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

(1) It shall be the duty of OFCOM, at such intervals as they consider appropriate, to carry out a review of so much of each of the following as has effect for a competition purpose—

(a) every code made or approved by them under or for the purposes of a broadcasting provision;

(b) the guidance issued by them under or for the purposes of broadcasting provisions; and

(2) Before modifying or revoking, or withdrawing their approval from, anything which is subject to periodic review under this section, OFCOM must consult such persons as they consider appropriate.

(3) Subsection (2) applies irrespective or whether the modification, revocation or withdrawal is in consequence of a review under this section.

(4) For the purposes of this section a provision has effect for a competition purpose to the extent that its only or main purpose is to secure that the holder of a Broadcasting Act licence does not—

(a) enter into or maintain arrangements, or

(b) engage in a practice,

which OFCOM consider, or would consider, to be prejudicial to fair and effective competition in the provision of licensed services or of connected services.

(5) In this section “broadcasting provision” means—

(a) a provision of this Part of this Act, of the 1990 Act or of the 1996 Act, or

(b) any provision of a Broadcasting Act licence,

other than provision contained in any of sections 290 to 294 of this Act or Schedule 11 to this Act.

Programme and fairness standards for television and radio

OFCOM’s standards code

319

(1) It shall be the duty of OFCOM to set, and from time to time to review and revise, such standards for the content of programmes to be included in television and radio services as appear to them best calculated to secure the standards objectives.

(2) The standards objectives are—

(a) that persons under the age of eighteen are protected;

(b) that material likely to encourage or to incite the commission of crime or to lead to disorder is not included in television and radio services;

(c) that news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with;

(d) that news included in television and radio services is reported with due accuracy;

(e) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;

(f) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material;

(fa) that the product placement requirements referred to in section 321(3A) are met in relation to programmes included in a television programme service (other than advertisements);

(g) that advertising that contravenes the prohibition on political advertising set out in section 321(2) is not included in television or radio services;

(h) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;

(ha) that the requirements of any EU directives, as they had effect immediately before IP completion day, with respect to advertising included in television and radio services are complied with;

(i) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with;

(j) that the unsuitable sponsorship of programmes included in television and radio services is prevented;

(k) that there is no undue discrimination between advertisers who seek to have advertisements included in television and radio services; and

(l) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred.

(3) The standards set by OFCOM under this section must be contained in one or more codes.

(4) In setting or revising any standards under this section, OFCOM must have regard, in particular and to such extent as appears to them to be relevant to the securing of the standards objectives, to each of the following matters—

(a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;

(b) the likely size and composition of the potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;

(c) the likely expectation of the audience as to the nature of a programme’s content and the extent to which the nature of a programme’s content can be brought to the attention of potential members of the audience;

(d) the likelihood of persons who are unaware of the nature of a programme’s content being unintentionally exposed, by their own actions, to that content;

(e) the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section; and

(f) the desirability of maintaining the independence of editorial control over programme content.

(5) OFCOM must ensure that the standards from time to time in force under this section include—

(a) minimum standards applicable to all programmes included in television and radio services; and

(b) such other standards applicable to particular descriptions of programmes, or of television and radio services, as appear to them appropriate for securing the standards objectives.

(6) Standards set to secure the standards objective specified in subsection (2)(e) shall, in particular, contain provision designed to secure that religious programmes do not involve—

(a) any improper exploitation of any susceptibilities of the audience for such a programme; or

(b) any abusive treatment of the religious views and beliefs of those belonging to a particular religion or religious denomination.

(7) In setting standards under this section, OFCOM must take account of such of the international obligations of the United Kingdom as the Secretary of State may notify to them for the purposes of this section.

(8) In this section “news” means news in whatever form it is included in a service.

(9) Subject to subsections (10) to (12), Subsection (2)(fa) applies only in relation to programmes the production of which begins after 19th December 2009.

(10) So far as relating to product placement falling within paragraph 4(ba) of Schedule 11A (electronic cigarettes and electronic cigarette refill containers), subsection (2)(fa) applies only in relation to programmes the production of which begins after 19th May 2016.

(11) So far as relating to product placement falling within paragraph 4(bb) of Schedule 11A (undertakings whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers), subsection (2)(fa) applies only in relation to programmes the production of which begins after 31 October 2020.

(12) Subsection (2)(fa) applies in relation to a programme the production of which began before 1 November 2020 as if, in Schedule 11A (which contains the product placement requirements referred to in section 321(3A))—

(a) paragraph 3(1)(b) to (d) were omitted,

(b) in paragraph 6(1) there were inserted, as paragraph (a): “the programme is a religious, consumer affairs or current affairs programme;”, and

(c) paragraph 7 included a condition that the programme in which the product, service or trademark, or the reference to it, is included is—

(i) a film made for cinema,

(ii) a film or series made for a television programme service or for an on-demand programme service,

(iii) a sports programme, or

(iv) a light entertainment programme.

Special impartiality requirements

320

(1) The requirements of this section are—

(a) the exclusion, in the case of television and radio services (other than a restricted service within the meaning of section 245), from programmes included in any of those services of all expressions of the views or opinions of the person providing the service on any of the matters mentioned in subsection (2);

(b) the preservation, in the case of every television programme service, teletext service, national radio service and national digital sound programme service, of due impartiality, on the part of the person providing the service, as respects all of those matters;

(c) the prevention, in the case of every local radio service, local digital sound programme service or radio licensable content service, of the giving of undue prominence in the programmes included in the service to the views and opinions of particular persons or bodies on any of those matters.

(2) Those matters are—

(a) matters of political or industrial controversy; and

(b) matters relating to current public policy.

(3) Subsection (1)(a) does not require—

(a) the exclusion from television programmes of views or opinions relating to the provision of programme services; or

(b) the exclusion from radio programmes of views or opinions relating to the provision of programme services.

(4) For the purposes of this section—

(a) the requirement specified in subsection (1)(b) is one that (subject to any rules under subsection (5)) may be satisfied by being satisfied in relation to a series of programmes taken as a whole;

(b) the requirement specified in subsection (1)(c) is one that needs to be satisfied only in relation to all the programmes included in the service in question, taken as a whole.

(5) OFCOM’s standards code shall contain provision setting out the rules to be observed in connection with the following matters—

(a) the application of the requirement specified in subsection (1)(b);

(b) the determination of what, in relation to that requirement, constitutes a series of programmes for the purposes of subsection (4)(a);

(6) Any provision made for the purposes of subsection (5)(a) must, in particular, take account of the need to ensure the preservation of impartiality in relation to the following matters (taking each matter separately)—

(a) matters of major political or industrial controversy, and

(b) major matters relating to current public policy,

as well as of the need to ensure that the requirement specified in subsection (1)(b) is satisfied generally in relation to a series of programmes taken as a whole.

(7) In this section “national radio service” and “local radio service” mean, respectively, a sound broadcasting service which is a national service within the meaning of section 245 and a sound broadcasting service which is a local service within the meaning of that section.

Objectives for advertisements and sponsorship

321

(1) Standards set by OFCOM to secure the objectives mentioned in section 319(2)(a) and (fa) to (j)—

(a) must include general provision governing standards and practice in advertising and in the sponsoring of programmes and, in relation to television programme services, general provision governing standards and practice in product placement ; ...

(b) may include provision prohibiting advertisements and forms and methods of advertising or sponsorship (whether generally or in particular circumstances); and

(c) in relation to television programme services, may include provision prohibiting forms and methods of product placement (including product placement of products, services or trade marks of any description) (whether generally or in particular circumstances).

(2) For the purposes of section 319(2)(g) an advertisement contravenes the prohibition on political advertising if it is—

(a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;

(b) an advertisement which is directed towards a political end; or

(3) For the purposes of this section objects of a political nature and political ends include each of the following—

(a) influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere;

(b) bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, or otherwise influencing the legislative process in any country or territory;

(c) influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;

(d) influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom;

(e) influencing the policies or decisions of persons on whom functions are conferred by or under international agreements;

(f) influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy;

(g) promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends.

(3A) For the purposes of section 319(2)(fa) the product placement requirements are the requirements set out in Schedule 11A.

(4) OFCOM—

(a) shall—

(i) in relation to programme services, have a general responsibility with respect to advertisements and methods of advertising and sponsorship; and

(ii) in relation to television programme services, have a general responsibility with respect to methods of product placement; and

(b) in the discharge of that responsibility may include conditions in any licence which is granted by them for any such service that enable OFCOM to impose requirements with respect to any of those matters that go beyond the provisions of OFCOM’s standards code.

(5) OFCOM must, from time to time, consult the Secretary of State about—

(a) the descriptions of advertisements that should not be included in programme services; ...

(b) the forms and methods of advertising and sponsorship that should not be employed in, or in connection with, the provision of such services; and

(c) the forms and methods of product placement that should not be employed in the provision of a television programme service (including the descriptions of products, services or trade marks for which product placement should not be employed).

(6) The Secretary of State may give OFCOM directions as to the matters mentioned in subsection (5); and it shall be the duty of OFCOM to comply with any such direction.

(7) Provision included by virtue of this section in standards set under section 319 is not to apply to, or to be construed as prohibiting the inclusion in a programme service of—

(a) an advertisement of a public service nature inserted by, or on behalf of, a government department; or

(b) a party political or referendum campaign broadcast the inclusion of which is required by a condition imposed under section 333 or by paragraph 18 of Schedule 12 to this Act.

(8) In this section “programme service” does not include a service provided by the BBC (except in the expression “television programme service”).

Supplementary powers relating to advertising

322

(1) The regulatory regime for each of the following—

(a) every television programme service licensed by a Broadcasting Act licence,

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

(c) every ... teletext service so licensed that consists in an additional television service or a digital additional television service,

includes a condition requiring the person providing the service to comply with every direction given to him by OFCOM with respect to any of the matters mentioned in subsection (2).

(2) Those matters are—

(a) the maximum amount of time to be given to advertisements in any hour or other period;

(b) the minimum interval which must elapse between any two periods given over to advertisements;

(d) the exclusion of advertisements from a specified part of a licensed service.

(3) Directions under this section—

(a) may be either general or specific;

(b) may be qualified or unqualified; and

(c) may make different provision for different parts of the day, different days of the week, different types of programmes or for other differing circumstances.

(4) In giving a direction under this section, OFCOM must take account of such of the international obligations of the United Kingdom as the Secretary of State may notify to them for the purposes of this section.

Modification of matters to be taken into account under s. 319

323

(1) The Secretary of State may by order modify the list of matters in section 319(4) to which OFCOM are to have regard when setting or revising standards.

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

(3) No order is to be made containing provision authorised by subsection (1) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Setting and publication of standards

324

(1) Before setting standards under section 319, OFCOM must publish, in such manner as they think fit, a draft of the proposed code containing those standards.

(2) After publishing the draft code and before setting the standards, OFCOM must consult every person who holds a relevant licence and such of the following as they think fit—

(a) persons appearing to OFCOM to represent the interests of those who watch television programmes;

(b) persons appearing to OFCOM to represent the interests of those who make use of teletext services; and

(3) After publishing the draft code and before setting the standards, OFCOM must also consult—

(a) S4C, about so much of the draft code as relates to television programme services;

(b) the BBC, about so much of the draft code as contains standards other than those for advertising or sponsorship; and

(c) such of the persons mentioned in subsection (4) as OFCOM think fit, about so much of the draft code as contains standards for advertising or sponsorship or for product placement .

(4) Those persons are—

(a) persons appearing to OFCOM to represent the interests of those who will have to take account of the contents of the proposed standards for advertising or sponsorship or for product placement ;

(b) bodies and associations appearing to OFCOM to be concerned with the application of standards of conduct in advertising; and

(c) professional organisations appearing to OFCOM to be qualified to give relevant advice in relation to the advertising of particular products.

(5) If it appears to OFCOM that a body exists which represents the interests of a number of the persons who hold relevant licences, they may perform their duty under subsection (2) of consulting such persons, so far as it relates to the persons whose interests are so represented, by consulting that body.

(6) OFCOM may set standards under section 319 either—

(a) in the terms proposed in a draft code published under subsection (1); or

(b) with such modifications as OFCOM consider appropriate in the light of the consultation carried out as a result of subsections (2) to (5).

(7) Subsections (1) to (6) apply to a proposal by OFCOM to revise standards set under section 319 as they apply to a proposal to set such standards.

(8) Where OFCOM set standards under section 319, they must publish the code containing the standards 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 the standards.

(9) Where OFCOM revise standards set under section 319, they shall so publish the code containing the standards as revised.

(10) Where OFCOM publish a code under subsection (8) or (9), they shall send a copy of it—

(a) to the Secretary of State;

(b) except in the case of a code containing standards for advertising or sponsorship, to the BBC; and

(11) A code (or draft code) contains standards for advertising or sponsorship for the purposes of this section to the extent that it sets standards under section 319 for securing any of the objectives mentioned in any of paragraphs (g) to (k) of subsection (2) of that section.

(11A) A code (or draft code) contains standards for product placement for the purposes of this section to the extent that it sets standards under section 319 for securing the objective mentioned in paragraph (fa) of subsection (2) of that section.

(12) In this section “relevant licence”, in relation to a draft code, means—

(a) to the extent that the draft code relates to

(i) television programme services,

(ii) ... or

(iii) an additional television service,

a licence under Part 1 of the 1990 Act (independent television services), under section 18 of the 1996 Act (digital television programme services) under section 25 of that Act (digital additional television services) or under section 219 of this Act; and

(b) to the extent that the draft code relates to radio programme services, any licence under Part 3 of the 1990 Act (independent radio services), under section 60 of the 1996 Act (digital sound programme service) or under section 64 of that Act (digital additional services).

Observance of standards code

325

(1) The regulatory regime for every programme service licensed by a Broadcasting Act licence includes conditions for securing—

(a) that standards set under section 319 are observed in the provision of that service; and

(b) that procedures for the handling and resolution of complaints about the observance of those standards are established and maintained.

(2) It shall be the duty of OFCOM themselves to establish procedures for the handling and resolution of complaints about the observance of standards set under section 319.

(3) OFCOM may from time to time make a report to the Secretary of State on any issues with respect to OFCOM’s standards code which—

(a) have been identified by them in the course of carrying out their functions; and

(b) appear to them to raise questions of general broadcasting policy.

(4) The conditions of a licence which is granted by OFCOM for a programme service must, for the purpose of securing compliance—

(a) with OFCOM’s standards code, so far as it relates to advertising , the sponsorship of programmes and product placement , and

(b) with any such requirements as are mentioned in section 321(4) which relate to advertising , sponsorship and product placement but go beyond that code,

include a condition requiring the licence holder to comply with every direction given to him by OFCOM with respect to any of the matters mentioned in subsection (5).

(5) Those matters are—

(a) the exclusion from the service of a particular advertisement, or its exclusion in particular circumstances;

(b) the descriptions of advertisements and methods of advertising to be excluded from the service (whether generally or in particular circumstances); ...

(c) the forms and methods of sponsorship to be excluded from the service (whether generally or in particular circumstances); and

(d) in the case of a television programme service, the forms and methods of product placement to be excluded from the service (including descriptions of products, services or trade marks product placement of which is to be excluded) (whether generally or in particular circumstances).

(6) OFCOM’s powers and duties under this section are not to be construed as restricting any power of theirs, apart from this section—

(a) to include conditions with respect to the content of programmes included in any service in the licence to provide that service; or

(b) to include conditions in a licence requiring the holder of a licence to comply with directions given by OFCOM or by any other person.

Duty to observe fairness code

326

The regulatory regime for every programme service licensed by a Broadcasting Act licence includes the conditions that OFCOM consider appropriate for securing observance—

(a) in connection with the provision of that service, and

(b) in relation to the programmes included in that service,

of the code for the time being in force under section 107 of the 1996 Act (the fairness code).

Standards with respect to fairness

327

(1) Part 5 of the 1996 Act (functions of the Broadcasting Standards Commission which are transferred to OFCOM so far as they relate to codes of practice and complaints with respect to fairness and privacy) shall be amended as follows.

(2) No person shall be entitled to make a standards complaint under that Part at any time after the coming into force of this section, and no person shall be required to entertain any such complaint that is so made.

(3) In section 115 (consideration of fairness complaint)—

(a) in subsection (4) (matters to be provided in response to a fairness complaint), after paragraph (d) there shall be inserted—

(da) to provide OFCOM with such other things appearing to OFCOM to be relevant to their consideration of the complaint, and to be in the possession of the relevant person, as may be specified or described by OFCOM;

(b) in subsection (7) (requests in relation to which the relevant person is required to secure the compliance of another), after paragraph (c) there shall be inserted—

(ca) a request to provide OFCOM with such other things appearing to OFCOM to be relevant to their consideration of the complaint, and to be in the possession of the person requested, as may be specified or described by OFCOM;

(4) For subsection (7) of section 119 (directions on determination of fairness complaint) there shall be substituted—

(7) The regulatory regime for every licensed service includes the conditions that OFCOM consider appropriate for securing that the licence holder complies with every direction given to him under this section. (7A) Section 263 of the Communications Act 2003 applies in relation to conditions included by virtue of subsection (7) in the regulatory regime for a licensed service as it applies in relation to conditions which are so included by virtue of a provision of Chapter 4 of Part 3 of that Act. (7B) It is hereby declared that, where— (a) OFCOM exercise their powers under this Part to adjudicate upon a fairness complaint or to give a direction under subsection (1), and (b) it appears to them that the matters to which the complaint in question relates consist in or include a contravention of the conditions of the licence for a licensed service, the exercise by OFCOM of their powers under this Part is not to preclude the exercise by them of their powers under any other enactment in respect of the contravention. (7C) Where OFCOM are proposing to exercise any of their powers in respect of a contravention of a licence condition in a case in which the contravention relates to matters that have been the subject-matter of a fairness complaint— (a) OFCOM may have regard, in the exercise of those powers, to any matters considered or steps taken by them for the purpose of adjudicating upon that complaint and to any direction given by them under this section; but (b) steps taken for the purposes of this Part do not satisfy a requirement to give the licence holder in relation to whom those powers are to be exercised a reasonable opportunity, before they are exercised, of making representations to OFCOM.

(5) For subsection (2) of section 120 of that Act (reports on supplementary action taken in response to findings on fairness complaint) there shall be substituted—

(2) Where the relevant programme was included in a licensed service, the licence holder shall send to OFCOM a report of any supplementary action taken by him or by any other person responsible for the making or provision of the relevant programme.

Duty to publicise OFCOM’s functions in relation to complaints

328

(1) The regulatory regime for every programme service licensed by a Broadcasting Act licence includes the conditions that OFCOM consider appropriate for securing that—

(a) the procedures which, by virtue of section 325, are established and maintained for handling and resolving complaints about the observance of standards set under section 319, and

(b) their functions under Part 5 of the 1996 Act in relation to that service,

are brought to the attention of the public (whether by means of broadcasts or otherwise).

(2) Conditions included in a licence by virtue of subsection (1) may require the holder of the licence to comply with every direction given to him by OFCOM for the purpose mentioned in that subsection.

Power to proscribe unacceptable foreign television and radio services

Proscription orders

329

(1) Where—

(a) a foreign service to which this section applies comes to OFCOM’s attention, and

(b) they consider that the service is unacceptable and should be the subject of an order under this section,

they must send a notification to the Secretary of State giving details of the service and their reasons for considering that an order should be made.

(2) A service is not to be considered unacceptable by OFCOM unless they are satisfied that—

(a) programmes containing objectionable matter are included in the service; and

(b) that the inclusion of objectionable matter in programmes so included is occurring repeatedly.

(3) Matter is objectionable for the purposes of subsection (2) only if—

(a) it offends against taste or decency;

(b) it is likely to encourage or to incite the commission of crime;

(d) it is likely to be offensive to public feeling.

(4) Where the Secretary of State has received a notification under this section in the case of a service, he may make an order—

(a) identifying the service in such manner as he thinks fit; and

(b) proscribing it.

(5) The Secretary of State is not to make an order proscribing a service unless he is satisfied that the making of the order is—

(a) in the public interest; and

(b) compatible with the international obligations of the United Kingdom.

(6) The television and sound services to which this section applies are—

(a) television licensable content services provided otherwise than by broadcasting from a satellite;

(b) digital television programme services;

(d) radio licensable sound services provided otherwise than by being broadcast from a satellite;

(e) digital sound programme services; and

(f) digital additional sound services.

(7) A service to which this section applies is a foreign service if it—

(a) is a service capable of being received in the United Kingdom for the provision of which no Broadcasting Act licence is either in force or required to be in force; but

(b) is also a service for the provision of which such a licence would be required—

(i) in the case of a service falling within subsection (6)(a) to (c), if the person providing it were within the jurisdiction of the United Kingdom for the purposes of the European Convention on Transfrontier Television; and

(ii) in any other case, if the person providing it provided it from a place in the United Kingdom or were a person whose principal place of business is in the United Kingdom.

Effect of proscription order

330

(1) This section applies where a service is for the time being proscribed by an order under section 329.

(2) The proscribed service is not to be included in—

(a) a multiplex service; or

(b) a cable package.

(3) In this section “multiplex service” means a television multiplex service, a radio multiplex service or a general multiplex service.

(4) In this section “cable package” means (subject to subsection (5)) a service by means of which programme services are packaged together with a view to their being distributed—

(a) by means of an electronic communications service;

(b) so as to be available for reception by members of the public in the United Kingdom; and

(c) without the final delivery of the programme services to the persons to whom they are distributed being by wireless telegraphy.

(5) Programme services distributed by means of an electronic communications service do not form part of a cable package if—

(a) the distribution of those services forms only part of a service provided by means of that electronic communications service; and

(b) the purposes for which the service of which it forms a part is provided do not consist wholly or mainly in making available television programmes or radio programmes (or both) for reception by members of the public.

Notification for enforcing proscription

331

(1) Where OFCOM determine that there are reasonable grounds for believing that there has been a contravention of section 330 in relation to a multiplex service or a cable package, they may give a notification under this section to—

(a) the provider of that multiplex service; or

(b) the person providing the cable package.

(2) A notification under this section is one which—

(a) sets out the determination made by OFCOM; and

(b) requires the person to whom it is given to secure that the proscribed service (so long as it remains proscribed) is not—

(i) included in the notified person’s multiplex service, or

(ii) distributed as part of his cable package,

at any time more than seven days after the day of the giving of the notification.

(3) If it is reasonably practicable for a person to whom a notification is given under this section to secure that the proscribed service ceases to be included in that person’s multiplex service, or to be distributed as part of his cable package, before the end of that seven days, then he must do so.

(4) It shall be the duty of a person to whom a notification is given under this section to comply with the requirements imposed by the notification and by subsection (3).

(5) That duty shall be enforceable in civil proceedings by OFCOM—

(a) for an injunction;

(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or

(6) In this section “cable package” and “multiplex service” each has the same meaning as in section 330.

Penalties for contravention of notification under s. 331

332

(1) OFCOM may impose a penalty on a person who contravenes a requirement imposed on him by or under section 331.

(2) Before imposing a penalty on a person under this section OFCOM must give him a reasonable opportunity of making representations to them about their proposal to impose the penalty.

(3) The amount of the penalty imposed on a person is to be such amount not exceeding £5,000 as OFCOM determine to be—

(a) appropriate; and

(b) proportionate to the contravention in respect of which it is imposed.

(4) In making that determination OFCOM must have regard to—

(a) any representations made to them by the person notified under section 331; and

(b) any steps taken by him for complying with the requirements imposed on him under that section.

(5) Where OFCOM impose a penalty on a person under this section, they shall—

(a) notify the person penalised; and

(b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

(6) A penalty imposed under this section must be paid to OFCOM within the period fixed by them.

(7) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (3).

(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) For the purposes of this section there is a separate contravention in respect of every day on which the proscribed service is at any time included in a person’s multiplex service or distributed as part of his cable package.

(10) In this section “multiplex service” and “cable package” each has the same meaning as in section 330.

Party political broadcasts on television and radio

Party political broadcasts

333

(1) The regulatory regime for every licensed public service channel, and the regulatory regime for every national radio service, includes—

(a) conditions requiring the inclusion in that channel or service of party political broadcasts and of referendum campaign broadcasts; and

(b) conditions requiring that licence holder to observe such rules with respect to party political broadcasts and referendum campaign broadcasts as may be made by OFCOM.

(2) The rules made by OFCOM for the purposes of this section may, in particular, include provision for determining—

(a) the political parties on whose behalf party political broadcasts may be made;

(b) in relation to each political party on whose behalf such broadcasts may be made, the length and frequency of the broadcasts; and

(c) in relation to each designated organisation on whose behalf referendum campaign broadcasts are required to be broadcast, the length and frequency of such broadcasts.

(3) Those rules are to have effect subject to sections 37 and 127 of the Political Parties, Elections and Referendums Act 2000 (c. 41) (only registered parties and designated organisations to be entitled to party political broadcasts or referendum campaign broadcasts).

(4) Rules made by OFCOM for the purposes of this section may make different provision for different cases.

(5) Before making any rules for the purposes of this section, OFCOM must have regard to any views expressed by the Electoral Commission.

(6) In this section—

“designated organisation”, in relation to a referendum, means a person or body designated by the Electoral Commission under section 108 of the Political Parties, Elections and Referendums Act 2000 (c. 41) in respect of that referendum;

“national radio service” means a national service within the meaning of section 245 of this Act; and

“referendum campaign broadcast” has the meaning given by section 127 of that Act.

Monitoring of programmes

Retention and production of recordings

334

(1) The regulatory regime for every programme service licensed by a Broadcasting Act licence includes conditions imposing on the provider of the service—

(a) a requirement in respect of every programme included in the service to retain a recording of the programme in a specified form and for a specified period after its inclusion;

(b) a requirement to comply with any request by OFCOM to produce to them for examination or reproduction a recording retained in pursuance of the conditions in the licence; and

(c) a requirement, if the provider is able to do so, to comply with any request by OFCOM to produce to them a script or transcript of a programme included in the programme service.

(2) The period specified for the purposes of a condition under subsection (1)(a) must be—

(a) in the case of a programme included in a television programme service, a period not exceeding ninety days; and

(b) in the case of a programme included in a radio programme service, a period not exceeding forty-two days.

(3) For the purpose of maintaining supervision of the programmes included in programme services, OFCOM may themselves make and use recordings of those programmes or any part of them.

(4) Nothing in this Part is to be construed as requiring OFCOM, in the carrying out of their functions under this Part as respects programme services and the programmes included in them, to view or listen to programmes in advance of their being included in such services.

International obligations

Conditions securing compliance with international obligations

335

(1) The regulatory regime for every service to which this section applies includes the conditions that OFCOM consider appropriate for securing that the relevant international obligations of the United Kingdom are complied with.

(2) In this section “relevant international obligations of the United Kingdom” means the international obligations of the United Kingdom which have been notified to OFCOM by the Secretary of State for the purposes of this section.

(2A) The reference in subsection (2) to the international obligations of the United Kingdom includes a reference to Articles 16(1) and (2), 17 and 18 of the Audiovisual Media Services Directive, together with the interpretative provisions in Article 1 of that Directive so far as relevant to those Articles.

(2B) The provisions of the Audiovisual Media Services Directive mentioned in subsection (2A) are to be read for the purposes of this section as if—

(b) in Articles 16(1) and (2) and 17, references to the Member States were references to the United Kingdom, and

(b) in Article 16(2), the second subparagraph were omitted.

(3) This section applies to the following services—

(a) any Channel 3 service;

(b) Channel 4;

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

(e) any television licensable content service;

(f) any digital television programme service;

(g) any additional television service;

(h) any digital additional television service;

(i) any restricted television service.

(4) The conditions included in any licence in accordance with the other provisions of this Chapter are in addition to any conditions included in that licence in pursuance of this section and have effect subject to them.

Government requirements for licensed services

336

(1) If it appears to the Secretary of State or any other Minister of the Crown to be appropriate to do so in connection with any of his functions, the Secretary of State or that Minister may at any time by notice require OFCOM to give a direction under subsection (2).

(2) A direction under this subsection is a direction to the holders of the Broadcasting Act licences specified in the notice under subsection (1) to include an announcement so specified in their licensed services.

(3) The direction—

(a) may specify the times at which the announcement is to be broadcast or otherwise transmitted; and

(b) where the announcement relates to an emergency, including a natural disaster, must require the information given in the announcement to be provided in a manner which is accessible to people with disabilities.

(4) Where the holder of a Broadcasting Act licence includes an announcement in his licensed service in pursuance of a direction under this section, he may announce that he is doing so in pursuance of such a direction.

(5) The Secretary of State may, at any time, by notice require OFCOM to direct the holders of the Broadcasting Act licences specified in the notice to refrain from including in their licensed services any matter, or description of matter, specified in the notice.

(6) Where—

(a) OFCOM have given the holder of a Broadcasting Act licence a direction in accordance with a notice under subsection (5),

(b) in consequence of the revocation by the Secretary of State of such a notice, OFCOM have revoked such a direction, or

the holder of the licence in question may include in the licensed service an announcement of the giving or revocation of the direction or of the expiration of the notice, as the case may be.

(7) OFCOM must comply with every requirement contained in a notice under this section.

(8) The powers conferred by this section are in addition to any powers specifically conferred on the Secretary of State by or under this Act or any other enactment.

(9) In this section “Minister of the Crown” includes the Treasury.

Equal opportunities and training

Promotion of equal opportunities and training

337

(1) The regulatory regime for every service to which this section applies includes the conditions that OFCOM consider appropriate for requiring the licence holder to make arrangements for promoting, in relation to employment with the licence holder, equality of opportunity—

(a) between men and women; and

(b) between persons of different racial groups.

(2) That regime includes conditions requiring the licence holder to make arrangements for promoting, in relation to employment with the licence holder, the equalisation of opportunities for disabled persons.

(3) The regulatory regime for every service to which this section applies includes the conditions that OFCOM consider appropriate for requiring the licence holder to make arrangements for the training and retraining of persons whom he employs, in or in connection with—

(a) the provision of the licensed service; or

(b) the making of programmes to be included in that service.

(4) The conditions imposed by virtue of subsections (1) to (3) must contain provision, in relation to the arrangements made in pursuance of those conditions, requiring the person providing the service in question—

(a) to take appropriate steps to make those affected by the arrangements aware of them (including such publication of the arrangements as may be required in accordance with the conditions);

(b) from time to time, to review the arrangements; and

(c) from time to time (and at least annually) to publish, in such manner as he considers appropriate, his observations on the current operation and effectiveness of the arrangements.

(5) The conditions imposed by virtue of this section may include provision for treating obligations to make the arrangements mentioned in subsections (1) to (3), or to do anything mentioned in subsection (4), as discharged where a member of a group of companies to which the licence holder belongs—

(a) has made the required arrangements in relation to employment with the licence holder; or

(b) has done anything required by subsection (4) in relation to those arrangements.

(6) This section applies to a service if—

(a) it is a service the provision of which is authorised by a Broadcasting Act licence; and

(b) the requirements of both subsections (7) and (8) are satisfied in the case of that service.

(7) The requirements of this subsection are satisfied in the case of a service provided by a person if—

(a) that person employs, or is likely to employ, more than the threshold number of individuals in connection with the provision of licensed services; or

(b) the threshold number is exceeded by the aggregate number of individuals who are, or are likely to be, employed in that connection by members of a group of companies comprising that person and one or more other bodies corporate.

(8) The requirements of this subsection are satisfied in the case of a service if the licence authorising the provision of that service authorises either that service or another service authorised by that licence to be provided on a number of days in any year which exceeds the threshold number of days (whether or not the service is in fact provided on those days).

(9) In this section—

“disabled” has the same meaning as in the Equality Act 2010 or, in Northern Ireland, the Disability Discrimination Act 1995 (c. 50);

“licensed service”, in relation to an employee or likely employee of a person, means a service the provision of which—by that person, orby a body corporate which is a member of the same group of companies as that person,is authorised by a Broadcasting Act licence;

“racial group” has the same meaning as in the Race Relations Act 1976 (c. 74) Equality Act 2010 or, in Northern Ireland, the Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6));

“the threshold number” means—in relation to individuals, twenty; andin relation to days, thirty-one.

(10) For the purposes of this section a person is a member of a group of companies to which a person licensed to provide a service belongs if, and only if, both of them are bodies corporate and either—

(a) one of them is controlled by the other; or

(b) both of them are controlled by the same person.

(11) In subsection (10) “controlled” has the same meaning as in Part 1 of Schedule 2 to the 1990 Act.

(12) The Secretary of State may, by order—

(a) amend subsection (1) by adding any other form of equality of opportunity that he considers appropriate;

(b) amend the definition of “the threshold number” in subsection (9).

(13) No order is to be made containing provision authorised by subsection (12) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Corresponding rules for the BBC and S4C

Corresponding rules for the BBC and the Welsh Authority

338

Schedule 12 (which provides for the imposition on the BBC and S4C of obligations corresponding to obligations included in the regulatory regime for licensed providers) shall have effect.

Enforcement against S4C

Review of fulfilment by Welsh Authority of public service remits

339

(1) The Secretary of State may carry out a review of the performance by S4C of its duty to fulfil its public service remit.

(2) The first review carried out under this section—

(a) shall be a review relating to the period since the passing of this Act; and

(b) must not be carried out before the end of the period of five years beginning with the day of the passing of this Act.

(3) A subsequent review—

(a) shall be a review relating to the period since the end of the period to which the previous review related; and

(b) must not be carried out less than five years after the day of the publication of the report of the previous review.

(4) On a review under this section the Secretary of State—

(a) shall consult the National Assembly for Wales and S4C on the matters under review; and

(b) shall have regard to their opinions when reaching his conclusions.

(5) The Secretary of State shall also consult such other persons as he considers are likely to be affected by whether, and in what manner, S4C perform the duty mentioned in subsection (1).

(6) As soon as practicable after the conclusion of a review under this section the Secretary of State must publish a report of his conclusions.

Directions to Welsh Authority to take remedial action

340

(1) This section applies if the Secretary of State’s conclusions on a review under section 339 include a finding—

(a) that S4C has failed in any respect to perform its duty to fulfil its public service remit; and

(b) that there is no reasonable excuse for the failure.

(2) The Secretary of State may give S4C general or specific directions requiring them to take the steps that he considers will ensure that S4C perform their duty properly in future.

(3) The Secretary of State is not to give a direction under this section unless a draft of the proposed direction has been laid before Parliament and approved by a resolution of each House.

(4) Before laying a proposed direction before Parliament, the Secretary of State must consult S4C.

(5) It shall be the duty of S4C to comply with every direction under this section.

Imposition of penalties on the Welsh Authority

341

(1) This section applies to the following requirements so far as they are imposed on S4C in relation to services provided by them—

(a) the requirements imposed by or under paragraphs 7 and 8 of Schedule 12 (programme quotas);

(b) the requirements imposed by paragraph 9(1) and (3) of that Schedule (news and current affairs);

(c) the requirements imposed by paragraph 10 of that Schedule (code relating to programme commissioning) or by a direction under sub-paragraph (3)(d) of that paragraph;

(d) the requirement imposed by virtue of paragraph 12 of that Schedule to comply with standards set under section 319, so far as that requirement relates to standards set otherwise than for the purpose of securing the objectives set out in subsection (2)(c) or (d) of that section;

(e) the requirements imposed by paragraphs 14 and 16 of that Schedule (advertising or sponsorship) to comply with a direction under those paragraphs;

(f) the requirement imposed by paragraph 17 of that Schedule (observance of the fairness code);

(g) the requirement imposed by paragraph 19 of that Schedule (publicising complaints procedure);

(h) the requirement imposed by paragraph 20 of that Schedule (monitoring of programmes);

(i) the requirement imposed by paragraph 21 of that Schedule (international obligations) to comply with a direction under that paragraph;

(j) the requirement under paragraph 22 of that Schedule (assistance for disabled people) to comply with the code for the time being in force under section 303;

(ja) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(jb) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(k) the requirement to comply with a direction under section 119(1) of the 1996 Act (directions in respect of fairness matters).

(2) If OFCOM are satisfied that there has been a contravention of a requirement to which this section applies, they may serve on S4C a notice requiring S4C, within the specified period, to pay OFCOM a specified penalty.

(3) The amount of the penalty must not exceed £250,000.

(4) OFCOM are not to serve a notice on S4C under this section unless they have given them a reasonable opportunity of making representations to OFCOM about the matters appearing to OFCOM to provide grounds for the service of the notice.

(5) An exercise by OFCOM of their powers under this section does not preclude any exercise by them of their powers under paragraph 15 of Schedule 12 in respect of the same contravention.

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

(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.

Contraventions recorded in Welsh Authority’s annual report

342

In paragraph 13 of Schedule 6 to the 1990 Act (annual report of the Welsh Authority)—

(a) in sub-paragraph (2), the words from “and shall include” onwards shall be omitted; and

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

(3) The report shall also— (a) set out every contravention notification given by OFCOM to the Authority during the year; and (b) include such other information (including information relating to the Authority’s financial position) as the Secretary of State may from time to time direct. (4) In sub-paragraph (3), “contravention notification” means a notification of a determination by OFCOM of a contravention by the Authority of any obligation imposed by or under this Act, the 1996 Act or Part 3 of the Communications Act 2003.

Provision of information by Welsh Authority

343

(1) It shall be the duty of S4C to comply with every direction given to them by OFCOM to provide OFCOM with information falling within subsection (2).

(2) The information that S4C may be directed to provide is any information which OFCOM may reasonably require for the purposes of carrying out their functions in relation to S4C under this Act, the 1990 Act or the 1996 Act.

(3) Information that is required to be provided by a direction under this section must be provided in such manner and at such times as may be required by the direction.

Enforcement of licence conditions

Transmission of statement of findings

344

(1) Sections 40 and 109 of the 1990 Act (power to direct licensee to broadcast correction or apology) shall be amended as follows.

(2) For “apology”, wherever occurring, there shall be substituted “ a statement of findings ”.

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

(6) 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.

Financial penalties imposable on licence holders

345

Schedule 13 (which modifies the maximum penalties that may be imposed on the holders of Broadcasting Act licences) shall have effect.

Recovery of fees and penalties

346

(1) This section applies to the following amounts—

(a) any amount payable to OFCOM under a Broadcasting Act licence;

(b) the amount of a penalty imposed by OFCOM under Part 1 or 3 of the 1990 Act, Part 1 or 2 of the 1996 Act or this Part of this Act.

(2) Every amount to which this section applies shall be recoverable by OFCOM as a debt due to them from the person obliged to pay it.

(3) The following liabilities—

(a) a person’s liability to have a penalty imposed on him under Part 1 or 3 of the 1990 Act, Part 1 or 2 of the 1996 Act or this Part in respect of acts or omissions of his occurring while he was the holder of a Broadcasting Act licence, and

(b) a liability of a person as the holder of such a licence to pay an amount to which this section applies,

are not affected by that person’s Broadcasting Act licence having ceased (for any reason) to be in force before the imposition of the penalty or the payment of that amount.

Broadcasting Act licence fees

Statement of charging principles

347

(1) OFCOM are not to fix a tariff under section 4(3) or 87(3) of the 1990 Act or under section 4(3) or 43(3) of the 1996 Act (tariffs for fees payable under Broadcasting Act licences for recovering OFCOM’s costs) unless—

(a) at the time they do so, there is in force a statement of the principles that OFCOM are proposing to apply in fixing that tariff; and

(b) the tariff is fixed in accordance with those principles.

(2) Those principles must be such as appear to OFCOM to be likely to secure, on the basis of such estimates of the likely costs that it is practicable for them to make—

(a) that the aggregate amount of the Broadcasting Act licence fees that are required to be paid to OFCOM during a financial year is sufficient to enable them to meet, but does not exceed, the cost to them of the carrying out during that year of their functions relating to the regulation of broadcasting;

(b) that the requirement imposed by virtue of paragraph (a) is satisfied by the application to such fees of tariffs that are justifiable and proportionate to the matters in respect of which they are imposed; and

(c) that the relationship between meeting the cost of carrying out those functions and the tariffs applied to such fees is transparent.

(3) Before making or revising a statement of principles OFCOM must consult such of the persons who, in OFCOM’s opinion, are likely to be affected by those principles as they think fit.

(4) The making or revision of a statement of principles for the purposes of this section has to be by the publication of the statement, or revised statement, in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(5) As soon as reasonably practicable after the end of each financial year, OFCOM must publish a statement setting out, for that year—

(a) the aggregate amount received by them during that year in respect of Broadcasting Act licence fees required to be paid during that year;

(b) the aggregate amount outstanding and likely to be paid or recovered in respect of Broadcasting Act licence fees that are required to be so paid; and

(c) the cost to OFCOM of the carrying out during that year of their functions relating to the regulation of broadcasting.

(6) Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (5) shall be—

(a) carried forward; and

(b) taken into account in determining what is required to satisfy the requirement imposed by virtue of subsection (2)(a) in relation to the following year.

(7) References in this section to OFCOM’s functions relating to the regulation of broadcasting do not include references to any of their functions in relation to the BBC or S4C.

(8) In this section—

“Broadcasting Act licence fee” means a fee required to be paid to OFCOM in pursuance of conditions included in a Broadcasting Act licence under any of the following provisions—section 4(1)(b) or 87(1)(c) of the 1990 Act; orsection 4(1)(b) or 43(1)(c) of the 1996 Act;

“financial year” means a period of twelve months ending with 31st March.

Chapter 5 — Media ownership and control

Restrictions on licence holders

Modification of disqualification provisions

348

(1) In Part 2 of Schedule 2 to the 1990 Act (disqualification from holding licences), paragraphs (a) and (b) of paragraph 1(1) (individuals and bodies from outside the member States) shall cease to have effect.

(2) In sub-paragraph (1) of paragraph 2 of that Part (disqualification of religious bodies etc.), for the words before paragraph (a) there shall be substituted—

(2) (1) The following persons are disqualified persons in relation only to licences falling within sub-paragraph (1A)—

(3) For sub-paragraphs (2) and (3) of that paragraph there shall be substituted—

(1A) A licence falls within this sub-paragraph if it is— (a) a Channel 3 licence; (b) a Channel 5 licence; (c) a national sound broadcasting licence; (d) a public teletext licence; (e) an additional television service licence; (f) a television multiplex licence; or (g) a radio multiplex licence. (1B) In this paragraph— “additional television service licence” means a licence under Part 1 of this Act to provide an additional television service within the meaning of Part 3 of the Communications Act 2003; “Channel 3 licence” and “Channel 5 licence” each has the same meaning as in Part 1 of this Act; “national sound broadcasting licence” means a licence to provide a sound broadcasting service (within the meaning of Part 3 of this Act) which is a national service (within the meaning of that Part); “public teletext licence” means a licence to provide the public teletext service (within the meaning of Part 3 of the Communications Act 2003); “radio multiplex licence” means a licence under Part 2 of the Broadcasting Act 1996 to provide a radio multiplex service within the meaning of that Part; and “television multiplex licence” means a licence under Part 1 of the Broadcasting Act 1996 to provide a multiplex service within the meaning of that Part.

(4) In paragraph 4(2)(b) of that Part (bodies that are relevant bodies for the purposes of general disqualification on grounds of undue influence) for “as mentioned in paragraph (a)(i) or (ii) above” there shall be substituted—

(i) by a person falling within paragraph 1(1)(c) to (g) above; (ii) by a person falling within paragraph 3 above; or (iii) by two or more persons taken together each of whom falls within sub-paragraph (i) or (ii) (whether or not they all fall within the same sub-paragraph).

(5) The Secretary of State may by order make provision—

(a) for repealing paragraph 2 of Part 2 of Schedule 2 to the 1990 Act; or

(b) for making such other modifications of that paragraph and any enactment referring to it as he thinks fit.

(6) Before making an order under subsection (5) (other than one that is confined to giving effect to recommendations made by OFCOM in a report of a review under section 391), the Secretary of State must consult OFCOM.

(7) No order is to be made containing provision authorised by subsection (5) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Licence holding by local authorities

349

(1) In Part 2 of Schedule 2 to the 1990 Act (disqualification from holding licences), in paragraph 1 (which includes a disqualification for local authorities)—

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

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

(1A) Where a service is provided exclusively for the purposes of the carrying out of the functions of a local authority under section 142 of the Local Government Act 1972 (provision by local authorities of information relating to their activities), a person is disqualified by virtue of sub-paragraph (1) in relation to a licence to provide that service only if he would be so disqualified disregarding paragraph (c) of that sub-paragraph.

(2) In section 142 of the Local Government Act 1972 (c. 70) (provision by local authorities of information relating to their activities), after subsection (1A) there shall be inserted—

(1AA) A local authority may— (a) for the purpose of broadcasting or distributing information falling within subsection (1AB), provide an electronic communications network or electronic communications service, or (b) arrange with the provider of such a network or service for the broadcasting or distribution of such information by means of the network or service. (1AB) Information falls within this subsection, in relation to a local authority, if it is one or both of the following— (a) information concerning the services within the area of the authority that are provided either by the authority themselves or by other authorities mentioned in subsection (1B) below; (b) information relating to the functions of the authority. (1AC) Nothing in subsection (1AA) entitles a local authority to do anything in contravention of a requirement or restriction imposed by or under— (a) the Wireless Telegraphy Act 1949, (b) the Broadcasting Act 1990, (c) the Broadcasting Act 1996, or (d) the Communications Act 2003, and in that subsection “electronic communications network” and “electronic communications service” each has the same meaning as in the Communications Act 2003.

(3) In section 2(1) of the Local Government Act 1986 (c. 10) (restriction on publication by a local authority of material designed to affect support for a political party), after “publish” there shall be inserted “ , or arrange for the publication of, ”.

Relaxation of licence-holding restrictions

350

(1) Parts 3 to 5 of Schedule 2 to the 1990 Act (restrictions on accumulations of interests and on licence holding by newspaper proprietors and public telecommunications providers) shall cease to have effect.

(2) In each of sections 5 and 88 of the 1990 Act and of sections 5 and 44 of the 1996 Act (under which the provisions of Schedule 2 to the 1990 Act are given effect), for paragraph (b) of subsection (1) there shall be substituted—

(b) that a person does not become the holder of a licence if requirements imposed by or under Schedule 14 to the Communications Act 2003 would be contravened were he to do so; and (c) that those requirements are not contravened in the case of a person who already holds a licence.

(3) Schedule 14 (which provides for the imposition of requirements which, in the case of Channel 3 services and certain radio services, replace those imposed by or under Parts 3 and 4 of Schedule 2 to the 1990 Act and requires approval for the holding of certain licences by religious bodies etc.) shall have effect.

(4) The Secretary of State must not by order under section 411 appoint a day falling before the commencement day for paragraph 11 of Schedule 14 as the day for the coming into force of the repeal by this Act of any of the provisions of Parts 3 and 4 of Schedule 2 to the 1990 Act so far as they relate to the holding of licences for the provision of any local services (within the meaning of Part 3 of that Act).

(5) The Secretary of State must not by order under section 411 appoint a day falling before the commencement day for paragraph 12 of Schedule 14 as the day for the coming into force of the repeal by this Act of any of the provisions of Parts 3 and 4 of Schedule 2 to the 1990 Act so far as they relate to the holding of local digital sound programme licences or the provision of local digital sound programme services.

(6) In this section “the commencement day”, in relation paragraph 11 or 12 of Schedule 14, means the day on which the first order to be made under that paragraph comes into force.

Changes of control

Changes of control of Channel 3 services

351

(1) The regulatory regime for every Channel 3 service provided by a body corporate includes—

(a) a condition requiring the licence holder to give OFCOM advance notification of any proposals known to the body that may give rise to a relevant change of control; and

(b) a condition requiring the licence holder to provide OFCOM, in such manner and at such times as they may reasonably require, with such information as they consider necessary for the purposes of exercising their functions under this section and section 352.

(2) OFCOM must carry out a review where—

(a) they receive notification, in accordance with a condition of a Channel 3 licence, of proposals that may give rise to a relevant change of control; or

(b) a relevant change of control takes place (whether or not that change has been previously notified to OFCOM).

(3) The review shall be a review of the effects or likely effects, in relation to the matters mentioned in subsections (4) to (7), of—

(a) the change to which the proposals may give rise; or

(b) the change that has taken place.

(4) The matters mentioned in this subsection are—

(a) the extent to which time available for broadcasting programmes included in the service is allocated to programmes of each of the following descriptions—

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) news programmes; and

(iii) current affairs programmes;

(aa) the extent to which the qualifying audiovisual content made available by the provider of the service includes a range of original productions and the duration (in total) of those productions;

(b) the extent to which news programmes, current affairs programmes and original productions that are included in the service are broadcast at peak viewing times.

(5) The matters mentioned in this subsection are—

(aa) the extent to which the qualifying audiovisual content made in the United Kingdom that is made available by the provider of the service includes a range of Channel 3 programmes made outside the M25 area and the duration (in total) of those programmes;

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

(c) the extent to which the expenditure of the provider of the service on Channel 3 programmes is referable to programme production at different production centres outside the M25 area;

(d) the range of different such production centres to which that expenditure is referable.

(6) The matters mentioned in this subsection are—

(a) the quality and range of regional programmes included in the service;

(b) the quality and range of other programmes included in the service which contribute to the regional character of the service;

(c) the quality and range of the programmes made available by the licence holder for the purposes of networking arrangements.

(7) The matters mentioned in this subsection are—

(a) the amount of time given, in the programmes included in the service—

(i) to regional programmes; and

(ii) to programmes included in the service which contribute to the regional character of the service;

(b) the proportion of regional programmes included in the service which are made within the area for which the service is provided;

(c) the extent of the use, in connection with the service, of the services of persons employed (whether by the licence holder or any other person) within that area;

(d) the extent to which managerial or editorial decisions relating to programmes to be included in the service are taken by persons so employed within that area.

(8) In relation to a national Channel 3 service, subsections (3) to (7) have effect as if—

(a) subsection (5) applied only where the service is subject to conditions imposed by virtue of a decision of OFCOM under section 286(2) or OFCOM otherwise consider, having regard to the nature of the service, that it is appropriate to consider the matters mentioned in that subsection;

(b) references to regional programmes were references to programmes which are regional programmes (within the meaning of section 287) in relation to that service and are included in it in accordance with a condition imposed under subsection (4)(a) of that section;

(c) references to the regional character of the service were references to the regional character of parts of the service;

(d) subsection (6)(c) of this section were omitted; and

(e) references, in relation to programmes such as are mentioned in paragraph (b), to the area for which the service is provided were references to the part of that area where the people are living to whom those programmes are likely to be of particular interest.

(9) Where OFCOM carry out a review under subsection (2), they must publish a report of that review—

(a) setting out their conclusions; and

(b) specifying any steps which they propose to take under section 352.

(10) In this section—

“Channel 3 programmes” and “expenditure” each has the same meaning as in section 286;

“original production” has the same meaning as in section 278;

“peak viewing time”—in relation to original productions, means a time determined by OFCOM for the purposes of section 278 to be a peak viewing time for the service in question; andin relation to news programmes or current affairs programmes, means a time so determined for the purposes of section 279;

“regional programme”, in relation to a Channel 3 service, means (subject to subsection (8)) a programme (including a news programme) which is of particular interest—to persons living within the area for which the service is provided;to persons living within a part of that area; orto particular communities living within that area;

“relevant change of control” means a change in the persons having control over—a body holding the licence to provide a Channel 3 service; orany body which—is connected with a body holding such a licence; andis involved, to a substantial extent, in the provision of the programmes included in the service provided under that licence, or is likely to become so involved.

(11) Expressions used in this section and in Part 1 of Schedule 2 to the 1990 Act (restrictions on licence holders) have the same meanings in this section as in that Part.

Action following review under s. 351

352

(1) If, on a review under subsection (2) of section 351, it appears to OFCOM that the relevant change of control is or would be prejudicial to one or more of the matters mentioned in subsections (4) to (6) of that section, they shall vary the licence in accordance with subsection (2).

(2) The variation—

(a) must be made with a view to ensuring that the relevant change of control is not prejudicial to any of the matters so mentioned; and

(b) must be a variation for the inclusion in the licence of such conditions relating to any of those matters as they consider appropriate.

(3) If it appears to OFCOM, having regard to the matters mentioned in subsection (7) of section 351—

(a) that the proposed change of control would be prejudicial to the regional character of the service or (as the case may be) of any parts of it, or

(b) that the actual change of control is so prejudicial,

they may vary the licence so as to include in it such conditions relating to any of those matters as they consider appropriate.

(4) Subject to subsection (5), any new or varied condition imposed under this section in relation to any matter may be more onerous than the conditions relating to that matter having effect before the relevant change of control.

(5) A variation under this section must not provide for the inclusion of a new or varied condition in a licence unless the new condition, or the condition as varied, is one which (with any necessary modifications) would have been satisfied by the licence holder throughout the twelve months immediately before the relevant date.

(6) In subsection (5) “the relevant date” is the date of the relevant change of control or, if earlier, the date on which OFCOM exercise their powers under this section.

(7) A variation of a licence under this section shall be effected by the service of a notice of the variation on the licence holder.

(8) OFCOM are not to serve a notice of a variation under this section unless they have given the body on whom it is served a reasonable opportunity, after the publication of the report of the review under section 351, of making representations to them about the variation.

(9) Where, in a case of a proposed change of control, a notice varying a licence under this section is served before the change to which it relates takes place, the variation is not to take effect until the change takes place.

(10) A condition included in a licence by a variation under this section may be further varied by OFCOM either—

(a) with the consent of the licence holder; or

(b) in any other case, after complying with the requirements of section 3(4)(b) of the 1990 Act (variation after giving opportunity for representations by the licence holder).

(11) Expressions used in this section and section 351 have the same meanings in this section as in that.

Changes of control of Channel 5

353

(1) The regulatory regime for Channel 5 includes, in every case where it is provided by a body corporate—

(a) a condition requiring the licence holder to give OFCOM advance notification of any proposals known to the body that may give rise to a relevant change of control; and

(b) a condition requiring the licence holder to provide OFCOM, in such manner and at such times as they may reasonably require, with such information as they consider necessary for the purposes of exercising their functions under this section and section 354.

(2) OFCOM must carry out a review where—

(a) they receive notification, in accordance with a condition of the licence to provide Channel 5, of proposals that may give rise to a relevant change of control; or

(b) a relevant change of control takes place (whether or not that change has been previously notified to OFCOM).

(3) The review shall be a review of the effects or likely effects, in relation to the matters mentioned in subsections (4) and (5), of—

(a) the change to which the proposals may give rise; or

(b) the change that has taken place.

(4) The matters mentioned in this subsection are—

(a) the extent to which time available for broadcasting programmes included in Channel 5 is allocated to programmes of each of the following descriptions—

(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(ii) news programmes; and

(iii) current affairs programmes;

(aa) the extent to which the qualifying audiovisual content made available by the provider of Channel 5 includes a range of original productions and the duration (in total) of those productions;

(b) the extent to which news programmes, current affairs programmes and original productions that are included in that Channel are broadcast at peak viewing times.

(5) The matters mentioned in this subsection are—

(a) the extent to which the qualifying audiovisual content made in the United Kingdom that is made available by the provider of Channel 5 includes a range of programmes made outside the M25 area and the duration (in total) of those programmes;

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

(c) the extent to which the expenditure of the provider of Channel 5 on programmes made in the United Kingdom is referable to programme production at different production centres outside the M25 area;

(d) the range of different such production centres to which that expenditure is referable.

(6) Where OFCOM carry out a review under subsection (2), they must publish a report of that review—

(a) setting out their conclusions; and

(b) specifying any steps which they propose to take under section 354.

(7) In this section—

“expenditure”, in relation to a programme, means—expenditure which constitutes an investment in or is otherwise attributable to the making of the programme; orexpenditure on the commissioning or other acquisition of the programme or on the acquisition of a right to include it in a service or to have it broadcast;

“original production” has the same meaning as in section 278;

“peak viewing time”—in relation to original productions, means a time determined by OFCOM for the purposes of section 278 to be a peak viewing time for Channel 5; andin relation to news programmes or current affairs programmes, means a time so determined for the purposes of section 279;

“relevant change of control” means a change in the persons having control over—a body holding a licence to provide Channel 5; orany body which—is connected with a body holding such a licence; andis involved, to a substantial extent, in the provision of the programmes included in that channel, or is likely to become so involved.

(8) Expressions used in this section and in Part 1 of Schedule 2 to the 1990 Act (restrictions on licence holders) have the same meanings in this section as in that Part.

Action following review under s. 353

354

(1) If, on a review under subsection (2) of section 353, it appears to OFCOM that the relevant change of control is or would be prejudicial to one or more of the matters mentioned in subsections (4) and (5) of that section, they shall vary the licence in accordance with subsection (2).

(2) The variation—

(a) must be made with a view to ensuring that the relevant change of control is not prejudicial to any of the matters so mentioned; and

(b) must be a variation for the inclusion in the licence of such conditions relating to any of those matters as they consider appropriate.

(3) Subject to subsection (4), any new or varied condition imposed under this section in relation to any matter may be more onerous than the conditions relating to that matter having effect before the relevant change of control.

(4) A variation under this section must not provide for the inclusion of a new or varied condition in a licence unless the new condition, or the condition as varied, is one which (with any necessary modifications) would have been satisfied by the licence holder throughout the twelve months immediately before the relevant date.

(5) In subsection (4) “the relevant date” is the date of the relevant change of control or, if earlier, the date on which OFCOM exercise their powers under this section.

(6) A variation of a licence under this section shall be effected by the service of a notice of the variation on the licence holder.

(7) OFCOM are not to serve a notice of a variation under this section unless they have given the body on whom it is served a reasonable opportunity, after the publication of the report of the review under section 353, of making representations to them about the variation.

(8) Where, in a case of a proposed change of control, a notice varying a licence under this section is served before the change to which it relates takes place, the variation is not to take effect until the change takes place.

(9) A condition included in a licence by a variation under this section may be further varied by OFCOM either—

(a) with the consent of the licence holder; or

(b) in any other case, after complying with the requirements of section 3(4)(b) of the 1990 Act (variation after giving opportunity for representations by the licence holder).

(10) Expressions used in this section and section 353 have the same meanings in this section as in that.

Variation of local licence following change of control

355

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

Action following review under s. 355

356

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

Meaning of control

Meaning of “control”

357

(1) In paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act (control where a person will be able, without having at least a 50 per cent. interest in it, to have the affairs of a body conducted in accordance with his wishes)—

(a) for “will be able” there shall be substituted “ would (if he chose to) be able in most cases or in significant respects ”; and

(b) for “the affairs” there shall be substituted “ affairs ”.

(2) It shall be the duty of OFCOM to publish guidance setting out their intentions concerning the inclusion of particular matters in the matters that they will take into account when determining whether a person has control of a body, within the meaning of paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act.

(3) OFCOM may from time to time revise the guidance issued by them under this section.

(4) OFCOM must publish the guidance and, where they revise it, the revised guidance 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.

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