(1) The regulatory regime for Channel 5 includes, in every case where it is provided by a body corporate—
(a) a condition requiring the licence holder to give OFCOM advance notification of any proposals known to the body that may give rise to a relevant change of control; and
(b) a condition requiring the licence holder to provide OFCOM, in such manner and at such times as they may reasonably require, with such information as they consider necessary for the purposes of exercising their functions under this section and section 354.
(2) OFCOM must carry out a review where—
(a) they receive notification, in accordance with a condition of the licence to provide Channel 5, of proposals that may give rise to a relevant change of control; or
(b) a relevant change of control takes place (whether or not that change has been previously notified to OFCOM).
(3) The review shall be a review of the effects or likely effects, in relation to the matters mentioned in subsections (4) and (5), of—
(a) the change to which the proposals may give rise; or
(b) the change that has taken place.
(4) The matters mentioned in this subsection are—
(a) the extent to which time available for broadcasting programmes included in Channel 5 is allocated to programmes of each of the following descriptions—
(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(ii) news programmes; and
(iii) current affairs programmes;
(aa) the extent to which the qualifying audiovisual content made available by the provider of Channel 5 includes a range of original productions and the duration (in total) of those productions;
(b) the extent to which news programmes, current affairs programmes and original productions that are included in that Channel are broadcast at peak viewing times.
(5) The matters mentioned in this subsection are—
(a) the extent to which the qualifying audiovisual content made in the United Kingdom that is made available by the provider of Channel 5 includes a range of programmes made outside the M25 area and the duration (in total) of those programmes;
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) the extent to which the expenditure of the provider of Channel 5 on programmes made in the United Kingdom is referable to programme production at different production centres outside the M25 area;
(d) the range of different such production centres to which that expenditure is referable.
(6) Where OFCOM carry out a review under subsection (2), they must publish a report of that review—
(a) setting out their conclusions; and
(b) specifying any steps which they propose to take under section 354.
(7) In this section—
“expenditure”, in relation to a programme, means—
expenditure which constitutes an investment in or is otherwise attributable to the making of the programme; or
expenditure on the commissioning or other acquisition of the programme or on the acquisition of a right to include it in a service or to have it broadcast;
“original production” has the same meaning as in section 278;
“peak viewing time”—
in relation to original productions, means a time determined by OFCOM for the purposes of section 278 to be a peak viewing time for Channel 5; and
in relation to news programmes or current affairs programmes, means a time so determined for the purposes of section 279;
“relevant change of control” means a change in the persons having control over—
a body holding a licence to provide Channel 5; or
any body which—
is connected with a body holding such a licence; and
is involved, to a substantial extent, in the provision of the programmes included in that channel, or is likely to become so involved.
(8) Expressions used in this section and in Part 1 of Schedule 2 to the 1990 Act (restrictions on licence holders) have the same meanings in this section as in that Part.
(1) If, on a review under subsection (2) of section 353, it appears to OFCOM that the relevant change of control is or would be prejudicial to one or more of the matters mentioned in subsections (4) and (5) of that section, they shall vary the licence in accordance with subsection (2).
(2) The variation—
(a) must be made with a view to ensuring that the relevant change of control is not prejudicial to any of the matters so mentioned; and
(b) must be a variation for the inclusion in the licence of such conditions relating to any of those matters as they consider appropriate.
(3) Subject to subsection (4), any new or varied condition imposed under this section in relation to any matter may be more onerous than the conditions relating to that matter having effect before the relevant change of control.
(4) A variation under this section must not provide for the inclusion of a new or varied condition in a licence unless the new condition, or the condition as varied, is one which (with any necessary modifications) would have been satisfied by the licence holder throughout the twelve months immediately before the relevant date.
(5) In subsection (4) “the relevant date” is the date of the relevant change of control or, if earlier, the date on which OFCOM exercise their powers under this section.
(6) A variation of a licence under this section shall be effected by the service of a notice of the variation on the licence holder.
(7) OFCOM are not to serve a notice of a variation under this section unless they have given the body on whom it is served a reasonable opportunity, after the publication of the report of the review under section 353, of making representations to them about the variation.
(8) Where, in a case of a proposed change of control, a notice varying a licence under this section is served before the change to which it relates takes place, the variation is not to take effect until the change takes place.
(9) A condition included in a licence by a variation under this section may be further varied by OFCOM either—
(a) with the consent of the licence holder; or
(b) in any other case, after complying with the requirements of section 3(4)(b) of the 1990 Act (variation after giving opportunity for representations by the licence holder).
(10) Expressions used in this section and section 353 have the same meanings in this section as in that.
(1) In paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act (control where a person will be able, without having at least a 50 per cent. interest in it, to have the affairs of a body conducted in accordance with his wishes)—
(a) for “will be able” there shall be substituted “ would (if he chose to) be able in most cases or in significant respects ”; and
(b) for “the affairs” there shall be substituted “ affairs ”.
(2) It shall be the duty of OFCOM to publish guidance setting out their intentions concerning the inclusion of particular matters in the matters that they will take into account when determining whether a person has control of a body, within the meaning of paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act.
(3) OFCOM may from time to time revise the guidance issued by them under this section.
(4) OFCOM must publish the guidance and, where they revise it, the revised guidance in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.
(1) It shall be the duty of OFCOM—
(a) as soon as practicable after the end of the period of twelve months beginning with the commencement of this section, and
(b) as soon as practicable after the end of every subsequent period of twelve months,
to satisfy for that period the review and reporting requirements of this section.
(2) For any period those obligations are—
(a) to carry out a review of the provision of the television and radio services available for reception by members of the public in the United Kingdom during that period; and
(b) to prepare a factual and statistical report for that period on the provision of those services and on the state of the market in which they are provided.
(3) In carrying out a review for any period under this section, OFCOM must consider, in particular, each of the following—
(a) the extent to which programmes included during that period in television and radio services are representative of what OFCOM consider to be the principal genres for such programmes;
(b) the extent to which codes made by OFCOM under this Part or Part 4 or 5 of the 1996 Act (listed events and fairness) have been complied with during that period;
(c) the extent to which any guidance given by OFCOM under section 314 has been followed during that period;
(d) any trends appearing or operating during that period in the size and behaviour of the audience for radio and television services;
(e) the financial condition during that period of the market in which those services are provided and of the market in which programmes for such services are produced;
(f) what it is appropriate to achieve by conditions and duties under section 277 and paragraphs 1 and 7 of Schedule 12 and the effectiveness for that purpose of the conditions and duties for the time being in force;
(g) whether it would be appropriate to recommend to the Secretary of State that he exercises any of his powers under that section or those paragraphs;
(h) the extent to which work on independent productions (within the meaning of that section and those paragraphs) that are produced in the United Kingdom is done in a range of production centres outside the M25 area;
(i) any issues relating to intellectual property in programmes that have arisen or been of significance during that period;
(j) developments in technology that have occurred or become important during that period and are relevant to the provision, broadcasting or distribution of television and radio programmes;
(k) the availability during that period of persons with skills that are used or likely to be useful in connection with the provision of television and radio services and the production of programmes for inclusion in such services;
(l) the availability during that period of facilities for the provision of training in such skills.
(4) Every report under this section must set out OFCOM’s findings on their consideration of the matters mentioned in subsection (3).
(5) Every report prepared by OFCOM under this section must be published by them—
(a) as soon as practicable after its preparation is complete; and
(b) in such manner as they consider appropriate.
(6) OFCOM’s duties under this section are in addition to their duties under section 264.
(1) OFCOM may make such grants as they consider appropriate to the provider of any service of a description of service in relation to which provision is for the time being in force under section 262.
(2) The Secretary of State may by order provide that OFCOM may also make such grants as they consider appropriate to the provider of any service of a description of service in relation to which provision is for the time being in force under section 244.
(3) A grant made by virtue of this section may be made on such terms and conditions, and shall become repayable to OFCOM in such circumstances, as may be specified by OFCOM when making the grant.
(4) A person is not—
(a) by reason of the making to him of a grant by virtue of this section, or
(b) by reason of any terms or conditions (including any provisions for repayment) subject to which such a grant is or has been made to him,
to be a disqualified person by virtue of any provision of Schedule 2 to the 1990 Act in relation to a licence mentioned in subsection (5).
(5) Those licences are—
(a) a licence under Part 1 of the 1990 Act, or under Part 1 of the 1996 Act, which is granted in accordance with any provision made by an order under section 244 of this Act; and
(b) a licence under Part 3 of the 1990 Act, or under Part 2 of the 1996 Act, which is granted in accordance with any provision made by an order under section 262 of this Act.
(6) No order is to be made containing provision authorised by this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
359A Power of the Secretary of State to give financial assistance for radio
(1) The Secretary of State may give financial assistance for or in connection with—
(a) the provision of eligible services;
(b) the production of sound programmes (whether intended for broadcast or distribution by any other means).
(2) The financial assistance may be given—
(a) by way of grant, loan or guarantee or in any other form, and
(b) subject to such conditions as the Secretary of State considers appropriate.
(3) The conditions may (among other things) include provision under which the financial assistance is to be repaid or otherwise made good (with or without interest).
(4) The eligible services for the purposes of subsection (1)(a) are—
(a) services of a description in relation to which provision is for the time being in force under section 262 (community radio);
(b) local sound broadcasting services;
(c) local digital sound programme services.
(1) In section 201 of the 1990 Act (programme services), in subsection (1)—
(a) for paragraphs (a) to (bb) there shall be substituted—
(aa) any service which is a programme service within the meaning of the Communications Act 2003;
(b) in paragraph (c), for “a telecommunication system” there shall be substituted “ an electronic communications network (within the meaning of the Communications Act 2003) ”.
(2) For subsection (2) of that section there shall be substituted—
(2A) Subsection (1)(c) does not apply to so much of a service consisting only of sound programmes as—
(a) is a two-way service (within the meaning of section 248(4) of the Communications Act 2003);
(b) satisfies the conditions in section 248(5) of that Act; or
(c) is provided for the purpose only of being received by persons who have qualified as users of the service by reason of being persons who fall within paragraph (a) or (b) of section 248(7) of that Act.
(2B) Subsection (1)(c) does not apply to so much of a service not consisting only of sound programmes as—
(a) is a two-way service (within the meaning of section 232 of the Communications Act 2003);
(b) satisfies the conditions in section 233(5) of that Act; or
(c) is provided for the purpose only of being received by persons who have qualified as users of the service by reason of being persons who fall within paragraph (a) or (b) of section 233(7) of that Act.
(3) Schedule 15 (which makes minor and consequential amendments of the 1990 Act and the 1996 Act for purposes connected with the other provisions of this Chapter) shall have effect.
361 Meaning of “available for reception by members of the public”
(1) The services that are to be taken for the purposes of this Part to be available for reception by members of the public include (subject to subsection (2)) any service which—
(a) is made available for reception, or is made available for reception in an intelligible form, only to persons who subscribe to the service (whether for a period or in relation to a particular occasion) or who otherwise request its provision; but
(b) is a service the facility of subscribing to which, or of otherwise requesting its provision, is offered or made available to members of the public.
(2) A service is not to be treated as available for reception by members of the public if it is an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service (see section 368HA).
(6) References in this section to members of the public are references to members of the public in, or in any area of, any one or more countries or territories (which may or may not include the United Kingdom).
(7) The Secretary of State may by order modify any of the provisions of this section if it appears to him appropriate to do so having regard to any one or more of the following—
(a) the protection which, taking account of the means by which the programmes and services are received or may be accessed, is expected by members of the public as respects the contents of television programmes or sound programmes;
(b) the extent to which members of the public are able, before television programmes are watched or accessed, to make use of facilities for exercising control, by reference to the contents of the programmes, over what is watched or accessed;
(c) the practicability of applying different levels of regulation in relation to different services;
(d) the financial impact for providers of particular services of any modification of the provisions of that section; and
(e) technological developments that have occurred or are likely to occur.
(8) No order is to be made containing provision authorised by subsection (7) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.
(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(1) In this Part—
“additional radio service” means an additional service within the meaning given by section 114(1) of the 1990 Act for the purposes of Part 3 of that Act;
“additional television service” (except in the expression “digital additional television service”) means an additional service within the meaning given by section 48 of the 1990 Act for the purposes of Part 1 of the 1990 Act;
...
“ancillary service” has the same meaning as it has, by virtue of section 24(2) of the 1996 Act, in Part 1 of that Act;
“assistance for disabled people” includes, in particular, any of the following—
subtitling;
audio-description for the blind and partially sighted; and
presentation in, or translation into, sign language;
“audiovisual content”, in relation to a relevant audiovisual service, has the meaning given by section 264;
“available for reception by members of the public” is to be construed in accordance with section 361;
“the BBC Charter and Agreement” means the following documents, or any one or more of them, so far as they are for the time being in force—
a Royal Charter for the continuance of the BBC;
supplemental Charters obtained by the BBC under such a Royal Charter;
an agreement between the BBC and the Secretary of State entered into (whether before or after the passing of this Act) for purposes that include the regulation of activities carried on by the BBC;
“BBC company” means—
a body corporate which is controlled by the BBC; or
a body corporate in which the BBC or a body corporate controlled by the BBC is (to any extent) a participant;
“C4 company” means—
a body corporate which is controlled by C4C; or
a body corporate in which C4C or a body corporate controlled by C4C is (to any extent) a participant;
“Channel 3”, “Channel 4” and “Channel 5” each has the same meaning as in Part 1 of the 1990 Act (see section 71 of that Act);
“Channel 3 licence” means a licence to provide a Channel 3 service;
“a Channel 3 service” means a television broadcasting service comprised in Channel 3;
“digital additional sound service” means a digital additional service within the meaning given by section 63 of the 1996 Act for the purposes of Part 2 of that Act;
“digital additional television service” means a digital additional service within the meaning given by section 24(1) of the 1996 Act for the purposes of Part 1 of that Act;
...
“digital sound programme licence” and “digital sound programme service” each has the same meaning as in Part 2 of the 1996 Act (see sections 40 and 72 of that Act);
“digital television programme service” means a digital programme service within the meaning given by section 1(4) of the 1996 Act for the purposes of Part 1 of that Act;
“EEA State” has the meaning given by Schedule 1 to the Interpretation Act 1978, ...;
“the European Convention on Transfrontier Television” means the Council of Europe Convention on Transfrontier Television which was opened for signature at Strasbourg on 5th May 1989, as amended by the Protocol which was opened for signature at Strasbourg on 1st October 1998;
“general multiplex service” means a multiplex service within the meaning of section 175 which is neither a television multiplex service nor a radio multiplex service;
“initial expiry date” has the meaning given by section 224;
“licensed public service channel” means any of the following services (whether provided for broadcasting in digital or in analogue form)—
any Channel 3 service;
Channel 4;
Channel 5;
“local digital sound programme licence” and “local digital sound programme service” each has the same meaning as in Part 2 of the 1996 Act (see sections 60 and 72 of that Act);
“local radio multiplex licence” and “local radio multiplex service” each has the same meaning as in Part 2 of the 1996 Act (see sections 40 and 72 of that Act);
“local sound broadcasting licence” means a licence under Part 3 of the 1990 Act to provide a local sound broadcasting service;
“local sound broadcasting service” means a sound broadcasting service which, under subsection (4)(b) of section 245, is a local service for the purposes of that section;
“the M25 area” means the area the outer boundary of which is represented by the London Orbital Motorway (M25);
“national Channel 3 service” means a Channel 3 service provided between particular times of the day for more than one area for which regional Channel 3 services are provided;
“national digital sound programme service” has the same meaning as in Part 2 of the 1996 Act;
“national radio multiplex licence” and “national radio multiplex service” each has the same meaning as in Part 2 of the 1996 Act (see sections 40 and 72 of that Act);
“networking arrangements” has the meaning given by section 290;
“OFCOM’s standards code” means any code or codes for the time being in force containing standards set by OFCOM under section 319 (whether originally or by way of any revision of any standards previously so set);
“product placement” has the meaning given by paragraph 1 of Schedule 11A;
“provision”, in relation to a service, is to be construed (subject to subsection (3)) in accordance with subsection (2), and cognate expressions are to be construed accordingly;
...
...
“qualifying audiovisual content” has the meaning given by section 278B (and references to making available qualifying audiovisual content are to be construed in accordance with that section);
“qualifying audiovisual service” has the meaning given by section 278B;
“qualifying service” has the same meaning as in Part 1 of the 1996 Act (see section 2(2) of that Act);
“radio licensable content service” has the meaning given by section 247;
“radio multiplex service” has the same meaning as (by virtue of section 258 of this Act) it has in Part 2 of the 1996 Act;
“radio programme service” means any of the following—
a service the provision of which is licensed under Part 3 of the 1990 Act;
a digital sound programme service the provision of which is licensed under Part 2 of the 1996 Act;
a digital additional sound service the provision of which is licensed under section 64 of the 1996 Act;
“regional Channel 3 licence” means a licence under Part 1 of the 1990 Act to provide a regional Channel 3 service;
“regional Channel 3 service” means a Channel 3 service provided for a particular area determined under section 14(2) of the 1990 Act;
“relevant audiovisual service” has the meaning given by section 264;
“restricted television service” means any restricted service within the meaning given by section 42A of the 1990 Act for the purposes of Part 1 of that Act;
...
“S4C company” means—
a body corporate which is controlled by S4C; or
a body corporate in which S4C or a body corporate controlled by S4C is (to any extent) a participant;
“S4C Digital” means the television programme service provided by S4C in digital form and originally known as S4C Digital but increasingly since April 2010 (date of digital switch-over in Wales) simply called S4C;
“simulcast radio service” means any simulcast radio service within the meaning given by section 41(2) of the 1996 Act for the purposes of Part 2 of that Act;
“sound broadcasting service” has the same meaning as in Part 3 of the 1990 Act (see section 126 of that Act);
“standards objectives” has the meaning given by section 319(2);
“subtitling” means subtitling for the deaf or hard of hearing, whether provided by means of a teletext service or otherwise;
“television broadcasting service” means (subject to subsection (4)) a service (or a dissociable section of a service) which—
consists in a service of television programmes provided with a view to its being broadcast (whether in digital or in analogue form);
is provided so as to be available for reception by members of the public; and
is not—
a restricted television service;
a television multiplex service;
a service provided under the authority of a licence under Part 1 of the 1990 Act to provide a television licensable content service; or
a service provided under the authority of a licence under Part 1 of the 1996 Act to provide a digital television programme service;
“television licensable content service” has the meaning given by section 232 of this Act;
“television multiplex service” has meaning given by section 241(1) of this Act to a multiplex service within the meaning of Part 1 of the 1996 Act;
“television programme service” means any of the following—
a television broadcasting service;
a television licensable content service;
a digital television programme service;
a restricted television service;
...
“text service” means any teletext service or other service in the case of which the visual images broadcast or distributed by means of the service consist wholly or mainly of non-representational images.
(2) In the case of any of the following services—
(a) a television broadcasting service or sound broadcasting service,
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(c) a television licensable content service or radio licensable content service,
(d) a digital television programme service or digital sound programme service,
(e) a restricted television service,
(f) an additional television service or additional radio service,
(g) a digital additional television service or a digital additional sound service,
the person, and the only person, who is to be treated for the purposes of this Part as providing the service is the person with general control over which programmes and other services and facilities are comprised in the service (whether or not he has control of the content of individual programmes or of the broadcasting or distribution of the service).
(3) For the purposes of this Part—
(a) the provision of a service by the BBC does not include its provision by a BBC company;
(b) the provision of a service by C4C does not include its provision by a C4 company;
(c) the provision of a service by S4C does not include its provision by an S4C company;
and, accordingly, control that is or is capable of being exercised by the BBC, C4C or S4C over decisions by a BBC company, C4 company or S4C company about what is to be comprised in a service shall be disregarded for the purposes of subsection (2).
(4) References in this Part to a television broadcasting service do not include references to any text service.
(5) References in this Part to imposing a charge on a person in respect of his reception of a service in, or in a part of, the United Kingdom include references to imposing charges—
(a) for his use of the service at a place in the United Kingdom or in that part of it;
(b) for an entitlement of his to receive it at such place;
(c) for the use of a facility by means of which he exercises such an entitlement; or
(d) for the service’s being made available for reception by him at such a place.
(6) In subsection (1) “controlled” and “participant” each has the same meaning as in Schedule 2 to the 1990 Act.
(7) In this section “non-representational images” means visual images which are neither still pictures nor comprised within sequences of visual images capable of being seen as moving pictures.
(1) In this Part, “designated internet programme service” means—
(a) an internet programme service provided by the BBC,
(b) an internet programme service provided by a public service broadcaster other than the BBC and designated by OFCOM under subsection (2) for the purposes of this Part, or
(c) an internet programme service provided by a person associated with a public service broadcaster and designated by OFCOM as described in paragraph (b).
(2) OFCOM may designate an internet programme service provided by a public service broadcaster other than the BBC or a person associated with a public service broadcaster if—
(a) the service satisfies the conditions in subsection (3), (4) or (5) that apply to it; and
(b) OFCOM consider that it is appropriate to designate the service.
(3) The conditions in the case of an internet programme service provided by the provider of a licensed public service channel or a person associated with the provider of that licensed public service channel are—
(a) that the service makes or would, if designated, be capable of making—
(i) a significant contribution to the fulfilment of the public service remit for that licensed public service channel, or
(ii) in a case where the provider of the service is, in relation to two or more licensed public service channels, either the provider of, or a person associated with the provider of, the channels, a significant contribution to the fulfilment of the public service remit for at least one of those licensed public service channels; and
(b) that the public service remit content included in the service is readily discoverable and is promoted by the service.
(4) The conditions in the case of an internet programme service provided by S4C or a person associated with S4C are—
(a) that the service makes or would, if designated, be capable of making a significant contribution to the fulfilment of S4C’s public service remit; and
(b) that the public service remit content included in the service is readily discoverable and is promoted by the service.
(5) The conditions in the case of an internet programme service provided by a person associated with the BBC are—
(a) that the service makes or would, if designated, be capable of making a significant contribution to the promotion of one or more of the BBC’s public purposes; and
(b) that the material contributing to the promotion of one or more of those purposes which is included in the service is readily discoverable and is promoted by the service.
(6) In considering whether an internet programme service provided by a person other than the BBC satisfies the conditions in subsection (3), (4) or (5) that apply to it, OFCOM must have regard to any statement for the time being published by OFCOM under section 362AC.
(7) In considering whether it is appropriate to designate an internet programme service provided by a public service broadcaster other than the BBC or a person associated with such a broadcaster, OFCOM must have regard, in particular, to the following matters—
(a) any proposals included in any such public service broadcaster’s latest statement of programme policy published under section 266 or 267 or paragraph 4 of Schedule 12 as to the contribution that the internet programme service will make towards fulfilling the public service remit for its licensed public service channel or (as the case may be) S4C’s public service remit;
(b) whether that proposed contribution is capable of satisfying the needs and interests of—
(i) a specific audience, in a case where the service would, if designated, be the second or further designated internet programme service provided by a public service broadcaster or a person associated with that broadcaster, or
(ii) a wide range of audiences, in any other case;
(c) in relation to any such public service broadcaster whose public service remit content is included in the internet programme service, how effective and efficient is the broadcaster’s monitoring of its performance so far as relating to the fulfilment of the public service remit for its licensed public service channel or (as the case may be) S4C’s public service remit.
(8) In considering whether it is appropriate to designate an internet programme service provided by a person associated with the BBC, OFCOM must have regard, in particular, to the following matters—
(a) any proposals included in a statement of policy made by the BBC in pursuance of the BBC Charter and Agreement as to the contribution that the service will make towards the promotion of one or more of the BBC’s public purposes;
(b) whether that proposed contribution is capable of satisfying the needs and interests of—
(i) a specific audience, in a case where the service would, if designated, be the second or further designated internet programme service provided by the BBC or a person associated with the BBC, or
(ii) a wide range of audiences, in any other case;
(c) how effective and efficient is the BBC’s monitoring of the contribution of persons associated with the BBC to the promotion of one or more of the BBC’s public purposes.
(9) Before designating an internet programme service, OFCOM must consult—
(a) the provider of the service;
(b) such other persons as OFCOM consider appropriate.
(10) In this Part, a reference to an internet programme service is a reference to—
(a) an on-demand programme service where the programmes viewed by a user of the service are accessed by the user by means of the internet,
(b) a non-UK on-demand programme service where the programmes viewed by a user of the service are accessed by the user by means of the internet, or
(c) a service which satisfies the requirements in subsection (11).
(11) The requirements are—
(a) that the principal purpose of the service is the provision of programmes,
(b) that the programmes viewed by a user of the service are accessed by the user by means of the internet, and
(c) that the programmes it provides to a user of the service are contained in—
(i) such on-demand programme service as is described in subsection (10)(a) or such non-UK on-demand programme service as is described in subsection (10)(b), and
(ii) another service which is, or two or more other services each of which is, such an on-demand programme service, such a non-UK on-demand programme service, or a service (other than those kinds of service) that consists of, or has as its principal purpose the provision of, programmes.
(12) In this section—
“public service remit”—
in relation to a Channel 3 service or Channel 5, has the meaning given by section 265(2);
in relation to Channel 4, has the meaning given by section 265(3);
in relation to S4C, has the meaning given by section 204A;
“public service remit content”, in relation to an internet programme service provided by a public service broadcaster other than the BBC or a person associated with such a broadcaster, means material included in the internet programme service that contributes to the fulfilment of—
the public service remit for the licensed public service channel in question, or
S4C’s public service remit (as the case may be).
(1) If an internet programme service provided by a person other than a public service broadcaster is designated under section 362AA(2), the designation is revoked on the person ceasing to be associated with—
(a) if the person is associated with only one public service broadcaster, that public service broadcaster, or
(b) if the person is associated with more than one public service broadcaster, all of those public service broadcasters.
(2) OFCOM may give notice under subsection (3) to a person other than the BBC who provides a designated internet programme service if OFCOM consider that there are reasonable grounds for believing that—
(a) a designated internet programme service provided by that person is not making such contribution as is described in subsection (3)(a), subsection (4)(a) or (as the case may be) subsection (5)(a) of section 362AA,
(b) the content included in the service which is of the description referred to in subsection (3)(b), subsection (4)(b) or (as the case may be) subsection (5)(b) of section 362AA is not readily discoverable or is not promoted by the service, or
(c) the service is not a service that it would be appropriate for OFCOM to designate under section 362AA(2).
(3) A notice under this subsection must—
(a) state that OFCOM consider that there are reasonable grounds for believing the matter in paragraph (a), (b) or (c) of subsection (2);
(b) give OFCOM’s reasons for that opinion;
(c) give OFCOM’s reasons for proposing to revoke the designation of the internet programme service;
(d) state that the person may make representations to OFCOM about the matters contained in the notice;
(e) specify the period within which such representations may be made.
(4) Where the period allowed for representations has expired, OFCOM must, after considering any representations that have been made—
(a) decide whether or not to revoke the designation, and
(b) give notice to the person of their decision.
(5) Where OFCOM decide to revoke a designation, a notice under subsection (4)(b) must—
(a) state that OFCOM are satisfied as to the matter in paragraph (a), (b) or (c) of subsection (2);
(b) give OFCOM’s reasons for being so satisfied.
(6) In considering whether there are reasonable grounds for believing the matter in paragraph (a), (b) or (c) of subsection (2) or whether they are satisfied as to that matter, OFCOM must have regard to any statement for the time being published by OFCOM under section 362AC.
(7) OFCOM must revoke a designation of an internet programme service under section 362AA(2) if the person providing the service requests them to do so.
(1) OFCOM must prepare and publish a statement providing—
(a) information about the methods applied in determining the matters in sections 362AA(3), (4) and (5) and 362AB(2), and
(b) such other information relating to the determination of those matters as OFCOM consider appropriate.
(2) OFCOM may revise or replace a statement published under this section and, where they do so, must publish the revised or replacement statement.
362AD Notifications in relation to designated internet programme services
(1) Where an internet programme service provided by a person associated with a public service broadcaster has been designated under section 362AA(2), the person must give notice to OFCOM if the person ceases to be a person associated with that public service broadcaster.
(2) A notice given to OFCOM under this section must—
(a) be sent in such manner as OFCOM may require;
(b) contain such information as OFCOM may require.
(1) In this Part, “television selection service” means a service or a dissociable section of a service, provided by means of the internet and in connection with internet television equipment, which consists of—
(a) the presentation of the internet programme services included in the service or the dissociable section of the service, and
(b) a facility that enables the user—
(i) to make a selection between those services or between programmes provided by those services or both, and
(ii) to access the service selected or the programme selected or both.
(2) In subsection (1), “internet television equipment” means any apparatus or combination of apparatus specified in regulations made by the Secretary of State setting out the descriptions of apparatus or combinations of apparatus that are internet television equipment for the purposes of this Part.
(3) Regulations made by virtue of subsection (2) may—
(a) provide for references to internet television equipment to include references to software used in association with apparatus, and
(b) describe apparatus or a combination of apparatus by reference to software used in association with the apparatus or any of it.
(4) Exceptions in regulations made by virtue of subsection (2) may include exceptions relating to the purpose or purposes for which a description of apparatus may be used in addition to the purpose of viewing internet programme services.
(5) The person, and the only person, who is to be treated for the purposes of this Part as providing a television selection service is the person who has general control over the manner in which the service presents to its users the internet programme services that are included in the service.
(6) The fact that a television selection service relies to any extent on algorithms to determine the prominence given to—
(a) an internet programme service included in the service, or
(b) any programme provided by an internet programme service included in the service,
does not prevent a person from having general control as described in subsection (5).
(7) The Secretary of State may by regulations—
(a) amend this section so as to alter the definition of “television selection service” or “internet television equipment”, and
(b) make such amendments or repeals of any provision of this Act or any other Act as appear to the Secretary of State to be expedient in consequence of the amendments made by virtue of paragraph (a).
(8) A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.
362AF Meaning of “regulated television selection service”
(1) In this Part, “regulated television selection service” means a television selection service which—
(a) is for the time being designated by regulations made by the Secretary of State, or
(b) is of a description specified in regulations made by the Secretary of State.
(2) The Secretary of State may not exercise the power under subsection (1)(a) so as to cause a television selection service to become a regulated television selection service unless the Secretary of State considers that the service is used by a significant number of members of the public in the United Kingdom.
(3) Regulations under subsection (1)(b) may, in particular, frame a description of television selection services by reference to—
(a) a television selection service being used, or being used in a manner specified in the regulations, by no fewer than such number of members of the public in the United Kingdom as may be specified in the regulations;
(b) the date on which a television selection service is first made available to members of the public in the United Kingdom;
(c) the functions that a television selection service is capable of carrying out or may be made capable of carrying out.
(4) Before making regulations under subsection (1)(a) or (b), the Secretary of State must have received a report under section 362AG relating to the television selection service or description of television selection services in question.
(1) OFCOM may prepare reports making recommendations about the exercise of the power under section 362AF(1)(a) or (b).
(2) Where—
(a) the Secretary of State proposes to make regulations under section 362AF(1)(a) or (b), and
(b) the Secretary of State has not received a report under subsection (1) relating to the television selection service or description of television selection services that would be affected by the proposed regulations,
the Secretary of State must request OFCOM to prepare a report making recommendations about the exercise of the power under section 362AF(1)(a) or (b) in relation to that service or services of that description.
(3) Where the Secretary of State makes a request under subsection (2), OFCOM must prepare such a report as soon as practicable.
(4) A report under subsection (1) or (3) relating to the exercise of the power under section 362AF(1)(a) must include OFCOM’s assessment of—
(a) the number of members of the public in the United Kingdom using that service and whether that number is significant;
(b) the manner in which that service is used by such persons;
(c) whether that service is capable of functioning as a regulated television selection service and the modifications, if any, that are needed to make it so capable;
(d) such matters as OFCOM consider likely to affect the matters referred to in paragraphs (a) to (c).
(5) A report under subsection (1) or (3) relating to the exercise of the power under section 362AF(1)(b) must include OFCOM’s assessment of—
(a) which television selection services are likely to fall within the description of television selection services in question;
(b) such matters as OFCOM consider relevant to the assessment described in paragraph (a).
(6) OFCOM must give the Secretary of State a report prepared under subsection (1) or (3).
(7) If the Secretary of State exercises the power under section 362AF(1)(a) or (b) in a manner which differs materially from recommendations made in a report under this section, the Secretary of State must publish, no later than the time at which the regulations are made, a statement giving the Secretary of State’s reasons for doing so.
(8) OFCOM must publish reports given to the Secretary of State under this section.
(9) OFCOM must prepare and publish a statement about the principles and methods applied by OFCOM in preparing a report under subsection (1) or (3).
(10) OFCOM may revise or replace a statement published under this section and, where they do so, must publish the revised or replacement statement.
362AH Notification by providers of television selection services
(1) A provider of a television selection service must give notice to OFCOM if the service is or becomes a television selection service of a description specified in regulations made by virtue of section 362AF(1)(b).
(2) A provider of a television selection service must give notice to OFCOM if, having been a service of a description specified in regulations made by virtue of section 362AF(1)(b), the service ceases to be a service of such a description.
(3) A provider of a regulated television selection service must give notice to OFCOM if the provider ceases to provide that service.
(4) A notice given to OFCOM under this section must—
(a) be sent in such manner as OFCOM may require;
(b) contain such information as OFCOM may require.
(1) OFCOM must establish and maintain up to date lists of—
(a) designated internet programme services; and
(b) regulated television selection services and their providers.
(2) OFCOM must publish the up to date lists on a publicly accessible part of their website.
362AJ Must-offer obligations in the case of designated internet programme services
(1) The provider of a designated internet programme service must at all times offer the service as available (subject to the need to agree terms) to be, in relation to every regulated television selection service, included in the regulated television selection service.
(2) The provider of a designated internet programme service must do its best to secure that, in relation to every regulated television selection service, arrangements are entered into, and kept in force, that ensure that the service is included in the regulated television selection service.
(3) The provider of a designated internet programme service must act consistently with the agreement objectives when entering into such arrangements and while they are in force.
(4) Subsections (1) to (3) do not apply where the provider of a designated internet programme service is the BBC.
(1) The provider of a regulated television selection service must—
(a) in respect of each designated internet programme service, enter into arrangements with the provider of the designated internet programme service for the regulated television selection service to include that designated internet programme service, and
(b) keep them in force.
(2) The provider of a regulated television selection service must act consistently with the agreement objectives when entering into arrangements in pursuance of subsection (1) and while they are in force.
(3) For provision applying where there is a dispute about the arrangements that should be made or their operation, see sections 362AT to 362AY.
(1) OFCOM must prepare and publish guidance about how providers of designated internet programme services and providers of regulated television selection services may act consistently with the agreement objectives.
(2) The reference in subsection (1) to acting consistently with the agreement objectives is to be treated, in relation to the BBC, as a reference to carrying out any duty of the BBC under the BBC Charter and Agreement that is comparable to the duty of providers of designated internet programme services other than the BBC under section 362AJ(3).
(3) OFCOM may revise and replace any guidance published under this section and, where they do, must publish the revised or replacement guidance.
(4) Before preparing guidance under this section (or revising or replacing it), OFCOM must consult—
(a) the Secretary of State, and
(b) such other persons as they consider appropriate.
(5) In exercising or deciding whether to exercise any of their powers under sections 362AU to 362AX, OFCOM must have regard to any guidance for the time being published under this section.
(1) In sections 362AJ to 362AL “the agreement objectives” are—
(a) that a designated internet programme service is given an appropriate degree of prominence within a regulated television selection service;
(b) that, in a case where a designated internet programme service contributes to—
(i) the fulfilment of the public service remit for a licensed public service channel,
(ii) the fulfilment of S4C’s public service remit, or
(iii) the promotion of one or more of the BBC’s public purposes,
the arrangements made between the provider of that designated internet programme service and the provider of a regulated television selection service do not adversely affect the ability of the provider of that channel to fulfil the public service remit for that channel, the ability of S4C to fulfil S4C’s public service remit or (as the case may be) the ability of the BBC to promote its public purposes;
(c) that arrangements so made do not disproportionately restrict how the provider of a regulated television selection service may make innovations in the ways that users may select and access internet programme services or programmes included in such services.
(2) The reference in subsection (1)(a) to a designated internet programme service being given an appropriate degree of prominence within a regulated television selection service includes a reference to an appropriate degree of prominence being given to public service remit content and any listed channel included in that designated internet programme service, so far as the prominence of that content or channel is capable of being affected by the operation of the regulated television selection service.
(3) The following are listed channels for the purposes of this section—
(a) any service of television programmes provided by the BBC so as to be available for use by members of the public;
(b) any Channel 3 service;
(c) Channel 4;
(d) Channel 5;
(e) S4C Digital.
362AN Duties relating to a designated internet programme service
(1) The provider of a designated internet programme service must ensure that—
(a) the service makes such contribution as is described in subsection (3)(a), subsection (4)(a) or (as the case may be) subsection (5)(a) of section 362AA, and
(b) such material included in the service as is described in subsection (3)(b), subsection (4)(b) or (as the case may be) subsection (5)(b) of section 362AA is readily discoverable and is promoted by the service.
(2) Subsection (1) does not apply where the provider of a designated internet programme service is the BBC.
362AO Duties relating to a regulated television selection service
(1) A provider of a regulated television selection service must secure that the manner in which its service presents internet programme services to its users in the United Kingdom gives an appropriate degree of prominence to each of the designated internet programme services included in its service.
(2) Subsection (1) does not require that a designated internet programme service be given prominence, or the same degree of prominence, in relation to every area of the United Kingdom.
(3) The reference in subsection (1) to giving an appropriate degree of prominence to a designated internet programme service included in a regulated television selection service includes a reference to giving an appropriate degree of prominence to—
(a) material that is public service remit content or contributes to the promotion of one or more of the BBC’s public purposes included in that designated internet programme service, and
(b) any listed channel included in that designated internet programme service,
so far as the prominence of that material or channel is affected by the operation of the regulated television selection service.
(4) A provider of a regulated television selection service must incorporate features in the service that secure that persons with disabilities, in particular those affecting their sight or hearing or both—
(a) are able, so far as practicable, to make use of the service for all the same purposes as persons without disabilities; and
(b) are informed about, and are able to make use of, whatever assistance for disabled people is provided in relation to the internet programme services included in the service.
(5) In this section “assistance for disabled people” has the same meaning as in Part 3 (see section 362(1)).
(1) OFCOM must issue a code of practice describing actions that OFCOM recommend for the purpose of securing that the manner in which a regulated television selection service presents internet programme services to its users complies with the duties in section 362AO.
(2) OFCOM may—
(a) revise a code of practice issued under this section and issue the code as revised;
(b) withdraw a code of practice issued under this section and issue a new code of practice.
(3) OFCOM must—
(a) publish a code of practice issued under this section in such manner as they consider appropriate;
(b) keep a code of practice issued under this section under review.
(4) If requested by the Secretary of State to review all or part of a code of practice issued under this section, OFCOM must review the code or that part of it.
(5) OFCOM must secure that the actions recommended in a code of practice issued under this section are consistent with the agreement objectives.
(6) The actions recommended in a code of practice issued under this section may include—
(a) actions relating to particular descriptions of regulated television selection services;
(b) actions relating to particular descriptions of internet programme services.
(1) The provider of a regulated television selection service is to be treated as complying with the duty in section 362AO(1) or (4) if the provider takes the actions described in the code of practice which are recommended for the purpose of complying with the duty.
(2) A failure by the provider of a regulated television selection service to act in accordance with a provision of the code of practice does not of itself make the provider liable to legal proceedings before a court or tribunal.
(3) In any legal proceedings before a court or tribunal, the court or tribunal must take into account a provision of the code of practice in determining any question arising in the proceedings if—
(a) the question relates to a time when the provision was in force, and
(b) the provision appears to the court or tribunal to be relevant to the question.
(4) OFCOM must take into account a provision of the code of practice in determining any question arising in connection with the carrying out by them of a relevant function if—
(a) the question relates to a time when the provision was in force, and
(b) the provision appears to OFCOM to be relevant to the question.
(5) In this section, “relevant function” means a function conferred on OFCOM by any of the following provisions—
(a) sections 362AT to 362AY (references of disputes to OFCOM), and
(b) sections 362AZ to 362AZ5 (enforcement).
(1) Before issuing a code of practice under section 362AP, OFCOM—
(a) must publish a draft of the code or (as the case may be) a draft of the revisions of the existing code;
(b) must consult the following about the draft—
(i) the Secretary of State;
(ii) public service broadcasters;
(iii) such persons who appear to OFCOM to represent providers of regulated television selection services;
(iv) such other persons as OFCOM consider appropriate;
(c) may make such alterations to the draft as OFCOM consider appropriate following the consultation.
(2) Subsection (1) does not apply in relation to revisions of the code of practice if—
(a) OFCOM give the Secretary of State a draft of the revisions of the existing code, and
(b) the Secretary of State agrees that it is not necessary for subsection (1) to apply in relation to the revisions.
(1) OFCOM may by notice (an “information notice”) require a person within subsection (4) to provide them with any information that they require for the purpose of carrying out their functions under this Part.
(2) The power conferred by subsection (1) includes power to require a person within subsection (4) to obtain or generate information.
(3) The power conferred by subsection (1) must be exercised in a way that is proportionate to the use to which the information is to be put by OFCOM.
(4) The persons within this subsection are—
(a) a public service broadcaster;
(b) a provider of an internet programme service;
(c) a provider of a television selection service;
(d) a person who provides an ancillary service in relation to an internet programme service or a television selection service;
(e) a manufacturer of apparatus that is, or in combination with other apparatus is, internet television equipment;
(f) a person who creates or provides software used in association with such apparatus;
(g) a person who was within any of paragraphs (a) to (f) at a time to which the required information relates;
(h) a person who is not within any of paragraphs (a) to (g) but who appears to OFCOM to have, or to be able to obtain or generate, information required by them as mentioned in subsection (1).
(5) The information that OFCOM may require under subsection (1) includes, in particular, information that they require for any one or more of the following purposes—
(a) the purpose of deciding whether to designate an internet programme service for the purposes of this Part or to revoke such a designation;
(b) the purpose of assessing compliance with section 362AD(1) (duty to notify OFCOM where cease to be associated with a public service broadcaster);
(c) the purpose of preparing a report under section 362AG (advice from OFCOM about the designation of television selection services etc);
(d) the purpose of assessing compliance with section 362AH (duty of providers of television selection services to notify OFCOM);
(e) the purpose of assessing compliance with any duty of a provider of a designated internet programme service under section 362AJ or 362AN (must-offer and content of designated internet programme services obligations);
(f) the purpose of assessing compliance with any duty of the BBC under the BBC Charter and Agreement that is comparable to any duty of a provider of a designated internet programme service under section 362AJ or 362AN;
(g) the purpose of assessing compliance with any duty of a provider of a regulated television selection service under section 362AK or 362AO (must-carry and prominence obligations);
(h) the purpose of preparing or reviewing a code of practice under section 362AP (code of practice relating to duties under section 362AO);
(i) the purpose of OFCOM’s functions under sections 362AT to 362AY (dispute resolution);
(j) the purpose of assessing compliance with any requirements imposed by a confirmation decision under section 362AZ1;
(k) the purpose of determining the appropriate fee that a provider is required to pay under section 362AZ6;
(l) the purpose of OFCOM’s monitoring role under section 362AZ9;
(m) the purpose of ascertaining the amount of a person’s or a group of entities’ qualifying worldwide revenue for the purposes of paragraph 3 or 4 of Schedule 16A.
(6) An information notice must—
(a) specify or describe the information to be provided,
(b) specify why OFCOM require the information,
(c) specify the form and manner in which the information must be provided, and
(d) contain information about the consequences of not complying with the notice.
(7) An information notice must specify when the information must be provided which may be—
(a) on or by a specified date, or
(b) within a specified period.
(8) The power conferred by subsection (1) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings.
(9) A person to whom an information notice is given must provide the information in accordance with any requirements included in the notice (subject to subsection (10)).
(10) The duty under subsection (9) does not require a disclosure of information if that disclosure would contravene the data protection legislation (but, in determining whether a disclosure would do so, that duty is to be taken into account).
(11) For the purposes of subsection (4)(d), a service is an “ancillary service” in relation to an internet programme service or a television selection service if it facilitates the provision of that service (or part of it), whether directly or indirectly.
(12) In this section, a reference to the functions of OFCOM under this Part includes a reference to their functions under Schedules 16A and 16B, so far as relating to this Part.
(13) In this section, “data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).
(1) This section applies in the case of a dispute between the provider of a designated internet programme service and the provider of a regulated television selection service about—
(a) the arrangements that should be made between them in order to give effect to the prominence duties that relate to them, or
(b) the operation of arrangements made between them in order to give effect to those duties.
(2) For the purposes of subsection (1)—
(a) the prominence duties relating to the provider of a designated internet programme service are—
(i) in the case of a provider other than the BBC, the duties under section 362AJ;
(ii) in the case of the BBC, any duties of the BBC under the BBC Charter and Agreement that are comparable to the duties of other providers under section 362AJ;
(b) the prominence duties relating to the provider of a regulated television selection service are the duties under sections 362AK and 362AO(1).
(3) Any one or more of the parties to the dispute may refer it to OFCOM but only if (and when) there is no realistic prospect of resolving the dispute without referring it.
(4) OFCOM may invite any one or more of the parties to the dispute to make a reference under subsection (3).
(5) OFCOM—
(a) may impose requirements about the manner in which a reference must be made by publishing a notice setting out those requirements,
(b) may withdraw or modify any requirements that have been imposed by publishing a further notice, and
(c) in exercising their powers under paragraph (a) or (b), may make different provision for different cases.
(6) OFCOM may publish a notice under subsection (5) in such ways as they consider appropriate for bringing the notice to the attention of those who, in their opinion, are likely to be affected by it.
(1) This section applies where—
(a) a dispute is referred to OFCOM under section 362AT(3), and
(b) any requirements imposed by OFCOM under section 362AT(5) are met in relation to the reference.
(2) OFCOM must decide whether or not it is appropriate for them to handle the dispute.
(3) Subsection (4) applies where—
(a) the dispute is of the kind described in section 362AT(1)(a) (disputes between the provider of a designated internet programme service and the provider of a regulated television selection service about the arrangements that should be made between them for the purposes of their prominence duties), and
(b) unless the dispute is resolved, it is highly likely that the designated internet programme service will—
(i) not be included in the regulated television selection service, or
(ii) not be given the appropriate degree of prominence within it.
(4) OFCOM must decide that it is appropriate for them to handle the dispute unless they consider—
(a) that there are alternative means available for resolving the dispute,
(b) that a resolution by those means is likely to result in an outcome that is consistent with the agreement objectives, and
(c) that a prompt and satisfactory resolution of the dispute is likely if those alternative means are used.
(5) As soon as reasonably practicable after OFCOM have decided whether or not it is appropriate for them to handle the dispute, they must inform each of the parties to the dispute of—
(a) their decision and the date on which it was made, and
(b) their reasons for it.
(6) Where OFCOM decide that it is not appropriate for them to handle the dispute, the dispute may subsequently be referred back to OFCOM by one or more of the parties if—
(a) the parties have used alternative means for resolving the dispute but it has not been resolved within a reasonable period of time, or
(b) the parties have not used alternative means for resolving the dispute but OFCOM consider that there is a satisfactory explanation for that.
(1) This section applies where—
(a) OFCOM decide under section 362AU(2) whether or not it is appropriate for them to handle a dispute, or
(b) a dispute is referred back to OFCOM under section 362AU(6).
(2) OFCOM may do one or more of the following—
(a) make an interim declaration setting out the rights and obligations of the parties to the dispute;
(b) give an interim direction fixing the terms or conditions of transactions between the parties to the dispute;
(c) give an interim direction imposing an obligation on the parties to the dispute, and enforceable by them, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM.
(3) OFCOM must exercise their powers under subsection (2) in the way that seems to them to be most appropriate in the light of the agreement objectives.
(4) Before exercising their powers under subsection (2), OFCOM must—
(a) give the parties to the dispute an opportunity to make representations about the exercise of those powers, and
(b) consider those representations.
(5) In other respects, the procedure to be followed by OFCOM in connection with the exercise of their powers under subsection (2) is to be the procedure that OFCOM consider appropriate.
(6) In the case of a dispute referred back to OFCOM under section 362AU(6), OFCOM may, in exercising their powers under subsection (2), take account of decisions already made by others in the course of an attempt to resolve that dispute by alternative means.
(7) OFCOM must withdraw an interim declaration or an interim direction if requested to do so by the parties to the dispute.
(8) OFCOM may withdraw an interim declaration or an interim direction otherwise than at the request of the parties to the dispute if they consider that it is appropriate to do so in the light of the agreement objectives.
(9) An interim declaration or an interim direction binds the parties to the dispute (unless withdrawn by OFCOM or ceasing to have effect under section 362AY(4)).
(10) In this section—
(a) “an interim declaration” means a declaration that has effect until the resolution of the dispute by OFCOM or by any alternative means (unless withdrawn by OFCOM or ceasing to have effect under section 362AY(4));
(b) “an interim direction” means a direction that has effect until the resolution of the dispute by OFCOM or by any alternative means (unless withdrawn by OFCOM or ceasing to have effect under section 362AY(4)).
(1) This section applies where—
(a) OFCOM decide under section 362AU(2) that it is appropriate for them to handle a dispute, or
(b) a dispute is referred back to OFCOM under section 362AU(6).
(2) OFCOM must—
(a) consider the dispute, and
(b) make a determination for resolving it.
(3) The procedure for the consideration and determination of the dispute is to be the procedure that OFCOM consider appropriate.
(4) In the case of a dispute referred back to OFCOM under section 362AU(6), that procedure may involve allowing the continuation of a procedure that has already begun for resolving the dispute by alternative means.
(5) Unless there are exceptional circumstances, OFCOM must make their determination before the end of the period of four months beginning with—
(a) where OFCOM decide under section 362AU(2) that it is appropriate for them to handle the dispute, the day on which they make that decision;
(b) where the dispute is referred back to OFCOM under section 362AU(6), the day on which it is referred back.
(6) Where it is practicable for OFCOM to make their determination before the end of the period of four months referred to in subsection (5), they must make it as soon in that period as is practicable.
(7) The requirements of subsections (5) and (6) are subject to section 362AY(4).
(8) OFCOM must—
(a) send a copy of their determination, together with a full statement of their reasons for it, to every party to the dispute, and
(b) publish so much of their determination as (having regard, in particular, to the need to preserve commercial confidentiality) they consider it appropriate to publish.
(9) OFCOM may fulfil their duty under subsection (8)(b) in such ways as they consider appropriate for bringing the material that they consider it appropriate to publish to the attention of members of the public.
(1) This section applies where OFCOM make a determination for resolving a dispute under section 362AW(2).
(2) OFCOM may do one or more of the following—
(a) make a declaration setting out the rights and obligations of the parties to the dispute;
(b) give a direction fixing the terms or conditions of transactions between the parties to the dispute;
(c) give a direction imposing an obligation on the parties to the dispute, and enforceable by them, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM;
(d) for the purpose of giving effect to a determination by OFCOM of the proper amount of a charge in respect of which amounts have been paid by one of the parties to the dispute to the other, to give a direction, enforceable by the party to whom the sums are to be paid, requiring the payment of sums by way of adjustment of an underpayment or overpayment.
(3) OFCOM must exercise their powers under subsection (2) in the way that they consider to be the most appropriate for meeting the agreement objectives.
(4) In the case of a dispute referred back to OFCOM under section 362AU(6)—
(a) OFCOM may, in making their determination, take account of decisions already made by others in the course of an attempt to resolve that dispute by alternative means, and
(b) the determination made by OFCOM may include provision ratifying such decisions.
(5) Where OFCOM make a determination for resolving a dispute, they may require a party to the dispute—
(a) to make payments to another party to the dispute in respect of costs and expenses incurred by that other party in consequence of the reference of the dispute to OFCOM or in connection with it;
(b) to make payments to OFCOM in respect of costs and expenses incurred by them in dealing with the dispute.
(6) OFCOM may determine—
(a) the amount of any costs or expenses required to be paid under subsection (5)(a) or (b), and
(b) when those costs or expenses are to be paid.
(7) OFCOM may not require a party to the dispute to make payments to another party or to OFCOM under subsection (5) unless they have considered—
(a) the conduct of the party before and after the reference to OFCOM (including, in particular, whether any attempts have been made to resolve the dispute), and
(b) whether OFCOM have made a decision in the party’s favour in respect of the whole or a part of the dispute.
(8) A determination made by OFCOM for resolving a dispute referred to them under section 362AT(3), or referred back to them under section 362AU(6), binds the parties to the dispute.
(1) This section applies where—
(a) a dispute is referred to OFCOM under section 362AT(3), or
(b) a dispute is referred back to OFCOM under section 362AU(6).
(2) The reference, or reference back, does not prevent the person making it, the other party to the dispute, OFCOM or any other person from bringing, or continuing, any legal proceedings with respect to any of the matters under dispute.
(3) The reference, or reference back, also does not prevent OFCOM from—
(a) giving a notification in respect of something that they have reasonable grounds for believing to be a contravention of an obligation imposed by or under an enactment;
(b) exercising any of their powers under any enactment in relation to a contravention of an obligation imposed by or under an enactment;
(c) taking any other step in preparation for, or with a view to, doing anything mentioned in the preceding paragraphs.
(4) If, in any legal proceedings with respect to a matter to which a dispute relates, the court orders the handling of the dispute by OFCOM to be stayed or sisted—
(a) OFCOM are required to make a determination for resolving the dispute only if the stay or sist is lifted or expires,
(b) the period during which the stay or sist is in force must be disregarded in determining the period within which OFCOM are required to make a determination, and
(c) any interim declaration or interim direction made or given by OFCOM under section 362AV(2) ceases to have effect.
(5) In this section, “legal proceedings” means civil or criminal proceedings in or before a court.
(6) Subsection (2) is subject to—
(a) section 362AX (8), and
(b) any agreement to the contrary binding the parties in dispute.
(1) OFCOM may give a notice under this section (a “provisional notice of contravention”) to a person if they consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with—
(a) any duty under section 362AD, 362AJ or 362AN (duties of providers of designated internet programme services under this Part), or
(b) any duty under section 362AH, 362AK or 362AO (duties of providers of regulated television selection services under this Part).
(2) OFCOM may also give a provisional notice of contravention to a person to whom an information notice has been given if they consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with the duty under section 362AS(9).
(3) A provisional notice of contravention must—
(a) specify the duty as regards which (in OFCOM’s opinion) there are reasonable grounds for believing the person has failed, or is failing, to comply, and
(b) give OFCOM’s reasons for that opinion.
(4) A provisional notice of contravention may also specify steps that OFCOM consider the person needs to take in order to—
(a) comply with the duty, or
(b) remedy the failure to comply with it.
(5) A provisional notice of contravention may also state that OFCOM propose to impose a penalty on the person and, in such a case, the notice must—
(a) give OFCOM’s reasons for proposing to impose the penalty,
(b) indicate the amount in sterling of the penalty that is being proposed, and
(c) give OFCOM’s reasons for proposing a penalty of that amount, including any aggravating or mitigating factors that OFCOM propose to take into account.
(6) A provisional notice of contravention must—
(a) state that the person may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice, and
(b) specify the period within which such representations may be made.
(7) A provisional notice of contravention may be given in respect of a failure by the same person to comply with more than one duty and, in such a case, the notice may include a proposal to impose a single penalty in respect of some or all of those duties (as an alternative to separate penalties).
(8) Where a provisional notice of contravention is given in respect of a continuing failure to comply with a duty, the notice—
(a) may be given in respect of any period during which the failure has continued,
(b) must specify that period, and
(c) may include a proposal to impose no more than one penalty in respect of that period.
(9) Where a provisional notice of contravention is given to a person in respect of a failure to comply with a duty, a further provisional notice of contravention in respect of a failure to comply with that same duty may be given to that person only—
(a) in respect of a separate instance of the failure that occurs after the first notice is given,
(b) where a period is specified in the first notice in accordance with subsection (8)(b), in respect of the continuation of the failure after the end of that period, or
(c) if the notice is withdrawn without a confirmation decision under section 362AZ1 having been given to the person in respect of that failure.
(10) OFCOM may give a provisional notice of contravention to—
(a) a person who was but is no longer a provider of a regulated television selection service, or
(b) a person who was but is no longer a provider of a designated internet programme service,
if that person was a provider of a regulated television selection service or (as the case may be) a designated internet programme service at the time of the failure to which the notice relates.
(1) This section applies where—
(a) OFCOM have given a provisional notice of contravention to a person in relation to a failure to comply with a duty or duties, and
(b) the period allowed for representations has expired.
(2) After considering any representations that have been made (and any supporting evidence), OFCOM must decide whether or not to give the person a further notice under this section (a “confirmation decision”).
(3) OFCOM may decide to give a person a confirmation decision only if they are satisfied that the person has failed, or has been failing, to comply with the notified duty or (as the case may be) one or more of the notified duties.
(4) For the purposes of this section and sections 362AZ2 and 362AZ3, a “notified duty” means a duty specified in the provisional notice of contravention.
(5) If OFCOM decide not to give a person a confirmation decision (whether because they are not satisfied as described in subsection (3) or for any other reason), they must inform the person of that fact.
(6) A confirmation decision must—
(a) state that OFCOM are satisfied that the person has failed, or has been failing, to comply with one or more notified duties, and
(b) give OFCOM’s reasons for being satisfied as described in paragraph (a).
(7) A confirmation decision may require the person to take such steps as OFCOM consider appropriate for either or both of the following purposes—
(a) complying with a notified duty or duties;
(b) remedying the failure to comply with that duty or those duties.
(8) Where a provisional notice of contravention stated that OFCOM proposed to impose a penalty in relation to a notified duty or (by virtue of section 362AZ(7)) in relation to notified duties, a confirmation decision may require the person to pay a penalty, of an amount in sterling determined by OFCOM, in relation to that duty or (as the case may be) those duties.
(9) The amount determined by OFCOM under subsection (8) may be greater than the amount indicated in the provisional notice of contravention in accordance with section 362AZ(5)(b).
(10) OFCOM may give a confirmation decision to—
(a) a person who was but is no longer a provider of a regulated television selection service, or
(b) a person who was but is no longer a provider of a designated internet programme service,
if that person was a provider of a regulated television selection service or (as the case may be) a designated internet programme service at the time of the failure to which the notice relates.
(1) This section applies where a confirmation decision requires the person to whom it is given to take steps as provided for by section 362AZ1(7).
(2) The notice must—
(a) specify the steps that are required and the notified duty or duties to which each relates,
(b) give OFCOM’s reasons for requiring those steps to be taken,
(c) specify a reasonable period within which each of the steps specified in the notice must be taken, and
(d) contain information about the consequences of not taking the steps (including information about further kinds of enforcement action that it would be open to OFCOM to take).
(3) Where a confirmation decision requires a person to take steps, the person to whom the notice is given has a duty to take those steps.
(4) The duty under subsection (3) is enforceable in civil proceedings by OFCOM—
(a) for an injunction;
(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988;
(c) for any other appropriate remedy or relief.
(1) This section applies where a confirmation decision imposes one or more penalties (see section 362AZ1(8)).
(2) In relation to each penalty imposed, the notice must—
(a) give OFCOM’s reasons for their decision to impose the penalty,
(b) specify each notified duty to which the penalty relates,
(c) give OFCOM’s reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account,
(d) specify a reasonable period within which the penalty must be paid, and
(e) contain information about the consequences of not paying the penalty (including information about the kinds of enforcement action that it would be open to OFCOM to take).
(3) The period specified under subsection (2)(d) for the payment of a penalty must be at least 28 days beginning with the day on which the confirmation decision is given.
(4) Schedule 16A contains further provision about the imposition of a penalty by a confirmation decision.