(1) The Secretary of State may by order provide for—
(a) any of the provisions of this Part (apart from this section and the provisions relating exclusively to sound services), or
(b) any provision of Part 1 of the 1990 Act or of Part 1 of the 1996 Act (regulation of television services),
to have effect, in relation to services of such descriptions as may be set out in an order under this section, with such modifications as he considers necessary or appropriate for services of that description.
(2) The Secretary of State is not to make an order under this section in relation to a description of services except where—
(a) the description is of services to be provided in digital form with a view to their being included in a television multiplex service;
(b) the description is confined to services falling within one or both of subsections (3) and (4); and
(c) the Secretary of State is satisfied that the making of an order under this section in relation to that description of services will make possible, facilitate or encourage the provision of services so falling.
(3) Services fall within this subsection if they are—
(a) intended for reception only at a particular establishment or otherwise on particular premises; or
(b) provided for the purposes only of a particular event.
(4) Services fall within this subsection if the Secretary of State considers that they are services in relation to which all the following conditions are satisfied—
(a) they are intended for reception only within a particular area or locality;
(b) their provision meets, or would meet, the needs of the area or locality where they are received;
(c) their provision is or would be likely to broaden the range of television programmes available for viewing by persons living or working in that area or locality; and
(d) their provision is or would be likely to increase the number and range of the programmes about that area or locality that are available for such viewing, or to increase the number of programmes made in that area or locality that would be so available.
(5) Services shall be taken for the purposes of subsection (4) to meet the needs of an area or locality if, and only if—
(a) their provision brings social or economic benefits to the area or locality, or to different categories of persons living or working in that area or locality; or
(b) they cater for the tastes, interests and needs of some or all of the different descriptions of people living or working in the area or locality (including, in particular, tastes, interests and needs that are of special relevance in the light of the descriptions of people who do so live and work).
(6) In subsections (4) and (5), the references to persons living or working in an area or locality include references to persons undergoing education or training in that area or locality.
(7) An order under this section in relation to a description of services may, in particular, impose prohibitions or limitations on the inclusion of advertisements in services of that description and on the sponsorship of programmes included in the services.
(8) The power, by an order under this section, to make incidental, supplemental or consequential provision in connection with provision authorised by subsection (1) includes power to make incidental, supplemental or consequential provision modifying provisions of the 1990 Act, the 1996 Act or this Act that are not mentioned in that subsection.
(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.
(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 specified in subsection (2) that are provided from places in the United Kingdom and otherwise than by the BBC;
(b) services so specified that do not fall within paragraph (a) but are provided by a person, other than the BBC, whose principal place of business is in the United Kingdom.
(c) digital sound programme services that do not fall within paragraph (a) or (b) but—
(i) are provided from a place in a qualifying country, and
(ii) are or are intended to be broadcast by means of a local radio multiplex service or small-scale radio multiplex service.
(2) The services referred to in subsection (1)(a) are—
(a) sound broadcasting services to which subsection (3) applies;
(b) radio licensable content services;
(c) additional radio services;
(d) radio multiplex services;
(e) digital sound programme services;
(f) digital additional sound services.
(3) This subsection applies to a sound broadcasting service which—
(a) is provided with a view to its being broadcast otherwise than only from a satellite; and
(b) is a national service, local service or restricted service.
(3A) The Secretary of State may, by regulations, amend or otherwise modify Schedule 2 to the Broadcasting Act 1990 (restrictions on the holding of licences) in its application to digital sound programme services that fall within subsection (1)(c).
(3B) The regulations may in particular—
(a) disapply or modify existing restrictions;
(b) provide for new restrictions to apply.
(3C) In subsection (1)(c)—
“qualifying country” means a country or territory outside the United Kingdom that is specified in regulations made by the Secretary of State for the purposes of subsection (1)(c);
“small-scale radio multiplex service” has the same meaning as in section 258A.
(4) For the purposes of this section—
(a) a service is a national service if it is a sound broadcasting service provided as mentioned in subsection (3)(a) with a view to its being broadcast for reception in any such minimum area of the United Kingdom as may be determined in accordance with section 98(2) of the 1990 Act;
(b) a service is a local service if it is a sound broadcasting service which (without being a national service) is provided as mentioned in subsection (3)(a) with a view to its being broadcast for reception in a particular area or locality in the United Kingdom; and
(c) a service is a restricted service if it is a sound broadcasting service provided as mentioned in subsection (3)(a) with a view to its being broadcast for reception—
(i) within a particular establishment in the United Kingdom or at another defined location in the United Kingdom; or
(ii) for the purposes of a particular event taking place within the United Kingdom.
(5) The services that are to be treated for the purposes of this section as provided from places in the United Kingdom include every radio licensable content service which would not fall to be so treated apart from this subsection but which—
(a) is provided with a view to its being broadcast from a satellite;
(b) is a service the broadcasting of which involves its transmission to the satellite by means of an electronic communications network from a place in the United Kingdom; and
(c) is not a service the provision of which is licensed or otherwise authorised under the laws of an EEA State.
(6) The services that are to be treated as so provided also include every service provided by a BBC company, a C4 company or an S4C company.
(7) A reference in subsection (4)(b) to an area of the United Kingdom does not include an area which comprises or includes the whole of England.
246 Abolition of function of assigning radio frequencies
The Secretary of State shall cease to have any function under the 1990 Act or the 1996 Act of assigning frequencies—
(a) for any of the purposes of Part 3 of the 1990 Act (regulation of radio services); or
(b) for the purposes of the provision of any radio multiplex services.
247 Meaning of “radio licensable content services”
(1) In this Part “radio licensable content service” means (subject to section 248) any 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 both of the following means—
(a) the broadcasting of the service (whether by the person providing it or by another) from a satellite; or
(b) the distribution of the service (whether by that person or by another) by any means involving the use of an electronic communications network.
(2) A service falls within this subsection if it—
(a) consists of sound programmes; and
(b) 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.
248 Services that are not radio licensable content services
(1) A service is not a radio licensable content service to the extent that—
(a) it is provided with a view to its being broadcast by means of a multiplex service;
(b) it is a sound broadcasting service to which subsection (3) of section 245 applies; or
(c) it is comprised in a television licensable content service.
(2) A service is not a radio licensable content service to the extent that it is provided by means of an electronic communications service if—
(a) it forms part only of a service provided by means of that electronic communications service or is one of a number of services access to which is made available by means of a service so provided; and
(b) the service of which it forms part, or by which it may be accessed, is provided for purposes that do not consist wholly or mainly in making available services of radio programmes or television programmes (or both) for reception by members of the public.
(3) A service is not a radio licensable content service if it is a two-way service.
(4) A service is a two-way service for the purposes of subsection (3) 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 sounds by the person providing the service to users of the service; and
(b) for the transmission of sounds by those users for reception by the person providing the service or by other users of the service.
(5) A service is not a radio 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 is not a radio 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 allowing them to be listened to by persons falling within sub-paragraph (a) or by 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 listening to 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;
“multiplex service” means a television multiplex service, a radio multiplex service or a general multiplex service;
“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.
(1) The Secretary of State may by order modify any of the provisions of section 247 or 248 if it appears to him appropriate to do so having regard to any one or more of the following—
(a) the protection which is expected by members of the public as respects the contents of sound programmes;
(b) the practicability of applying different levels of regulation in relation to different services;
(c) the financial impact for providers of particular services of any modification of the provisions of that section; and
(d) 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 radio 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.
250 Licensing of radio licensable content services
(1) The licence that is required for the purposes of section 97 of the 1990 Act in respect of a radio licensable content service is a licence granted under Part 3 of that Act on an application complying with this section.
(2) An application for a licence under Part 3 of the 1990 Act to provide a radio 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
(c) must be accompanied by such fee (if any),
as OFCOM may determine.
(3) Sections 109 to 111B of the 1990 Act (enforcement of licences) apply in relation to licences for radio licensable content services as they apply in relation to licences under Chapter 2 of Part 3 of the 1990 Act but with—
(a) the substitution of the word “ or ” for paragraph (b) of subsection (1) of section 110 (power to shorten licence period); and
(b) the omission of “(b)” in subsection (4) of that section and of subsection (5) of that section (which refer to the power disapplied by paragraph (a) of this subsection).
251 Abolition of separate licences for certain sound services
(1) The authorisations that are to be capable of being granted on or after the radio transfer date by or under a licence under Part 3 of the 1990 Act do not include the authorisation of the provision, as such, of—
(a) any satellite service (as defined, disregarding its repeal by this Act, in section 84(2)(b) of the 1990 Act); or
(b) any licensable sound programme service (as defined, disregarding its repeal by this Act, in section 112(1) of that Act).
(2) Subsection (1) does not affect OFCOM’s power, by means of a licence authorising the provision of a service falling within section 245(1), to authorise the provision of so much of any formerly regulated radio service as is comprised in the licensed service.
(3) So much of any relevant existing licence as authorises the provision of a service which consists in or includes a radio licensable content service—
(a) shall have effect, on and after the radio transfer date, as a licence under Part 3 of the 1990 Act authorising the provision of the radio licensable content service comprised in the licensed service;
(b) shall so have effect as a licence which, notwithstanding its terms and conditions, is to continue in force until such time as it is surrendered or is revoked in accordance with provisions of the 1990 Act; and
(c) shall otherwise have effect as a licence on the same terms and conditions as those on which it had effect immediately before the radio transfer date.
(4) It shall be the duty of OFCOM to exercise their power under section 86 of the 1990 Act to make such variations of any licence having effect in accordance with subsection (3) of this section as (after complying with subsection (5)(b) of that section) they consider appropriate for the purpose of performing their duty under section 263 of this Act.
(5) In this section—
“formerly regulated radio service” means a service mentioned in subsection (1); and
“relevant existing licence” means any licence which—
was granted by the Radio Authority under Part 3 of the 1990 Act before the radio transfer date; and
is in force immediately before the radio transfer date as a licence authorising the provision of a formerly regulated service.
(1) In subsection (1) of section 86 of the 1990 Act (period of licences), for the words from “for such period” onwards there shall be substituted
(subject to a suspension of the licence under section 111B)—
(a) in the case of a licence to provide radio licensable content services, until such time as it is surrendered or is revoked in accordance with any of the following provisions of this Part; and
(b) in any other case, until whichever is the earlier of any such time or the end of the period specified in the licence.
(2) For subsection (3) of that section there shall be substituted—
(3) A licence to provide a local or national service or to provide an additional service must specify a period of no more than twelve years as the period for which it is to be in force.
253 Extension and modification of existing licences
(1) A person who immediately before the radio transfer date holds a pre-transfer national licence or a pre-transfer local licence is entitled, in accordance with the following provisions of this section, to apply to OFCOM for an extension of the licence.
(2) The period for which a licence may be extended on such an application is a period ending not more than four years after the end of the period for which it was granted originally or (if it has been renewed) for which it was last renewed.
(3) An application under subsection (1) may only be made in the period which—
(a) begins three years before the date on which the licence would otherwise expire; and
(b) ends three months before the day that OFCOM have determined to be the day by which they would need to publish a notice under section 98(1) or 104(1) of the 1990 Act if they were proposing to grant a fresh licence to take effect from that date.
(4) A determination for the purposes of subsection (3)(b)—
(a) must be made at least one year before the day determined; and
(b) must be notified by OFCOM to the person who holds the licence in question.
(5) An application under subsection (1)—
(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
(c) must be accompanied by such fee (if any),
as OFCOM may determine.
(6) If, on an application for an extension under subsection (1), OFCOM are satisfied as to the matters mentioned in subsection (7), they shall—
(a) modify the licence by extending the period for which the licence is to be in force by such period authorised by subsection (2) as they think fit; and
(b) make such other modifications as appear to them to be necessary for the purpose of securing that the provisions of the licence correspond to those that would be contained in a national sound broadcasting licence or (as the case may be) a local sound broadcasting licence granted after the radio transfer date.
(7) Those matters are—
(a) the ability of the licence holder to maintain the service for the period of the extension; and
(b) the likelihood of a contravention by the licence holder of a requirement imposed by—
(i) a condition included in the licence by virtue of section 106 of the 1990 Act; or
(ii) a condition of the licence varied in accordance with subsection (8).
(8) For the purposes of the modification under this section of a national licence, OFCOM—
(a) shall determine an amount which is to be payable to OFCOM by the licence holder in respect of the first complete calendar year falling within the period for which the licence is extended; and
(b) may, in relation to any accounting period of the licence holder during the period of the extension, modify a condition included in the licence in pursuance of section 102(1)(c) of the 1990 Act (additional payments to be made in respect of national licences) by specifying a different percentage of the qualifying revenue for that accounting period from that which was previously specified in the condition.
(9) The amount determined by OFCOM under subsection (8)(a) must be the amount which, in OFCOM’s opinion, would have been the cash bid of the licence holder were the licence (instead of being extended) being granted afresh on an application made in accordance with section 98 of the 1990 Act.
(10) For the purposes of subsection (8)(b)—
(a) different percentages may be specified for different accounting periods; and
(b) the percentages that may be specified for an accounting period include a nil percentage.
(11) The modifications set out in accordance with subsection (6)(b) must secure—
(a) that the amount falling to be paid under the conditions of the licence for each calendar year subsequent to that for which an amount has been determined in accordance with subsection (8)(a) is the amount so determined as increased by the appropriate percentage; and
(b) that such adjustments as are appropriate are made as respects sums already paid in respect of any year or accounting period to which a modification under subsection (8) applies.
(12) Where OFCOM have granted a person’s application under this section, the extensions and modifications take effect only if that person—
(a) has been notified by OFCOM of their proposals for modifications by virtue of subsection (6)(b) or (8)(b), and for the making of a determination under subsection (8)(a); and
(b) has consented to the extension on the terms proposed.
(13) In this section—
“the appropriate percentage” has the same meaning as in section 102 of the 1990 Act;
“national sound broadcasting licence” means a licence under Part 3 of the 1990 Act to provide a sound broadcasting service which, under subsection (4)(a) of section 245 is a national service for the purposes of that section;
“pre-transfer licence” means a licence which was granted under Part 3 of the 1990 Act before the radio transfer date and has not been modified under this section or renewed at any time on or after that date;
“pre-transfer local licence” means a pre-transfer licence which was granted as a local licence (within the meaning of Part 3 of the 1990 Act, as it had effect without the amendments made by this Act);
“pre-transfer national licence” means a pre-transfer licence granted or last renewed as a national licence (within the meaning of Part 3 of the 1990 Act, as it had effect without the amendments made by this Act).
In section 104A(5) of the 1990 Act (conditions of renewal of local licence), after paragraph (b) there shall be inserted—
(c) they are satisfied that the period for which the nominated local digital sound programme service will be available for reception and the times at which it will be available will not be significantly different, week by week, from those for which and at which the licensed local service will be broadcast;
.
255 Extension of special application procedure for local licences
In section 104B(1) of the 1990 Act (special application procedure for local licences for areas with 4.5 million residents or fewer)—
(a) the word “ and ” shall be inserted at the end of paragraph (a); and
(b) paragraph (b) (which excludes areas with more than 4.5 million residents) shall cease to have effect.
(1) In section 41 of the 1996 Act (meaning of simulcast radio service), for subsection (2) there shall be substituted—
(2) In this Part, a “simulcast radio service” means a service provided by a person for broadcasting in digital form and corresponding to a service which is a national service within the meaning of Part 3 of the 1990 Act and is provided by that person.
(2) In subsection (1) of section 126 of the 1990 Act (interpretation of Part 3), before the definition of “sound broadcasting service” there shall be inserted—
“simulcast radio service” means a simulcast radio service within the meaning given by section 41(2) of the Broadcasting Act 1996 for the purposes of Part 2 of that Act;
.
(3) After that subsection there shall be inserted—
(1A) For the purposes of this Part a simulcast radio service corresponds to a national service if, in accordance with section 41(3) of the Broadcasting Act 1996, it falls to be treated as so corresponding for the purposes of Part 2 of that Act.
(1) Chapter 2 of Part 3 of the 1990 Act (sound broadcasting services) shall be amended as follows.
(2) In section 98(1) (notices of proposals to grant national licences), after paragraph (b)(ii) there shall be inserted—
(iia) the digital capacity that is likely, in their opinion, to be available from the holders of national radio multiplex licences for the broadcasting of a simulcast radio service corresponding to the service;
.
(3) In section 98(3) (applications for national licences), after paragraph (a) there shall be inserted—
(aa) the applicant’s proposals (if any) for providing a simulcast radio service corresponding to the service;
.
(4) In section 98(7) (construction of section), after “this section” there shall be inserted—
“national radio multiplex licence” has the same meaning as in Part 2 of the Broadcasting Act 1996; and
.
(5) In section 100 (award of national licence to person submitting highest cash bid), for subsection (2) there shall be substituted—
(1A) If, in a case in which one or more of the applicants has made a proposal to provide a simulcast radio service corresponding to the service to be licensed (a “simulcast applicant”), the highest cash bid is made by an applicant who is not a simulcast applicant, OFCOM may—
(a) disregard the requirement imposed by subsection (1); and
(b) award the licence to the simulcast applicant whose cash bid is the highest of the bids submitted by simulcast applicants.
(2) Where—
(a) two or more applicants for a licence have submitted cash bids specifying an identical amount and that amount is higher than the amount of every other bid, or
(b) two or more simulcast applicants have submitted cash bids specifying an identical amount and that amount is higher than the amount of every other bid submitted by a simulcast applicant,
OFCOM must invite those applicants and (in a case falling within paragraph (b)) every applicant who has made a higher bid to submit further cash bids in respect of that licence.
(2A) OFCOM may decide not to invite an applicant to submit a further cash bid under subsection (2) if—
(a) the applicant is not a simulcast applicant and they propose to exercise their power under subsection (1A); or
(b) they propose to exercise their power under subsection (3).
(2B) Subsection (2A) is not to be construed as preventing OFCOM from making a decision to exercise their power under subsection (1A) or (3) after they have received further bids in response to invitations under subsection (2).
(2C) In this Part references to a person’s cash bid, in relation to a person who has submitted a further cash bid in pursuance of subsection (2), have effect as references to his further bid.
(6) After section 100 there shall be inserted—
Licence conditions relating to simulcast radio services
100A Where OFCOM award a national licence to a person whose application for that licence included proposals to provide a simulcast radio service, that licence must include a condition requiring the licence holder—
(a) to provide, from a date specified in the licence, a simulcast radio service corresponding to the licensed service; and
(b) to do all that he can to secure the broadcasting of that service.
(1) Subject to the following provisions of this section, references in Part 2 of the 1996 Act to a radio multiplex service shall have effect as references to any service which—
(a) falls within subsection (2);
(b) is provided for broadcasting for general reception but otherwise than from a satellite; and
(c) is not a television multiplex service.
(2) A service falls within this subsection if—
(a) it consists in the packaging together (with or without other services) of two or more relevant sound services which are provided for inclusion together in that service by a combination of the relevant information in digital form; or
(b) it is a service provided with a view to its being a service falling within paragraph (a) but is one in the case of which only one relevant sound service is for the time being comprised in digital form in what is provided.
(3) The provision, at a time after the commencement of this section, of a radio multiplex service the provision of which is not authorised by or under a licence under Part 2 of the 1996 Act is not to be an offence under section 97 of the 1990 Act.
(4) Accordingly, after the commencement of this section, a licence under Part 2 of the 1996 Act shall be required for the provision of a radio multiplex service only in so far as it is required for the purposes of a limitation falling within subsection (5) which is contained in a wireless telegraphy licence, or is deemed to be so contained.
(5) A limitation falls within this subsection, in relation to a wireless telegraphy licence, if it provides that the only radio multiplex services that are authorised to be broadcast using the station or apparatus to which the licence relates are those that are licensed under Part 2 of the 1996 Act.
(6) Where immediately before the coming into force of this section—
(a) a radio multiplex service is licensed under Part 2 of the 1996 Act; and
(b) that service is one broadcast using a station or apparatus the use of which is authorised by a wireless telegraphy licence,
that wireless telegraphy licence shall be deemed to contain a limitation falling within subsection (5).
(7) In any case where a wireless telegraphy licence is deemed by virtue of subsection (6) to contain a limitation falling within subsection (5) and the person providing the radio multiplex service in question—
(a) ceases to be licensed under Part 2 of the 1996 Act in respect of that service, or
(b) ceases to exist,
OFCOM may revoke the wireless telegraphy licence.
(8) Subsection (7) is not to be construed as restricting the powers of revocation exercisable apart from this section.
(9) In subsection (2) “relevant sound service” means any of the following—
(a) a digital sound programme service;
(b) a simulcast radio service; and
(c) a digital additional sound service.
(1) The Secretary of State may by order make provision about radio multiplex services that are provided for particular areas or localities in the United Kingdom and are of a description specified by the order (“small-scale radio multiplex services”).
(2) An order under this section describing a small-scale radio multiplex service may make provision by reference to the size of the area or locality in relation to which such a service may be provided.
(3) An order under this section may provide for—
(a) any provision of Part 2 of the 1996 Act, and
(b) any provision of this Part (apart from this section and the provisions relating exclusively to sound broadcasting services or television services),
to have effect in relation to small-scale radio multiplex services with such modifications as the Secretary of State considers appropriate.
(4) An order under this section may in particular—
(a) provide for the duration of a small-scale radio multiplex licence to be determined by OFCOM, within limits specified in the order;
(b) make provision as to eligibility to hold a small-scale radio multiplex licence, including provision disqualifying persons who have an interest in a national or local radio multiplex service;
(c) require small-scale radio multiplex services to be provided on a non-commercial basis;
(d) provide for OFCOM to have regard to the effect of awarding a small-scale radio multiplex licence on holders of local radio multiplex licences;
(e) provide for capacity on a small-scale radio multiplex service to be reserved for broadcasting services of a description set out in an order under section 262;
(f) make provision about the amount of capacity that may be so reserved;
(g) make provision about the services broadcast by means of a small-scale radio multiplex service, including provision about broadcasting services licensed by local digital sound programme licences or services of a description set out in an order under section 262.
(5) The power, by order under this section, to make different provision for different cases includes power to make different provision depending on—
(a) whether or not, at a particular time, an area or locality is to a significant extent within the coverage area of one or more local radio multiplex services, and
(b) the size of the coverage area of that local radio multiplex service or those local radio multiplex services.
(6) The power, by order under this section, to make incidental, supplemental or consequential provision includes power to make incidental, supplemental or consequential provision modifying provisions of the 1996 Act or this Act not mentioned in subsection (3).
(7) In this section “small-scale radio multiplex licence” means a licence to provide a small-scale radio multiplex service.
(8) 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.
(1) Section 54 of the 1996 Act (conditions attached to radio multiplex licences) shall be amended as follows.
(2) For paragraph (h) of subsection (1) (conditions as to composition of service) there shall be substituted—
(h) that, while the licence is in force, at least the required percentage of the digital capacity on the frequency or frequencies on which the service is broadcast is used, or left available to be used, for the broadcasting of services falling within subsection (1A).
(3) After that subsection there shall be inserted—
(1A) The services falling within this subsection are—
(a) digital sound programme services;
(b) simulcast radio services;
(c) programme-related services; and
(d) relevant technical services.
(4) In subsection (2) (meaning of services referred to in paragraph (h) of subsection (1))—
(a) for “paragraph (1)(h)” there shall be substituted “ subsection (1A) ”; and
(b) in sub-paragraph (i), for the words from “(within” to “1990 Act” there shall be substituted “ (within the meaning of section 245 of the Communications Act 2003) ”.
(5) After that subsection there shall be inserted—
(2A) In subsection (1)(h), the reference to the required percentage is a reference to such percentage equal to or more than 80 per cent. as OFCOM—
(a) consider appropriate; and
(b) specify in the condition.
(6) In subsection (3) (power to vary percentage in subsection (1)(h))—
(a) for “subsection (1)” there shall be substituted “ subsection (2A) ”; and
(b) for “paragraph (h) of that subsection” there shall be substituted “ that subsection ”.
260 Digital sound services for inclusion in non-radio multiplexes
(1) In section 60(1)(a) of the 1996 Act (national digital sound programme services defined as services broadcast with a view to being broadcast by means of a national radio multiplex service), after “national radio multiplex service” there shall be inserted “ , by means of a television multiplex service or by means of a general multiplex service ”.
(2) In section 63(1) of the 1996 Act (meaning of digital additional sound service), for paragraph (a) there shall be substituted—
(a) is provided by a person with a view to its being broadcast in digital form (whether by him or some other person) so as to be available for reception by members of the public;
(aa) is so provided with a view to the broadcasting being by means of a radio multiplex service or by means of a general multiplex service; and
.
(3) After subsection (3) of section 63 of the 1996 Act there shall be inserted—
(3A) In this section “available for reception by members of the public” shall be construed in accordance with section 361 of the Communications Act 2003.
(4) In section 72(1) of the 1996 Act (interpretation of Part 2)—
(a) after the definitions of “digital sound programme service” and “digital sound programme licence” there shall be inserted—
“general multiplex service” has the same meaning as in Part 3 of the Communications Act 2003;
(b) after the definition of “technical service” there shall be inserted—
“television multiplex service” has the meaning given by section 241 of the Communications Act 2003.
In section 58(2) of the 1996 Act (renewal for twelve years of radio multiplex licences granted within six years of commencement)—
(a) for “which is granted within six years” there shall be substituted “ granted within ten years ”; and
(b) for the words from “for a period” onwards there shall be substituted—
(a) in the case of a licence granted within six years of that commencement, for a period of twelve years beginning with the date on which it would otherwise expire; and
(b) in any other case, for a period of eight years beginning with that date.
(1) The Secretary of State may by order provide for—
(a) any of the provisions of this Part (apart from this section and the provisions relating exclusively to television), or
(b) any provision of Part 3 of the 1990 Act or of Part 2 of the 1996 Act (regulation of radio services),
to have effect, in relation to services of such descriptions as may be set out in an order under this section, with such modifications as he considers necessary or appropriate for services of that description.
(2) The Secretary of State is not to make an order under this section in relation to a description of services unless—
(a) the description is of services to be provided primarily for the good of members of the public or of a particular community, rather than for commercial reasons; and
(b) he considers that the provision of services of that description confer, or would confer, significant benefits on the public or on the communities for which they are provided.
(3) An order under this section in relation to a description of services may, in particular, impose prohibitions or limitations on the inclusion of advertisements in services of that description and on the sponsorship of programmes included in the services.
(4) The power, by an order under this section, to make incidental, supplemental or consequential provision in connection with provision authorised by subsection (1) includes power to make incidental, supplemental or consequential provision modifying provisions of the 1990 Act, the 1996 Act or this Act that are not mentioned in that subsection.
(5) No order is to be made containing provision authorised by this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(1) It shall be the duty of OFCOM, by exercising—
(a) their powers under the 1990 Act and the 1996 Act, and
(b) their powers under this Part,
to secure that the holder of every Broadcasting Act licence at all times holds his licence on the conditions which are for the time being included, under this Chapter and Chapter 5 of this Part, in the regulatory regime for the licensed service.
(2) It shall also be the duty of OFCOM to do all that they can to secure that the holder of every such licence complies ... with the conditions so included in the regulatory regime for that holder’s licensed service.
(3) Where—
(a) the licence for a Channel 3 service, for Channel 4 or for Channel 5 (“the main service”) authorises or requires a corresponding or additional service to be provided in analogue form, and
(b) the regulatory regime for the main service imposes obligations in relation to programmes and other items included in that service,
those obligations are to apply equally to programmes that are included in the analogue service without being included in the main service.
(4) The Secretary of State may by order provide for—
(a) a condition included by virtue of this Act in a regulatory regime to be excluded from the regime;
(b) a condition excluded from a regulatory regime by an order under this subsection to be included in the regime again.
(4A) An order under subsection (4) may, in particular, provide for a condition to be included or excluded for a period specified in the order.
(5) No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(6) This section does not restrict OFCOM’s powers and duties apart from this section to impose obligations by means of the inclusion of conditions in a Broadcasting Act licence.
264 OFCOM reports on the fulfilment of the public service remit
(1) It shall be the duty of OFCOM—
(a) as soon as practicable after the end of the period of twelve months beginning with the commencement of this section, and
(b) as soon as practicable after the end of each such subsequent period as may be selected by OFCOM for the purposes of this section,
to satisfy, for that period, the review and reporting obligations of subsection (3).
(2) The period selected by OFCOM for the purposes of subsection (1)(b) must be a period of not more than five years beginning with the end of the previous period for which OFCOM have satisfied those review and reporting obligations.
(3) The review and reporting obligations for a period are—
(a) an obligation to carry out a review of the extent to which the public service remit for television in the United Kingdom has, during that period, been fulfilled by the public service broadcasters (taking them all together over the period as a whole); and
(b) an obligation, with a view to maintaining and strengthening the quality of the audiovisual content made available in order to fulfil the public service remit for television in the United Kingdom, to prepare a report on the matters found in the review.
(4) The public service remit for television in the United Kingdom is fulfilled where the public service broadcasters (taken together) make available a broad range of audiovisual content—
(a) in a manner which, taking into account when and how their relevant audiovisual services are received or accessed, is likely to meet the needs and satisfy the interests of as many different audiences as practicable, and
(b) which meets the needs and satisfies the interests of as many different available audiences as practicable as regards the nature of the audiovisual content made available and the subject-matters covered by it,
and that range of audiovisual content includes material satisfying the requirements in subsection (5) and itself satisfies the requirement in subsection (6).
(5) The requirements in this subsection are—
(a) that the audiovisual content made available by the public service broadcasters (taken together) provides, to the extent that is appropriate for facilitating civic understanding and fair and well-informed debate on news and current affairs, a comprehensive and authoritative coverage of news and current affairs—
(i) in, and in the different parts of, the United Kingdom, and
(ii) from around the world;
(b) that the audiovisual content made available by the public service broadcasters (taken together) comprises a public service for the dissemination of information and for the provision of education and entertainment, which includes what appears to OFCOM to be—
(i) a sufficient quantity of audiovisual content that reflects the lives and concerns of different communities and cultural interests and traditions within the United Kingdom, and locally in different parts of the United Kingdom, and
(ii) a sufficient quantity of audiovisual content that is in, or mainly in, a recognised regional or minority language;
(c) that the audiovisual content made available by the public service broadcasters (taken together) includes an appropriate range and quantity of audiovisual content, contained in original productions, that—
(i) reflects the lives and concerns of children and young people in the United Kingdom,
(ii) is of an educational nature, and
(iii) helps them to understand the world around them; and
(d) that the audiovisual content made available by the public service broadcasters (taken together) includes—
(i) an appropriate range of independent productions with an appropriate combined duration,
(ii) an appropriate range of original productions with an appropriate combined duration, and
(iii) so far as the audiovisual content consists of programmes made in the United Kingdom, an appropriate range of programmes made outside the M25 area with an appropriate combined duration.
(6) The requirement in this subsection is that the range of genres of audiovisual content made available by the public service broadcasters (taken together) constitutes an appropriate range of genres.
(7) Particular audiovisual content made available by a public service broadcaster is not to be taken into account for the purpose of determining the extent to which the public service remit for television in the United Kingdom is fulfilled unless the broadcaster has taken steps to ensure that the audiovisual content in question may be received or accessed in accordance with subsection (8) by so much of the broadcaster’s intended audience as is reasonably practicable.
(8) Audiovisual content may be received or accessed in accordance with this subsection if—
(a) the audiovisual content, and
(b) the relevant audiovisual service by means of which the audiovisual content is provided,
may be received or accessed in intelligible form and free of charge.
(8A) Any requirement to pay sums in accordance with regulations under section 365 is to be disregarded for the purpose of determining whether audiovisual content may be received or accessed in accordance with subsection (8).
(8B) Particular audiovisual content made available by a public service broadcaster by means of an on-demand programme service or a non-UK on-demand programme service is not to be taken into account for the purpose of determining the extent to which the public service remit for television in the United Kingdom is fulfilled unless the audiovisual content in question is available for a period of not less than 30 days beginning with the day on which that content is first made available for viewing.
(8C) Subsection (8B) does not apply to news programmes or programmes containing coverage of sporting events that are made available by a public service broadcaster by means of an on-demand programme service or a non-UK on-demand programme service.
(8D) The Secretary of State may by regulations amend subsection (8B) so as to substitute a different period for the period for the time being specified there.
(8E) In carrying out a review under this section OFCOM must consider—
(a) the costs to public service broadcasters of fulfilling the public service remit for television in the United Kingdom;
(b) the sources of income available to them for meeting those costs.
(8F) Every report under this section must—
(a) specify, and comment on, whatever changes appear to OFCOM to have occurred, during the period to which the report relates, in the extent to which the public service remit for television in the United Kingdom has been fulfilled;
(b) specify, and comment on, whatever changes appear to OFCOM to have occurred, during that period, in the manner in which that remit is fulfilled;
(c) set out the findings of OFCOM on their consideration of the matters mentioned in subsection (8E) and any conclusions they have arrived at in relation to those findings; and
(d) set out OFCOM’s conclusions on the current state of the audiovisual content made available by public service broadcasters in order to fulfil the public service remit for television in the United Kingdom.
(9) In performing their duties under this section, OFCOM must have regard, in particular, to—
(a) every statement of programme ... policy which has been made by virtue of this Chapter by a public service broadcaster, or which is treated as such a statement;
(b) every equivalent statement of policy made by the BBC in pursuance of the BBC Charter and Agreement; and
(c) such matters arising at times before the coming into force of this section as OFCOM consider material.
(10) Every report prepared by OFCOM under this section must be published by them—
(a) as soon as practicable after its preparation is complete; and
(b) in such manner as they consider appropriate.
(10A) Before making regulations under this section the Secretary of State must consult OFCOM.
(10B) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(11) The following are relevant audiovisual services for the purposes of this section—
(a) a television broadcasting service;
(b) a television licensable content service;
(c) a digital television programme service;
(d) an on-demand programme service;
(e) a non-UK on-demand programme service;
(f) a service, other than a service referred to in any of paragraphs (a) to (e), which falls within subsection (11A).
(11A) A service falls within this subsection if it is a service, or a dissociable section of a service, which has the following characteristics—
(a) its principal purpose is the provision of programmes,
(b) the programmes which it provides are accessed by viewers by means of the internet,
(c) there is a person who has general control over which programmes are comprised in the service or the dissociable section of the service (whether or not the person has control of the content of individual programmes or the distribution of the service), and
(d) the service or the dissociable section of the service is available for use by members of the public in all or part of the United Kingdom.
(11B) The services that are to be taken for the purposes of subsection (11A)(d) to be available for use by members of the public include any service which—
(a) is made available for use only to persons who subscribe to the service (whether for a period or in relation to a particular occasion) or who otherwise request its provision, but
(b) is a service the facility of subscribing to which, or otherwise requesting its provision, is offered or made available to members of the public.
(12) The following are public service broadcasters for the purposes of this section—
(a) the BBC;
(b) S4C; and
(c) the providers of the licensed public service channels; ...
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(13) For the purposes of this section, audiovisual content is made available by a public service broadcaster if—
(a) it is provided by means of a relevant audiovisual service provided by the broadcaster, or
(b) it is provided by means of a relevant audiovisual service provided by another person, under arrangements made between the broadcaster and that other person.
(14) In the case of a service falling within subsection (11)(f), the person, and the only person, who is to be treated for the purposes of this section as providing the service is the person described in subsection (11A)(c); and section 362(3) applies in relation to such a service as it applies in relation to a service referred to in section 362(2).
(15) In this section, a reference to the provision of an on-demand programme service or a non-UK on-demand programme service is to be read in accordance with section 368R(5) and (6).
(16) In this section—
“audiovisual content” means the programmes, other than advertisements, included in a relevant audiovisual service;
“children” means persons under the age of 18;
“independent production”—
in relation to the provider of a licensed public service channel, has the same meaning as in section 277;
in relation to the BBC, has the same meaning as in paragraph 1 of Schedule 12;
in relation to S4C, has the same meaning as in paragraph 7 of Schedule 12;
“intended audience” means—
in relation to the provider of a Channel 3 service provided for an area of the United Kingdom, members of the public in that area;
in relation to any other public service broadcaster, members of the public in the United Kingdom;
“original production”—
in relation to the provider of a licensed public service channel, has the same meaning as in section 278;
in relation to the BBC, has the meaning given by the BBC Charter and Agreement;
in relation to S4C, has the same meaning as in paragraph 8 of Schedule 12;
“programme” means any programme (with or without sounds) which consists of moving or still images or of legible text or of a combination of those things;
“recognised regional or minority language” means Welsh, the Gaelic language as spoken in Scotland, Irish, Scots, Ulster Scots or Cornish.
264A OFCOM reports: wider review and reporting obligations
(1) When carrying out a review under section 264 for a period, OFCOM must also carry out a review of the extent to which material included in media services during that period (taken together over the period as a whole) contributed towards the fulfilment of the public service requirements.
(2) Every report under section 264 must—
(a) include a report on the matters found on the review under this section,
(b) specify, and comment on, whatever changes appear to OFCOM to have occurred, during the period to which the report relates, in the extent to which the public service requirements have been fulfilled,
(c) specify, and comment on, whatever changes appear to OFCOM to have occurred, during that period, in the manner in which those requirements are fulfilled, and
(d) set out OFCOM's conclusions on the current state of material included in media services.
(3) “The public service requirements” are the requirements set out in paragraphs (a) to (d) of section 264(5), as modified by subsection (4).
(4) Section 264(5) has effect for the purposes of subsection (3) as if references to audiovisual content made available by the public service broadcasters, or to programmes included in that content, were references to material included in media services.
(5) In this section—
“material” does not include advertisements;
“media services” means any of the following services that are available to members of the public in all or part of the United Kingdom—
television and radio services,
on-demand programme services,
non-UK on-demand programme services, and
other services provided by means of the internet where there is a person who exercises editorial control over the material included in the service.
(6) The services that are to be taken for the purposes of this section to be available to members of the public include any service which—
(a) is available for reception by members of the public (within the meaning of section 361); or
(b) is available for use by members of the public (within the meaning of section 368R(4)).
(1) The regulatory regime for every licensed public service channel ... includes a condition requiring the provider of the channel ... to fulfil the public service remit for that channel ....
(2) The public service remit for every Channel 3 service and for Channel 5 is to make available a range of high quality and diverse audiovisual content—
(a) which is all capable of being taken into account for the purpose of determining the extent to which the public service remit for television in the United Kingdom is fulfilled (see section 264(7) to (8C)), and
(b) which, considered as a whole, constitutes an adequate contribution to the fulfilment of that remit.
(3) The public service remit for Channel 4 is to make available a broad range of high quality and diverse audiovisual content—
(a) which, in particular—
(i) demonstrates innovation, experiment and creativity in the form and content of programmes,
(ii) appeals to the tastes and interests of a culturally diverse society,
(iii) includes a significant quantity and range of programmes of an educational nature and other programmes of educative value, and
(iv) exhibits a distinctive character,
(b) which is all capable of being taken into account for the purpose of determining the extent to which the public service remit for television in the United Kingdom is fulfilled, and
(c) which, considered as a whole, constitutes an adequate contribution to the fulfilment of that remit.
(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(6) In this section, a reference to making available audiovisual content, in relation to a licensed public service channel, is a reference to the provider of that channel making available audiovisual content.
(7) Section 264(13) applies for the purposes of this section as it applies for the purposes of section 264.
(1) The regulatory regime for every licensed public service channel includes a condition requiring the provider of the channel—
(a) as soon as practicable after the coming into force of this section and subsequently at annual intervals, to prepare a statement of programme policy; and
(b) to monitor his own performance in the carrying out of the proposals contained in the statements made in pursuance of the condition.
(2) The condition must require every statement of programme policy prepared in accordance with the condition to set out the proposals of the provider of the channel for securing that, during the following year—
(a) the public service remit for the channel will be fulfilled; and
(b) the duties imposed on the provider by virtue of sections 277 to 296 will be performed.
(2A) The condition must require such proposals—
(a) to state whether two or more relevant audiovisual services (including the channel) are proposed to be used to fulfil the public service remit for the channel, and
(b) if so, to identify, in relation to each of the relevant audiovisual services, its proposed contribution to the fulfilment of the remit.
(3) The condition must also require every such statement to contain a report on the performance of the provider of the channel in the carrying out, during the period since the previous statement, of the proposals contained in that statement.
(4) The condition must also provide that every such statement—
(a) must be prepared having regard to guidance given by OFCOM;
(b) must be prepared taking account of the reports previously published by OFCOM under sections 264 and 358;
(c) must take special account of the most recent such reports;
(d) must be published by the provider of the channel in question as soon as practicable after its preparation is complete; and
(e) must be published in such manner as, having regard to any guidance given by OFCOM, the provider considers appropriate.
(5) In preparing guidance about the preparation of such a statement, OFCOM must have regard, in particular, to the matters which, in the light of the provisions of section 264(4) to (6), they consider should be included in statements of programme policy.
(6) It shall be the duty of OFCOM—
(a) from time to time to review the guidance for the time being in force for the purposes of this section; and
(b) to make such revisions of that guidance as they think fit.
(7) The conditions of a licence to provide a licensed public service channel may provide that a previous statement of policy made by the provider of the channel is to be treated for the purposes of this Part—
(a) as if it were a statement made in relation to such period as may be so specified; and
(b) were a statement of programme policy for the purposes of a condition imposed under this section.
(8) The reference in subsection (7) to a previous statement of policy is a reference to any statement made by the provider of the channel—
(a) whether before or after the commencement of this section, for the purposes of his application for a Broadcasting Act licence for the channel; or
(b) at any time before the commencement of this section, for any other purpose.
(9) A condition under subsection (7) cannot contain provision the effect of which is to postpone the time at which a licence holder is required to make the first statement of programme policy which (apart from that subsection) he is required to make in pursuance of a condition imposed under this section.
(1) The regulatory regime for every licensed public service channel includes a condition requiring compliance with subsection (2) in the case of a statement of programme policy containing proposals for a significant change.
(2) This subsection requires the provider of the channel—
(a) to consult OFCOM before preparing the statement; and
(b) to take account, in the preparation of the statement, of any opinions expressed to the provider of the channel by OFCOM.
(3) A condition imposed under this section must further provide that, if it appears to OFCOM that a statement of programme policy has been prepared by the provider of the channel in contravention of a condition imposed under subsection (1), the provider is—
(a) to revise that statement in accordance with any directions given to him by OFCOM; and
(b) to publish a revision of the statement in accordance with any such directions only after the revision has been approved by OFCOM.
(4) A change is a significant change for the purposes of this section if it is a change as a result of which—
(a) the channel, or
(b) any other relevant audiovisual service which is being used to fulfil the public service remit for the channel,
would in any year be materially different in character from in previous years.
(5) In determining for the purposes of any condition under this section whether a change is a significant change—
(a) regard must be had to any guidance issued by OFCOM;
(b) the changes to be considered include any changes that, together with any proposed change for a particular year, would constitute a change occurring gradually over a period of not more than three years; and
(c) the previous years with which a comparison is to be made must be those immediately preceding the year in which the change is made, or in which the changes comprised in it began to occur.
(6) It shall be the duty of OFCOM—
(a) from time to time to review the guidance for the time being in force for the purposes of this section; and
(b) to make such revisions of that guidance as they think fit.
(1) This section applies if OFCOM are of the opinion that the provider of a licensed public service channel ...—
(a) has failed , in any respect, to fulfil the public service remit for that channel ...; ...
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) This section does not apply unless—
(a) OFCOM are of the opinion that the failure of the provider is serious and is not excused by economic or market conditions; and
(b) OFCOM determine that the situation requires the exercise of their powers under this section.
(3) In making a determination under subsection (2)(b), OFCOM must have regard, in particular, to—
(a) the public service remit of that provider;
(b) the statements of programme policy ... made (or treated as made) by the provider under section 266 ...;
(c) the record generally of the provider in relation to the carrying out of obligations imposed by conditions of licences under the 1990 Act and the 1996 Act (including past obligations);
(ca) the record of the provider as regards compliance with duties under Part 4A (on-demand programme services);
(d) the effectiveness and efficiency of the provider in monitoring his own performance; and
(e) general economic and market conditions affecting generally the providers of television programme services or the providers of television multiplex services, or both of them.
(4) OFCOM shall have power to give directions to the provider to do one or both of the following—
(a) to revise the provider’s latest statement of programme policy ... in accordance with the directions; and
(b) to take such steps for remedying the provider’s failure as OFCOM may specify in the direction as necessary for that purpose.
(4A) Where the provider’s latest statement of programme policy states that one or more relevant audiovisual services other than the provider’s channel will be used to fulfil the public service remit for the channel, a direction given under this section may make provision with respect to that service or any of those services.
(5) A direction given under this section must set out—
(a) a reasonable timetable for complying with it; and
(b) the factors that will be taken into account by OFCOM in determining—
(i) whether or not a failure of the provider has been remedied; and
(ii) whether or not to exercise their powers under subsection (6).
(6) If OFCOM are satisfied—
(a) that the provider of a public service channel ... has failed to comply with a direction under this section,
(b) that that provider is still failing to fulfil the public service remit for that channel ... ..., and
(c) that it would be both reasonable and proportionate to the seriousness of that failure to vary the provider’s licence in accordance with this subsection,
OFCOM may, by notice to the provider, vary that licence so as to replace self-regulation with detailed regulation.
(7) For the purposes of subsection (6) a variation replacing self-regulation with detailed regulation is a variation which—
(a) omits the conditions imposed by virtue of sections 265 to 267; and
(b) replaces those conditions with such specific conditions as OFCOM consider appropriate for securing that the provider—
(i) fulfils the public service remit for his channel; ...
(ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(7A) Where the provider’s latest statement of programme policy states that one or more relevant audiovisual services other than the provider’s channel will be used to fulfil the public service remit for the channel, specific conditions inserted into the provider’s licence under subsection (7) may make provision with respect to that service or any of those services.
(8) If, at any time following a variation in accordance with subsection (6) of a provider’s licence, OFCOM consider that detailed regulation is no longer necessary, they may again vary the licence so as, with effect from such time as they may determine—
(a) to provide for the conditions required by virtue of sections 265 to 267 again to be included in the regulatory regime for the channel provided by that provider; and
(b) to remove or modify some or all of the specific conditions inserted under that subsection.
(9) Before giving a direction under this section to a provider or exercising their power under this section to vary a provider’s licence, OFCOM must consult that provider.
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) The Secretary of State may by order modify any one or more of the following—
(a) the public service remit for any licensed public service channel ...;
(b) the public service remit for television in the United Kingdom (see section 264(4) to (8C)).
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) The Secretary of State is not to make an order under this section except where—
(a) OFCOM have made a recommendation for the making of such an order in their most recent report under section 229 or 264; or
(b) subsection (3) applies to the order.
(3) This subsection applies to an order if—
(a) it is made by the Secretary of State less than twelve months after the date on which he has received a report under section 229;
(b) he has considered that report; and
(c) he is satisfied that the making of the order is required, notwithstanding the absence of a recommendation by OFCOM, by circumstances or other matters which are dealt with in that report or which (in his opinion) should have been.
(4) Before including a recommendation for the making of an order under this section in a report under section 229 or 264, OFCOM must consult—
(a) members of the public in the United Kingdom;
(b) such public service broadcasters as they consider are likely to be affected if the Secretary of State gives effect to the recommendation they are proposing to make; and
(c) such of the other persons providing television and radio services as OFCOM consider appropriate.
(5) Before making an order under this section, the Secretary of State must consult the persons mentioned in subsection (6) about its terms (even if the order is the one recommended by OFCOM).
(6) Those persons are—
(a) OFCOM;
(b) such public service broadcasters as they consider are likely to be affected by the order; and
(c) such of the other persons providing television and radio services as he considers appropriate.
(7) 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.
(8) In this section “public service broadcaster” means any of the persons who are public service broadcasters for the purposes of section 264.
271A Remedying failure by C4C to perform media content duties
(1) This section applies if OFCOM are satisfied—
(a) that C4C have failed to comply with a direction under section 198D in respect of a failure to perform one or more of their duties under section 198A or 198AA,
(b) that C4C are still failing to perform that duty or those duties, and
(c) that it would be both reasonable and proportionate to the seriousness of the failure to vary the licence under which Channel 4 is licensed (“the Channel 4 licence”) in accordance with this section.
(2) OFCOM may, by notice to C4C, vary the Channel 4 licence by adding such conditions, or making such modifications of conditions, as OFCOM consider appropriate for remedying (entirely or partly) C4C's failure to perform the duty or duties under section 198A or 198AA.
(3) If, at any time following such a variation, OFCOM consider that any of the additional conditions or modifications is no longer necessary, they may again vary the licence with effect from such time as they may determine.
(4) OFCOM must consult C4C before exercising their power under this section to vary the Channel 4 licence.
275 Must-provide services for the purposes of s. 274
(1) For the purposes of section 274 the list of must-provide services is as follows—
(a) every service of television programmes provided by the BBC so far as it is provided in digital form and is a service in relation to which OFCOM have functions;
(b) the Channel 3 services so far as provided in digital form;
(c) Channel 4 so far as provided in digital form;
(d) Channel 5 so far as provided in digital form;
(e) S4C Digital;
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(2) The Secretary of State may by order modify the list of must-provide services in subsection (1).
(3) In determining whether it is appropriate, by an order under subsection (2), to add a service to the list of must-provide services or to remove a service from that list, the Secretary of State must have regard, in particular, to—
(a) the public benefit to be secured by the addition of the service to the list, or by its retention in the list;
(b) the likely effect of the proposed modification as respects the costs to be borne, under arrangements entered into or imposed under section 274, by the persons who, after the coming into force of the modification, would have to be parties to those arrangements; and
(c) the extent to which that effect is proportionate to the benefit mentioned in paragraph (a).
277 Programming quotas for independent productions
(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing that in each year—
(a) the provider of the licensed public service channel makes available qualifying audiovisual content that includes a range and diversity of independent productions commissioned in accordance with the provider’s commissioning code, and
(b) the duration (in total) of those independent productions is at least the number of hours specified by order of the Secretary of State.
(2) In this section—
(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(b) a reference to independent productions is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be independent productions for the purposes of this section; and
(c) a reference to a range of independent productions is a reference to a range of such productions in terms of cost of acquisition as well as in terms of the types of programme involved.
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) The Secretary of State may also by order provide for the regulatory regime for every licensed public service channel to include conditions falling within subsection (5), either instead of or as well as those falling within subsection (1).
(5) The conditions falling within this subsection are those that OFCOM consider appropriate for securing that —
(a) in each year, the provider of the licensed public service channel makes available qualifying audiovisual content that includes a range and diversity of independent productions commissioned in accordance with the provider’s commissioning code, and
(b) the cost (in total) of the acquisition of those independent productions is at least the amount specified in the order.
(6) The power to make an order under subsection (4) includes power to provide that conditions that have previously ceased under such an order to be included in the regulatory regime for every licensed public service channel are again so included, in addition to or instead of the conditions already so included (apart from the exercise of that power) by virtue of this section.
(7) The Secretary of State is not to make an order for the regulatory regime of every licensed public service channel to include or exclude conditions falling within subsection (1) or conditions falling within subsection (5) unless—
(a) OFCOM have made a recommendation to him for those conditions to be included or excluded; and
(b) the order gives effect to that recommendation.
(8) The regulatory regime for every licensed public service channel also includes a condition requiring the provider of the channel to comply with directions given to him by OFCOM for the purpose of—
(a) carrying forward to one or more subsequent years determined in accordance with the direction any shortfall for any year in his compliance with the requirements of conditions imposed by virtue of subsection (1) or (4); and
(b) thereby increasing the number of hours or (as the case may be) the amount applicable for the purposes of those conditions to the subsequent year or years.
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(11) Before making an order under this section the Secretary of State must consult OFCOM, the BBC and S4C.
(12) 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.
(12A) If a draft of a statutory instrument containing an order under this section would, apart from this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not such an instrument.
(13) In this section—
“acquisition”, in relation to a programme, includes commissioning and the acquisition of a right to include it in a service or to have it broadcast;
“commissioning code”, in relation to a provider, means the code of practice drawn up by the provider in pursuance of conditions included in the provider’s licence by virtue of section 285;
“programme” does not include an advertisement; ...
“programming budget” means the budget for the production and acquisition of qualifying programmes.
(14) See also sections 278B and 278C (which make further provision for the interpretation of this section etc).
(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing that in each year—
(a) the provider of the licensed public service channel makes available qualifying audiovisual content that includes a range of original productions,
(b) the duration (in total) of those original productions is at least the number of hours that OFCOM consider appropriate, and
(c) if OFCOM consider it appropriate, the additional peak viewing time objective described in subsection (1A) is met.
(1A) The additional peak viewing time objective is that (out of the number of hours determined by OFCOM for the purposes of subsection (1)(b)) at least the number of hours that OFCOM consider appropriate is allocated to the broadcasting of original productions included in the channel at peak viewing times.
(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) Before imposing a condition under this section, OFCOM must consult the person on whom it is to be imposed.
(5) The requirement to consult is satisfied, in the case of the imposition of a condition by way of a variation of a licence, by compliance with section 3(4)(b) of the 1990 Act (obligation to give opportunity to make representations about variation).
(6) References in this section, in relation to a licensed public service channel, to original productions are references to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be original productions for the purposes of this section.
(7) The power to specify descriptions of programmes by order under subsection (6) includes power to confer such discretions on OFCOM as the Secretary of State thinks fit.
(7A) An order under subsection (6) may—
(a) authorise OFCOM to provide in a condition included in a licence by virtue of this section that original productions of a description specified in the licence may not be counted towards meeting the condition;
(b) require OFCOM to prepare and publish guidance about the determination of whether an original production falls within a description included in a licence by virtue of paragraph (a);
(c) authorise OFCOM to provide in a condition included in a licence by virtue of this section that the holder of the licence must have regard to that guidance.
(8) Before making an order under this section the Secretary of State must consult OFCOM, the BBC and S4C.
(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) In this section—
“peak viewing time”, in relation to a licensed public service channel, means a time that appears to OFCOM to be, or to be likely to be, a peak viewing time for that channel; and
“programme” does not include an advertisement.
(11) Before determining for the purposes of this section what constitutes a peak viewing time for a channel, OFCOM must consult the provider of the channel.
(12) See also sections 278B and 278C (which make further provision for the interpretation of this section etc).
278A Additional quotas for qualifying audiovisual content
(1) The Secretary of State may by regulations specify a description of qualifying audiovisual content for the purposes of this section if—
(a) the Secretary of State considers that qualifying audiovisual content of that description is not being made available by the providers of licensed public service channels (taken together) to the extent that is appropriate, and
(b) subsection (3) applies.
(2) The descriptions that may be specified under subsection (1) include descriptions that are framed in part by reference to the qualifying audiovisual service by means of which the content is made available.
(3) This subsection applies where OFCOM have made a recommendation for the making of the regulations in their most recent report under section 229 or 264.
(4) Where the Secretary of State makes regulations under subsection (1), the regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing that in each year—
(a) the provider of the licensed public service channel makes available qualifying audiovisual content that includes content of the description specified in the regulations, and
(b) the duration (in total) of content of that description is at least the number of hours that OFCOM consider appropriate.
(5) Before including a recommendation for the making of regulations under subsection (1) in a report under section 229 or 264, OFCOM must consult—
(a) members of the public in the United Kingdom,
(b) providers of licensed public service channels who are likely to be affected if the Secretary of State accepts the recommendation, and
(c) such other persons providing television programme services or on-demand programme services as OFCOM consider appropriate.
(6) Before making regulations under subsection (1), the Secretary of State must consult the following persons about their content—
(a) OFCOM,
(b) providers of licensed public service channels who are likely to be affected by the regulations, and
(c) such other persons providing television programme services or on-demand programme services as the Secretary of State considers appropriate.
(7) A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(8) See also sections 278B and 278C (which make further provision for the interpretation of this section etc).
278B Quotas: meaning of “qualifying audiovisual content” etc
(1) In this Part, “qualifying audiovisual content” means any material, other than advertisements, included in a qualifying audiovisual service.
(2) For the purposes of this Part, a person makes available qualifying audiovisual content if—
(a) that content is provided by—
(i) the person, or
(ii) a person associated with the person, under arrangements made between the person and that associated person,
by means of a qualifying audiovisual service provided by the person or (as the case may be) that associated person,
(b) that content, and the qualifying audiovisual service by means of which it is provided, may be received or accessed in intelligible form and free of charge, and
(c) where the qualifying audiovisual service in question is an on-demand programme service, that content is available for the period described in section 264(8B) unless it is excepted by section 264(8C).
(3) Where the period described in section 264(8B) falls partly in one year and partly in another year, the person is to be regarded for the purposes of this Part as making the qualifying audiovisual content available in the year in which the period begins.
(4) Section 362AZ12(6) (meaning of references to a person associated with a public service broadcaster) applies for the purposes of subsection (2)(a) as it applies for the purposes of Part 3A.
(5) Subsection (8A) of section 264 applies for the purposes of subsection (2)(b) as it applies for the purposes of subsection (8) of that section.
(6) For the purposes of this Part, the following are qualifying audiovisual services—
(a) television broadcasting services;
(b) on-demand programme services that are, or form part of, designated internet programme services;
(c) any other service that—
(i) is a relevant audiovisual service for the purposes of section 264 (see section 264(11)), and
(ii) is specified, or falls within a description specified, in regulations made by the Secretary of State.
(7) In relation to a qualifying audiovisual service that is an on-demand programme service, references in this Part to “provide” (and related expressions) are to be read in accordance with section 368R(5).
(8) Before making regulations under subsection (6)(c), the Secretary of State must consult OFCOM.
(9) A statutory instrument containing regulations under subsection (6)(c) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(10) In this section, “designated internet programme service” has the same meaning as in Part 3A (see section 362AZ12).
278C Quotas: further provision about their fulfilment
(1) In this section, a “quota condition” means—
(a) a condition that forms part of the regulatory regime of a licensed public service channel by virtue of—
(i) section 277(1) or (4) (quotas for independent productions),
(ii) section 278(1) (quotas for original productions),
(iii) section 278A (4) (additional quotas), or
(iv) section 286(1)(a) and (aa) or (3)(a) and (aa) or 288(1)(a) and (aa) (regional programme-making quotas relating to duration);
(b) a condition that forms part of the regulatory regime of a licensed public service channel by virtue of section 286(1)(c) or (3)(c) or 288(1)(c) (regional programme-making quotas relating to expenditure), where the condition is framed by reference to the making available of qualifying audiovisual content;
(c) a duty of the BBC under or by virtue of paragraph 1(1) or (4) of Schedule 12 (BBC quotas for independent productions);
(d) a duty of S4C under or by virtue of paragraph 7(1) or (4) or 8(1) of Schedule 12 (S4C quotas for independent productions and original productions).
(2) The Secretary of State must by regulations make provision determining whether qualifying audiovisual content that is made available by a person in the circumstances described in subsection (3) may be counted towards meeting a quota condition.
(3) Those circumstances are that the person has previously made available audiovisual content consisting of the same or substantially the same material (whether in the same year or a previous year).
(4) For the purposes of subsection (3)—
(a) “audiovisual content” has the same meaning as in section 264;
(b) section 264(13) (interpretation of “made available”) applies as it applies for the purposes of section 264.
(5) Except in the case of a quota condition relating to independent productions, regulations under subsection (2) may, instead of determining the matter described in that subsection, require OFCOM to determine it.
(6) Where the regulations require OFCOM to determine the matter, OFCOM must do so—
(a) in relation to a quota condition falling within subsection (1)(a) or (b), by conditions included in the licence of the provider of the licensed public service channel, and
(b) in relation to a quota condition falling within subsection (1)(d), by a direction given by OFCOM to S4C.
(7) Before giving a direction under subsection (6)(b), OFCOM must consult S4C.
(8) In relation to a quota condition falling within subsection (1)(a) or (b), the reference in subsection (3) to the person includes a reference to any person who previously held the licence to provide the licensed public service channel in question.
(9) Before making regulations under subsection (2), the Secretary of State must consult OFCOM.
(10) A statutory instrument containing regulations under subsection (2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing—
(a) that the programmes included in the channel include news programmes and current affairs programmes;
(b) that the news programmes and current affairs programmes included in the service are of high quality and deal with both national and international matters; and
(c) that the news programmes so included are broadcast for viewing at intervals throughout the period for which the channel is provided.
(2) That regime also includes the conditions that OFCOM consider appropriate for securing that, in each year—
(a) the time allocated to the broadcasting of news programmes included in the service, and
(b) the time allocated to the broadcasting of current affairs programmes so included,
each constitutes no less than what appears to OFCOM to be an appropriate proportion of the time allocated to the broadcasting of all the programmes included in the channel.
(3) It further includes the conditions that OFCOM consider appropriate for securing that the time allocated—
(a) to the broadcasting of news programmes included in the service, and
(b) to the broadcasting of current affairs programmes so included,
is, in each case, split in what appears to OFCOM to be an appropriate manner between peak viewing times and other times.
(4) The proportion determined by OFCOM for the purposes of subsection (2) may, for the purposes of subsection (3), be expressed as the cumulative effect of two different minimum proportions, one applying to peak viewing times and the other to other times.
(5) In this section “peak viewing time”, in relation to a licensed public service channel, means a time determined by OFCOM to be, or to be likely to be, a peak viewing time for that channel.
(6) Before determining for the purposes of this section—
(a) the proportion of time to be allocated to the broadcasting of news programmes or current affairs programmes; or
(b) what constitutes a peak viewing time for a channel,
OFCOM must consult the provider of the channel or (as the case may be) the person who is proposing to provide it.
(7) The requirement to consult is satisfied, in the case of the imposition of a condition by way of a variation of a licence, by compliance with section 3(4)(b) of the 1990 Act (obligation to give opportunity to make representations about variation).
(1) The regulatory regime for every regional Channel 3 service includes the conditions that OFCOM consider appropriate for securing the nationwide broadcasting, on the regional Channel 3 services (taken together), of news programmes that are able to compete effectively with other television news programmes broadcast nationwide in the United Kingdom.
(2) The conditions imposed under this section must include a condition requiring the holder of a regional Channel 3 licence to do all that he can to ensure—
(a) that arrangements for the appointment of a single body corporate as the appointed news provider are maintained between all the holders of regional Channel 3 licences; and
(b) that, at all times while he is providing a regional Channel 3 service, there is in force an appointment made in accordance with those arrangements.
(3) The arrangements that are required to be maintained by virtue of conditions imposed under subsection (2) must provide—
(a) for the terms on which a body is appointed as the appointed news provider to include the terms appearing to OFCOM to be appropriate for securing that the body’s finances are adequate, throughout the period of its appointment, to ensure that the Channel 3 news obligations are capable of being met; and
(b) for the approval of OFCOM to be required for the purposes of paragraph (a) to the terms on which an appointment is made.
(4) The conditions imposed under this section must include the conditions that OFCOM consider appropriate for securing that arrangements maintained between—
(a) the holders of regional Channel 3 licences, and
(b) the body which is the appointed news provider,
ensure that that body is subject to an obligation, enforceable by OFCOM, to provide OFCOM with all such information as they may require for the purpose of carrying out their functions.
(5) The conditions imposed under this section must include a condition requiring the news programmes included in a regional Channel 3 service—
(a) to be programmes provided by the body which is for the time being the appointed news provider for the purposes of this section; and
(b) to be so included in that service as to be broadcast simultaneously with the broadcasting of news programmes included, in accordance with conditions imposed under this subsection, in other regional Channel 3 services.
(6) Those conditions must also require the news programmes provided by the appointed news provider which, in accordance with a condition imposed under subsection (5), are included in a regional Channel 3 service to be programmes that are presented live.
(7) OFCOM—
(a) may issue guidance as to the terms that will satisfy requirements imposed by virtue of subsection (3)(a); and
(b) must have regard to guidance for the time being in force under this subsection when considering whether to give an approval for the purposes of provision made by virtue of subsection (3)(b).
(8) For the purposes of this section the Channel 3 news obligations are—
(a) the requirements of any conditions imposed in relation to regional Channel 3 services under section 279; and
(b) the nationwide broadcasting on the regional Channel 3 services (taken together) of news programmes that are able to compete effectively with other television news programmes broadcast nationwide in the United Kingdom.
(9) Conditions imposed under this section are not to require arrangements to make provision falling within subsection (3)(a) or (b) or (4) in relation to appointments made before the commencement of this section.
(10) Section 32 of the 1990 Act (nomination of bodies eligible for appointment as news providers) shall cease to have effect.