, and the existing licence cease to have effect, at the time specified in the offer, or such later time as OFCOM may, with the consent of that person, direct; and

(c) the service which he is authorised to provide by the replacement licence, so far as it is provided in digital form, shall be a qualifying service for the purposes of Part 1 of the 1996 Act.

(11) Where the person to whom an offer has been made under this section—

(a) does not elect, during the period for which the offer is open, to exchange the existing licence for the replacement licence, or

(b) rejects the offer before the end of that period,

the existing licence shall have effect as if the period for which it is to continue in force ended with the time specified in the offer for the purposes of subsection (8)(f).

(12) In this section “qualifying revenue” has the same meaning as in section 19 of the 1990 Act.

Renewal of Channel 3 and 5 licences

216

(1) The holder of—

(a) a licence to provide a Channel 3 service, or

(b) a licence to provide Channel 5,

may apply to OFCOM for the renewal of his licence for a period of ten years from the end of the licensing period current at the time of the application.

(2) An application for renewal may only be made in the period which—

(a) begins four years before the end of the current licensing period; and

(b) ends three months before the day that OFCOM have determined to be the day by which they would need to publish a tender notice if they were proposing to grant a fresh licence to take effect from the end of that period.

(3) A determination for the purposes of subsection (2)(b)—

(a) must be made at least one year before the day determined; and

(b) must be notified by OFCOM to every person who, at the time of the determination, holds a licence in respect of which there is right to apply for renewal under this section.

(4) Where OFCOM receive an application under this section for the renewal of a licence they must—

(a) decide whether to renew the licence; and

(b) notify the applicant of their decision.

(4A) If OFCOM decide to renew the licence they must—

(a) in the case of a licence to provide a Channel 3 service, determine in accordance with section 216A the area for which the licence will be renewed;

(b) in every case, determine in accordance with section 217 the financial terms on which the licence will be renewed; and

(5) Section 17(5) to (7) of the 1990 Act (suspect sources of funds) apply in relation to an applicant for a renewal under this section as they apply in relation to an applicant mentioned in section 17(5) of that Act, but as if references to the award of a licence were references to its renewal.

(6) OFCOM may decide not to renew the licence if they are not satisfied that the applicant (if his licence were renewed) would provide a service that, either on its own or together with other arrangements, complied with the requirements imposed under Chapter 4 of this Part by conditions relating to—

(a) the public service remit for the licensed service;

(b) programming quotas;

(d) programme production and regional programming.

(6A) OFCOM may also decide not to renew a licence to provide a Channel 3 service if, for the licensing period in question, they have renewed or propose to renew one or more other licences to provide a Channel 3 service for all of the area to which the licence relates.

(7) OFCOM may also decide not to renew the licence if they propose to grant a fresh licence for a service replacing the licensed service which would differ from the licensed service in—

(a) the area for which it would be provided; or

(b) the times of the day, or days of the week, between or on which it would be provided.

(8) In all cases in which—

(a) the applicant notifies OFCOM that he accepts the terms notified to him under subsection (4A)(c), and

(b) they are not required or allowed by subsections (5) to (7) to refuse a renewal,

they must grant the renewal as soon as reasonably practicable.

(9) But OFCOM must not grant a renewal under this section more than eighteen months before the end of the licensing period from the end of which the renewal will take effect.

(10) Where a licence is renewed under this section, it must be renewed on the same terms and conditions, subject only to such modifications as are required to give effect —

(a) to any determination under subsection (4A)(a);

(b) in accordance with the determination under subsection (4A)(b), to the requirements imposed by section 217(4).

(11) Nothing in this section requires OFCOM, following the receipt of an application for the renewal of a licence—

(a) to make a decision or determination, or

(b) to take any other step under this section,

at any time after an order under section 230 has come into force preventing the renewal of the licence.

(12) For the purposes of this section a licensing period , in relation to a licence, is—

(a) the period beginning with the commencement of this section and ending with the initial expiry date for that type of licence; or

(b) any subsequent period of ten years beginning with the end of the previous licensing period for that type of licence.

(13) In this section “tender notice” means a notice under section 15 of the 1990 Act.

Financial terms of licence renewed under s. 216

217

(1) The determination under section 216(4A)(b) must comprise—

(a) a determination of the amount which the holder of the renewed licence will be required by the conditions of that licence to pay to OFCOM in respect of the first complete calendar year falling within the renewal period; and

(b) a determination of the percentage of qualifying revenue for each accounting period of the licence holder falling within the renewal period which the holder of that licence will be required by those conditions to pay to OFCOM.

(2) The amount determined under subsection (1)(a) must be equal to the amount which, in OFCOM’s opinion, would have been the cash bid of the licence holder were the licence (instead of being renewed) to be granted for the period of the renewal on an application made in accordance with section 15 of the 1990 Act.

(3) For the purposes of subsection (1)(b)—

(a) different percentages may be determined for different accounting periods; and

(b) the percentages that may be determined for an accounting period include a nil percentage.

(4) The renewed licence is required, as renewed, to include conditions requiring the licence holder to pay to OFCOM—

(a) in addition to any fees required to be paid by virtue of section 4(1)(b) of the 1990 Act, but

(b) instead of the amounts payable under the corresponding provision applicable under the conditions of the licence to the period before the renewal takes effect,

the amounts specified in subsection (5).

(5) Those amounts are—

(a) in respect of the first complete calendar year falling within the renewal period, the amount determined under subsection (1)(a);

(b) in respect of each subsequent year falling wholly or partly within the renewal period, that amount increased by the appropriate percentage; and

(c) in respect of each accounting period of the licence holder falling within the renewal period, an amount representing a specified percentage of qualifying revenue for that accounting period.

(6) The percentage specified for the purposes of subsection (5)(c) in respect of an accounting period must be the amount determined for that period under subsection (1)(b).

(7) In this section—

“the appropriate percentage” and “qualifying revenue” each has the same meaning as in section 19 of the 1990 Act; and

“renewal period”, in relation to a licence, means the period for which the licence is in force by reason of its renewal.

...

Duty to secure the provision of a public teletext service

218

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

Licensing of the public teletext service

219

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

Delegation of provision of public teletext service

220

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

Replacement of existing public teletext provider’s licence

221

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

Renewal of public teletext licence

222

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

Financial terms of licence renewed under s. 222

223

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

Meaning of initial expiry date

Meaning of “initial expiry date”

224

(1) Subject to any postponement under this section, for the purposes of this Part the initial expiry date for the following types of licence is 31 December 2014—

(a) a licence to provide a Channel 3 service;

(b) a licence to provide Channel 5;

(2) The Secretary of State may (on one or more occasions) by order postpone the initial expiry date for one or more of the types of licence mentioned in subsection (1).

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Where the Secretary of State makes an order under this section at a time after he has fixed a date for digital switchover, the date to which the initial expiry date is postponed must be a date not less than eighteen months after the date for digital switchover.

(5) The Secretary of State must exercise his power to postpone the initial expiry date if it at any time appears to him that that date would otherwise fall within the period of eighteen months immediately following the date fixed for digital switchover.

(6) Where an order under this section extends a licensing period for which a licence has been granted in accordance with section 214 or 219, the 1990 Act and this Part shall have effect (subject to subsection (7)) as if the licence had originally been granted for the extended period.

(7) Where an order under this section extends the period for which a licence is to continue in force—

(a) that order shall not affect the earliest time at which an application for the renewal of that licence may be made in accordance with section 216(2)(a) or 222(2)(a);

(b) as soon as reasonably practicable after making the order, OFCOM must make such modification of any determination made by them in the case of that licence for the purposes of section 216(2)(b) or 222(2)(b) as they consider appropriate in consequence of the extension; and

(8) In this section a reference to the date for digital switchover is a reference to the date fixed by the Secretary of State for the purposes of this section as the date which appears to him, in consequence of directions given by him for the purposes of the conditions of the licences for the relevant public broadcasting services, to be the date after which none of those services will be broadcast to any significant extent in analogue form.

(9) In this section “the relevant public broadcasting service” means any of the following—

(a) the services comprised in Channel 3; and

(b) Channel 5.

Reviews relating to licensing of Channels 3 & 5 ...

Application for review of financial terms of replacement licences

225

(1) The holder of a replacement licence granted under section 215 or 221 may apply to OFCOM, at any time in the first or any subsequent review period, for a review of the financial terms on which that licence is held.

(2) For the purposes of this section the first review period is the period which—

(a) begins four years before the first notional expiry date; and

(b) ends with the day before the day that OFCOM have determined to be the one by which they would need to publish a tender notice if they were proposing to grant a fresh licence to take effect from the first notional expiry date.

(3) For the purposes of this section a subsequent review period in the case of a replacement licence is so much (if any) of the following period as falls before the end of the initial expiry date for that type of licence , namely, the period which—

(a) begins four years before a subsequent notional expiry date; and

(b) ends with the day before the day that OFCOM have determined to be the one by which they would need to publish a tender notice if they were proposing to grant a fresh licence to take effect from that notional expiry date.

(4) A determination for the purposes of subsection (2)(b) or (3)(b) in respect of a replacement licence—

(a) must be made at least one year before the day determined; and

(b) must be notified by OFCOM to the person who, at the time of the determination, holds the licence in question.

(5) No application under this section for a review of the financial terms on which a replacement licence is held is to be made—

(a) at any time when an application under section 226 for a review of those terms is pending; or

(b) at any time in the period of twelve months following the day on which a determination by OFCOM on such an application is notified to the licence holder.

(6) For the purposes of this section an application for a review under section 226 is pending from the time when the application is made until the end of the day on which OFCOM’s determination on the review is notified to the licence holder.

(7) In this section—

“the first notional expiry date”, in relation to a replacement licence, means the date with which (apart from this Act) the existing licence would have expired if not renewed;

“subsequent notional expiry date”, in relation to a replacement licence, means—in a case in which an application by the licence holder for a review under this section was made during the review period beginning four years before the last notional expiry date, the tenth anniversary of the date on which OFCOM’s determination on that review was notified to the licence holder; andin any other case, the tenth anniversary of the last notional expiry date;

“tender notice” means a notice under section 15(1) of the 1990 Act or (as the case may be) paragraph 1 of Schedule 10.

(8) In subsection (7) “existing licence” has the same meaning as in section 215 or (as the case may be) 221.

Application for review of financial terms in consequence of new obligations

226

(1) This section applies where an order is made under section 411 that brings section 272, 273 or 274 (or any two or more of them) into force for the purpose of including conditions in the regulatory regime for—

(a) a Channel 3 service; or

(b) Channel 5; ...

(2) The holder of a licence in which conditions mentioned in section 272, 273 or 274 will fall to be included when the order comes into force may apply to OFCOM, at any time in the review period, for a review of the financial terms on which the licence is held.

(3) For the purposes of this section the review period in the case of an order under section 411 is the period which—

(a) begins with the day on which the order is made; and

(b) ends with the time at which, by virtue of the order, one or more of sections 272, 273 and 274 come into force in the case of the licence in question.

(4) If in the case of the same order there is more than one time falling within subsection (3)(b), the review period ends with the later or latest of them.

Reviews under ss. 225 and 226

227

(1) This section applies where an application is made under section 225 or 226 for a review of the financial terms on which a licence is held.

(2) As soon as reasonably practicable after receiving the application, OFCOM must—

(a) determine the amount to be paid to them under the conditions of the licence for the first calendar year falling wholly or partly within the period under review to begin after the application date; and

(b) determine the percentage to be used for computing the payments to be made to them under those conditions in respect of each accounting period falling within the period under review to begin after that date.

(3) The amount determined under subsection (2)(a) must be equal to the amount which, in OFCOM’s opinion, would have been the cash bid of the licence holder were the licence being granted afresh on an application made in accordance with—

(a) section 15 of the 1990 Act (licences for Channel 3 service or Channel 5); or

(b) paragraph 3 of Schedule 10 to this Act.

(4) The determination required by subsection (2)(b) is a determination of the percentage of qualifying revenue for each accounting period that is to be paid to OFCOM.

(5) For the purposes of subsection (2)(b)—

(a) different percentages may be determined for different accounting periods; and

(b) the percentages that may be determined for an accounting period include a nil percentage.

(6) In making their determinations on an application under section 226 OFCOM are to have regard, in particular, to any additional costs that are likely to be incurred by the licence holder in consequence of the commencement of so much of section 272, 273 or 274 (or any two or more of them) as is brought into force by the commencement order in question.

(7) References in this section to qualifying revenue for an accounting period are to be construed—

(a) in the case of the holder of a licence to provide a Channel 3 service or Channel 5, in accordance with section 19 of and Part 1 of Schedule 7 to the 1990 Act; ...

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

(8) In this section—

“the application date”, in relation to a review, means the date of the making under section 225 or 226 of the application for the review; and

“the period under review”, in relation to a review of the financial terms of a licence, means so much of the period for which the licence will (if not renewed) continue in force after the application date.

Giving effect to reviews under ss. 225 and 226

228

(1) As soon as reasonably practicable after making a determination under section 227 on an application under section 225 or 226, OFCOM must give a notification of their determination to the applicant.

(2) The notification must set out—

(a) the determination made by OFCOM;

(b) the modifications of the applicant’s licence that are required to give effect to the determination;

(d) a subsequent date by which the applicant’s licence will cease to have effect if he does not.

(3) The modifications set out in accordance with subsection (2)(b) must secure that the amount falling to be paid under the conditions of the applicant’s licence for each calendar year subsequent to that for which an amount has been determined in accordance with section 227(2)(a) is the amount so determined as increased by the appropriate percentage.

(4) In the case of a determination on an application under section 225, the date specified in accordance with subsection (2)(d) must not fall before whichever is the earlier of —

(a) the next notional expiry date after the application for the review; and

(b) the end of the licensing period in which that application was made.

(5) Where the applicant notifies OFCOM that he accepts the determination—

(a) his licence is to have effect with the modifications set out in OFCOM’s notification; and

(b) all such adjustments by way of payment or repayment as may be necessary for giving effect to the modifications are to be made in respect of any payments already made for years or periods affected by the modifications.

(6) Where the applicant does not, before the date specified in accordance with paragraph (c) of subsection (2), notify OFCOM that he accepts the determination, his licence shall have effect as if the period for which it is to continue in force ended with the time specified in accordance with paragraph (d) of that subsection.

(7) Where the time at which a licence would cease to have effect in accordance with subsection (6) is the end of a licensing period, that subsection does not affect any rights of the licence holder with respect to the renewal of his licence from the end of that period.

(8) In this section—

“the appropriate percentage” has the same meaning as in section 19 of the 1990 Act;

“licensing period” , in relation to a licence, means—the period beginning with the commencement of this section and ending with the initial expiry date for that type of licence ; orany subsequent period of ten years beginning with the end of the previous licensing period for that type of licence ;

“notional expiry date” means a first or subsequent notional expiry date within the meaning of section 225.

Report in anticipation of new licensing round

229

(1) OFCOM must, in anticipation of the end of each licensing period for a type of relevant licence—

(a) prepare a report under this section; and

(b) submit it to the Secretary of State no later than thirty months before the end of that period.

(2) A report under this section must set out OFCOM’s opinion on the effect of each of the matters mentioned in subsection (3) on the capacity of the holder or holders of that type of licence to contribute, in the next licensing period, to the fulfilment of the public service remit for television in the United Kingdom at a cost to the licence holder or holders that is commercially sustainable.

(3) Those matters are—

(a) the arrangements that (but for an order under section 230) would allow for the renewal of that type of licence from the end of the current licensing period; and

(b) the conditions included in the regulatory regimes for the services provided under that type of licence.

(4) A report under this section must also include the recommendations (if any) which OFCOM consider, in the light of the opinion set out in the report, should be made to the Secretary of State for the exercise by him of—

(a) his power under section 230; or

(b) any of the powers to make statutory instruments that are conferred on him by Chapter 4 of this Part.

(4A) Subsection (5) applies where the Secretary of State—

(a) receives a report under this section in anticipation of the end of a licensing period for a type of relevant licence, and

(b) subsequently makes an order under section 224 extending the licensing period for that type of licence.

(5) Where this subsection applies—

(a) the Secretary of State may require OFCOM to prepare a supplementary report in the light of the postponement of the beginning of the next licensing period for that type of licence; and

(b) it shall be the duty of OFCOM, within such period as may be specified by the Secretary of State, to prepare the required supplementary report and to submit it to him.

(6) In this section—

“licensing period” , in relation to a licence, means—the period beginning with the commencement of this section and ending with the initial expiry date for that type of licence; orany subsequent period of ten years beginning with the end of the previous licensing period for that type of licence;

“relevant licence” means—a licence to provide a Channel 3 service; or a licence to provide Channel 5; ......

Orders suspending rights of renewal

230

(1) This section applies where the Secretary of State has received and considered a report submitted to him by OFCOM under section 229.

(2) If—

(a) the report contains a recommendation by OFCOM for the making of an order under this section, or

(b) the Secretary of State considers, notwithstanding the absence of such a recommendation, that it would be appropriate to do so,

he may by order provide that a licence for the time being in force that is of a description specified in the order is not to be renewable under section 216 or 222 from the end of the licensing period in which he received the report (but see subsection (7)) .

(3) An order under this section preventing the renewal of a licence from the end of a licensing period must be made at least eighteen months before the end of that period.

(4) The Secretary of State is not to make an order under this section preventing the renewal of a licence from the end of the initial licensing period unless he has fixed a date before the end of that period as the date for digital switchover.

(5) Where the Secretary of State postpones the date for digital switchover after making an order under this section preventing the renewal of a licence from the end of the initial licensing period, the order shall have effect only if the date to which digital switchover is postponed falls before the end of that period.

(6) Subsection (5) does not affect the power of the Secretary of State to make another order under this section after postponing the date for digital switchover.

(7) An order under this section with respect to a Channel 3 licence must be an order of one of the following descriptions—

(a) an order applying to every licence to provide a Channel 3 service;

(b) an order applying to every licence to provide a national Channel 3 service; or

(8) An order under this section does not affect—

(a) the person to whom a licence may be granted on an application made under section 15 of the 1990 Act or under paragraph 3 of Schedule 10 to this Act; or

(b) rights of renewal in respect of a licence first granted so as to take effect from the beginning of a licensing period beginning after the making of the order, or from a subsequent time.

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

(10) Subsection (8) of section 224 applies for construing references in this section to the date for digital switchover as it applies for the purposes of that section.

(11) In this section—

“initial licensing period” , in relation to a licence, means the licensing period ending with the initial expiry date for that type of licence ; and

“licensing period” has the same meaning as in section 229.

Replacement of Channel 4 licence

231

(1) On the commencement of this subsection—

(a) Channel 4 shall cease to be licensed under the licence in force for the purposes of section 24(3) of the 1990 Act immediately before the commencement of this subsection; and

(b) a licence granted for those purposes in accordance with the following provisions of this section shall come into force as the licence under which Channel 4 is licensed.

(2) It shall be the duty of OFCOM, as soon as practicable after the television transfer date—

(a) to prepare a draft of a licence under Part 1 of the 1990 Act to replace the licence that is likely to be in force for the purposes of section 24(3) of the 1990 Act when subsection (1) of this section comes into force;

(b) to notify C4C of the terms and conditions of the replacement licence they propose; and

(c) after considering any representations made by C4C, to grant such a replacement licence to C4C so that it takes effect in accordance with paragraph (b) of subsection (1) of this section.

(3) A replacement licence proposed or granted under this section—

(a) must be a licence to provide a service with a view to its being broadcast in digital form; and

(b) must contain such conditions (if any) requiring C4C to ensure that the whole or a part of Channel 4 is also provided for broadcasting in analogue form as OFCOM consider appropriate.

(4) The conditions included in a licence by virtue of subsection (3)(b) must be such as to enable effect to be given to any directions given from time to time by the Secretary of State to OFCOM about the continuance of the provision of services in analogue form.

(5) Where a replacement licence proposed or granted under this section contains a condition falling within subsection (3)(b), it must also contain a condition that—

(a) the programmes (apart from the advertisements) that are included in the service provided in analogue form, and

(b) the times at which they are broadcast,

are to be the same as in the case of, or of the specified part of, the service provided for broadcasting in digital form.

(6) The terms of a replacement licence proposed or granted under this section must provide for it to continue in force until the end of 2014.

(7) But—

(a) such a licence may be renewed, on one or more occasions, for such period as OFCOM may think fit in relation to the occasion in question; and

(b) the provisions of this section (apart from subsections (1), (2) and (6)) are to apply in the case of a licence granted by way of a renewal of a licence granted under this section as they apply in the case of the replacement licence.

(8) The conditions of a replacement licence proposed or granted under this section must include the conditions that OFCOM consider appropriate for the purpose of performing their duty under section 263.

(9) The conditions of such a licence must also include a condition prohibiting the imposition, whether directly or indirectly, of the following—

(a) charges on persons in respect of their reception in the United Kingdom of Channel 4;

(b) charges on persons in respect of their reception in the United Kingdom of any service consisting in the provision of assistance for disabled people in relation to programmes included in Channel 4; and

(c) charges on persons in respect of their reception in the United Kingdom of any service (other than one mentioned in paragraph (b)) which is an ancillary service in relation to so much of Channel 4 as is provided in digital form.

(10) It shall be unlawful to impose a charge in contravention of a condition falling within subsection (9).

Television licensable content services

Meaning of “television licensable content service”

232

(1) In this Part “television licensable content service” means (subject to section 233) any service , or dissociable section of a service, falling within subsection (2) in so far as it is provided with a view to its availability for reception by members of the public being secured by one or more of the following means—

(a) the broadcasting of the service or dissociable section of the service (whether by the person providing it or by another) from a satellite; ...

(aa) the broadcasting of the service or dissociable section of the service (whether by that person or by another) by means of a radio multiplex service; or

(b) the distribution of the service or dissociable section of the service (whether by that person or by another) by any means involving the use of an electronic communications network.

(2) A service , or dissociable section of a service, falls within this subsection if it—

(a) is provided (whether in digital or in analogue form) as a service that is to be made available for reception by members of the public; and

(b) consists of or has as its principal purpose the provision of television programmes or electronic programme guides, or both.

(3) Where—

(a) a service, or dissociable section of a service, consisting of television programmes, an electronic programme guide or both (“the main service”) is provided by a person as a service to be made available for reception by members of the public, and

(b) that person provides the main service with other services or facilities that are ancillary to, or otherwise relate to, the main service and are also provided so as to be so available or in order to make a service so available,

subsection (1) has effect as if the main service and such of the other services or facilities as are relevant ancillary services and are not two-way services constituted a single service falling within subsection (2).

(4) Where a person providing the main service provides it with a facility giving access to another service, the other service shall also be taken for the purposes of this section as provided by that person with the main service only if what is comprised in the other service is something over which that person has general control.

(5) A service is a two-way service for the purposes of this section if it is provided by means of an electronic communications network and an essential feature of the service is that the purposes for which it is provided involve the use of that network, or a part of it, both—

(a) for the transmission of visual images or sounds (or both) by the person providing the service to users of the service; and

(b) for the transmission of visual images or sounds (or both) by those users for reception by the person providing the service or by other users of the service.

(6) In this section—

“electronic programme guide” means a service which consists of—the listing or promotion, or both the listing and the promotion, of some or all of the programmes included in any one or more programme services the providers of which are or include persons other than the provider of the guide; anda facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide;

“relevant ancillary service”, in relation to the main service, means a service or facility provided or made available by the provider of the main service that consists of or gives access to—assistance for disabled people in relation to some or all of the programmes included in the main service;a service (apart from advertising) which is not an electronic programme guide but relates to the promotion or listing of programmes so included; orany other service (apart from advertising) which is ancillary to one or more programmes so included and relates directly to their contents.

Services that are not television licensable content services

233

(1) A service , or dissociable section of a service, is not a television licensable content service to the extent that it is provided with a view to its being broadcast by means of a television multiplex service or a general multiplex service .

(2) A service , or dissociable section of a service, is not a television licensable content service to the extent that it consists of a service the provision of which is authorised by—

(a) a licence to provide a television broadcasting service;

(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; or

(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) A service , or dissociable section of a service, is not a television licensable content service if it is a two-way service (within the meaning of section 232).

(5) A service , or dissociable section of a service, is not a television licensable content service if—

(a) it is distributed by means of an electronic communications network only to persons all of whom are on a single set of premises; and

(b) that network is wholly within those premises and is not connected to an electronic communications network any part of which is outside those premises.

(6) For the purposes of subsection (5)—

(a) a set of premises is a single set of premises if, and only if, the same person is the occupier of all the premises; and

(b) two or more vehicles are capable of constituting a single set of premises if, and only if, they are coupled together.

(7) A service , or dissociable section of a service, is not a television licensable content service if it is provided for the purpose only of being received by persons who have qualified as users of the service by reason of being—

(a) persons who have a business interest in the programmes included in the service; or

(b) persons who are to receive the programmes for the purpose only of showing them to persons falling within sub-paragraph (a) or to persons all of whom are on the business premises of the person receiving them.

(8) For the purposes of subsection (7) a person has a business interest in programmes if he has an interest in receiving or watching them—

(a) for the purposes of a business carried on by him; or

(b) for the purposes of his employment.

(9) In this section—

“business premises”, in relation to a person, means premises at or from which any business of that person is carried on;

“premises” includes a vehicle;

“vehicle” includes a vessel, aircraft or hovercraft.

(10) References in this section, in relation to a person, to a business include references to—

(a) any business or other activities carried on by a body of which he is a member and the affairs of which are managed by its members; and

(b) the carrying out of any functions conferred on that person, or on any such body, by or under any enactment.

Modification of ss. 232 and 233

234

(1) The Secretary of State may by order modify any of the provisions of section 232 or 233 if it appears to him appropriate to do so having regard to any one or more of the following—

(a) the protection which, taking account of the means by which the programmes and services are received or may be accessed, is expected by members of the public as respects the contents of television programmes;

(b) the extent to which members of the public are able, before television programmes are watched or accessed, to make use of facilities for exercising control, by reference to the contents of the programmes, over what is watched or accessed;

(d) the financial impact for providers of particular services of any modification of the provisions of that section; and

(e) technological developments that have occurred or are likely to occur.

(2) The Secretary of State may also by order provide, in cases where it otherwise appears to him appropriate to do so, that a description of service specified in the order is not to be treated as a television licensable content service for the purposes of the provisions of this Act that are so specified.

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

Licensing of television licensable content services

235

(1) The licence that is required for the purposes of section 13 of the 1990 Act in respect of a television licensable content service is a licence granted under Part 1 of that Act on an application complying with this section.

(2) An application for a licence to provide a television licensable content service—

(a) must be made in such manner,

(b) must contain such information about the applicant, his business and the service he proposes to provide, and

as OFCOM may determine.

(3) Where an application is made to OFCOM in accordance with subsection (2) for a licence to provide a television licensable content service, OFCOM are entitled to refuse the application only if—

(a) they are required to do so by section 3(3) of the 1990 Act (licences to be held only by fit and proper persons);

(b) they are required to do so by section 5 of the 1990 Act (restrictions on the holding of licences); or

(c) they are satisfied that, if the application were to be granted, the provision of the service would be likely to involve contraventions of—

(i) standards set under section 319 of this Act; or

(ii) the provisions of a code of practice in force under Part 5 of the 1996 Act (fairness).

(4) The provision of more than one television licensable content service shall require a separate licence under Part 1 of the 1990 Act to be granted and held in respect of each service.

(5) A single licence to provide a television licensable content service may authorise the provision of a service which consists (to any extent) of different programmes to be broadcast simultaneously, or virtually so.

(6) A licence to provide a television licensable content service shall continue in force until such time as it is surrendered or is revoked in accordance with any of the provisions of this Chapter or of the 1990 Act.

(7) A licence to provide a television licensable content service must contain such conditions as OFCOM consider appropriate for requiring the licence holder—

(a) on entering into any agreement with the provider of a radio multiplex service for the provision of a television licensable content service to be broadcast by means of that multiplex service, to notify OFCOM—

(i) of the identity of the radio multiplex service;

(ii) of the period during which the service will be provided; and

(iii) where under the agreement he will be entitled to the use of a specified amount of digital capacity, of that amount;

(b) when any such agreement is varied so far as it relates to any of the matters mentioned in paragraph (a)(i), (ii) or (iii), to notify OFCOM of the variation so far as relating to those matters; and

(c) where he is providing a television licensable content service to the provider of a radio multiplex service in accordance with such an agreement as is mentioned in paragraph (a) but intends to cease doing so, to notify OFCOM of that fact.

(8) A licence to provide a television licensable content service which authorises the provision of an electronic programme guide (“the guide”) must also include such conditions as OFCOM consider appropriate for ensuring that, at any time when the guide is a regulated electronic programme guide as defined by section 211A, the only television programme services that are listed or promoted by, or which can be accessed through, the guide are television programme services that—

(a) are provided by or under a licence under this Part, or

(b) do not fall, in pursuance of section 211(1) of the Communications Act 2003, to be regulated by OFCOM.

Direction to licensee to take remedial action

236

(1) This section applies if OFCOM are satisfied—

(a) that the holder of a licence to provide a television licensable content service has contravened a condition of the licence; and

(b) that the contravention can be appropriately remedied by the inclusion in the licensed service of a correction or a statement of findings (or both).

(2) OFCOM may direct the licence holder to include a correction or a statement of findings (or both) in the licensed service.

(3) A direction may require the correction or statement of findings to be in such form, and to be included in programmes at such time or times, as OFCOM may determine.

(4) OFCOM are not to give a person a direction under this section unless they have given him a reasonable opportunity of making representations to them about the matters appearing to them to provide grounds for the giving of the direction.

(5) Where the holder of a licence includes a correction or a statement of findings in the licensed service in pursuance of a direction under this section, he may announce that he is doing so in pursuance of such a direction.

(6) If OFCOM are satisfied that the inclusion of a programme in a television licensable content service involved a contravention of a condition of the licence to provide that service, they may direct the holder of the licence not to include that programme in that service on any future occasion.

(7) Where OFCOM—

(a) give a direction to a BBC company under subsection (2), or

(b) receive representations from a BBC company by virtue of subsection (4),

they must send a copy of the direction or representations to the Secretary of State.

(8) For the purposes of this section a statement of findings, in relation to a case in which OFCOM are satisfied that the holder of a licence has contravened the conditions of his licence, is a statement of OFCOM’s findings in relation to that contravention.

Penalties for contravention of licence condition or direction

237

(1) If OFCOM are satisfied that the holder of a licence to provide a television licensable content service—

(a) has contravened a condition of the licence, or

(b) has failed to comply with a direction given by OFCOM under or by virtue of a provision of this Part, Part 1 of the 1990 Act or Part 5 of the 1996 Act,

they may serve on him a notice requiring him to pay them, within a specified period, a specified penalty.

(2) The amount of the penalty under this section must not exceed the maximum penalty given by subsection (3).

(3) The maximum penalty is whichever is the greater of—

(a) £250,000; and

(b) 5 per cent. of the qualifying revenue for the licence holder’s last complete accounting period falling within the period for which his licence has been in force (“the relevant period”).

(4) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (3) is to be construed as referring to 5 per cent of the amount which OFCOM estimate will be the qualifying revenue for that accounting period.

(5) Section 19(2) to (6) of the 1990 Act and Part 1 of Schedule 7 to that Act (calculation of qualifying revenue), with any necessary modifications, are to apply for the purposes of subsection (3) as they apply for the purposes of Part 1 of that Act.

(6) OFCOM are not to serve a notice on a person under subsection (1) unless they have given him a reasonable opportunity of making representations to them about the matters appearing to them to provide grounds for the service of the notice.

(7) Where OFCOM—

(a) serve a notice on a BBC company under subsection (1), or

(b) receive representations from a BBC company by virtue of subsection (6),

they must send a copy of the notice or representations to the Secretary of State.

(8) An exercise by OFCOM of their powers under subsection (1) does not preclude any exercise by them of their powers under section 236 in respect of the same contravention.

(9) The Secretary of State may by order substitute a different sum for the sum for the time being specified in subsection (3)(a).

(10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Revocation of television licensable content service licence

238

(1) OFCOM must serve a notice under subsection (2) on the holder of a licence to provide a television licensable content service if they are satisfied—

(a) that the holder of the licence is in contravention of a condition of the licence or is failing to comply with a direction given by them under or by virtue of any provision of this Part, Part 1 of the 1990 Act or Part 5 of the 1996 Act; and

(b) that the contravention or failure, if not remedied, would justify the revocation of the licence.

(2) A notice under this subsection must—

(a) state that OFCOM are satisfied as mentioned in subsection (1);

(b) specify the respects in which, in their opinion, the licence holder is contravening the condition or failing to comply with the direction; and

(c) state that OFCOM will revoke the licence unless the licence holder takes, within such period as is specified in the notice, such steps to remedy the failure as are so specified.

(3) If, at the end of the period specified in a notice under subsection (2), OFCOM are satisfied—

(a) that the person on whom the notice was served has failed to take the steps specified in it, and

(b) that it is necessary in the public interest to revoke his licence,

they shall serve a notice on him revoking his licence.

(4) If OFCOM are satisfied in the case of a licence to provide a television licensable content service—

(a) that the holder of the licence has ceased to provide the licensed service, and

(b) that it is appropriate for them to do so,

they shall serve a notice on him revoking his licence.

(5) If OFCOM are satisfied—

(a) that the holder of a licence to provide a television licensable content service has provided them, in connection with his application for the licence, with information which was false in a material particular, or

(b) that, in connection with his application for the licence, the holder of such a licence withheld any material information with the intention of causing them to be misled,

they may serve a notice on him revoking his licence.

(6) A notice under this section revoking a licence to provide a television licensable content service takes effect as from the time when it is served on the licence holder.

(7) OFCOM are not to serve a notice on a person under this section unless they have given him a reasonable opportunity of making representations to them about the matters in respect of which it is served.

(8) Where OFCOM—

(a) serve a notice on a BBC company under this section, or

(b) receive representations from a BBC company by virtue of subsection (7),

they must send a copy of the notice or representations to the Secretary of State.

(9) Nothing in this section applies to the revocation of a licence in exercise of the power conferred by section 239.

Action against licence holders who incite crime or disorder

239

(1) OFCOM must serve a notice under subsection (2) on the holder of a licence to provide a television licensable content service if they are satisfied—

(a) that the holder of the licence has included in the service one or more programmes containing material likely to encourage or to incite the commission of crime, or to lead to disorder;

(b) that, in doing so, he has contravened conditions contained by virtue of Chapter 4 of this Part in the licence to provide that service; and

(2) A notice under this subsection must—

(a) state that OFCOM are satisfied as mentioned in subsection (1);

(b) specify the respects in which, in their opinion, the licence holder has contravened the condition mentioned in paragraph (b) of that subsection;

(c) state that OFCOM may revoke the licence after the end of the period of twenty-one days beginning with the day on which the notice is served on the licence holder; and

(d) inform the licence holder of his right to make representations to OFCOM within that period about the matters appearing to OFCOM to provide grounds for revoking the licence.

(3) The effect of a notice under subsection (2) shall be to suspend the licence as from the time when the notice is served on the licence holder until either—

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