Commission Decision of 16 October 2007 on the compatibility with Community law of measures taken by the United Kingdom pursuant to Article 3a(1) of Council Directive 89/552/EEC on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities (Text with EEA relevance) (2007/730/EC) (c. 730)

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ANNEX U.K.

SCHEDULE

Regulation 3 Amendments of broadcasting act 1996: sporting and other events of national interest U.K.

1. For section 98 there is substituted: U.K.

Categories of service U.K.

98.

(1) For the purposes of this Part, television programme services and EEA satellite services shall be divided into two categories as follows: U.K.

(a)

those television programme services and EEA satellite services which for the time being satisfy the qualifying conditions, and

(b)

all other television programme services and EEA satellite services.

(2) In this section, ‘the qualifying conditions’, in relation to a service, means the conditions: U.K.

(a)

that the service is provided without any consideration being required for reception of the service, and

(b)

that the service is received by at least 95 % of the population of the United Kingdom.

(3) There shall be disregarded for the purposes of subsection (2)(a) any fee payable in respect of a television licence, as defined by section 1(7) of the Wireless Telegraphy Act 1949. U.K.

(4) The condition in subsection (2)(b): U.K.

(a)

is to be taken to be satisfied in relation to a regional Channel 3 service if it is satisfied in relation to Channel 3 as a whole, and

(b)

is to be taken to be satisfied in relation to Channel 4 if it is satisfied in relation to Channel 4 and S4C taken together.

(5) The Commission shall from time to time publish a list of the television programme services and EEA satellite services which appear to them to satisfy the qualifying conditions. U.K.

(6) In this section, ‘EEA satellite service’ means any service which: U.K.

(a)

consists in the transmission for general reception of television programmes by satellite, and

(b)

is provided by a person who for the purposes of Council Directive 89/552/EEC is under the jurisdiction of an EEA State other than the United Kingdom.

[…]

3. In Section 101 (restriction on televising of listed event), in subsection (1), for ‘person’, in the first place where it occurs, there is substituted ‘television programme provider’. U.K.

[…]

9. In section 105(1) (interpretation of Part IV): U.K.

(a)

after the definition of ‘the Commission’ there is inserted: ‘designated event, in relation to an EEA State other than the United Kingdom, has the meaning given by section 101A;’;

(b)

in the definition of ‘live’, before ‘shall’ there is inserted ‘in relation to the televising of a listed event’; and

(c)

after the definition of ‘national Channel 3 service’ and ‘regional Channel 3 service’ there is inserted: ‘S4C has the same meaning as in Part I of the 1990 Act;’

[Extracts from the ITC Code on Sports and other Listed Events, revised January 2000] U.K.

Code on sports and other listed events U.K.

(revised January 2000)

Foreword U.K.

1. The Broadcasting Act 1996, (the ‘Act’) as amended by the Television Broadcasting Regulations 2000 (the ‘Regulations’), requires the ITC to draw up, and from time to time review, a code giving guidance on certain matters relating to the televising of sports and other events of national interest which have been listed by the Secretary of State for Culture, Media and Sport. This code has been produced by the ITC, after consultation with broadcasters, sports bodies, the holders of sports rights and other interested parties, for the purpose of fulfilling this statutory duty, as defined under Section 104 of the Act. […] U.K.

2. The Act restricts the acquisition by television programme providers of exclusive rights to the whole or any part of live television coverage of listed events and the broadcasting on an exclusive basis of such coverage without the previous consent of the ITC (see Part IV of the Act). Under the Act the ITC has powers to impose a financial penalty on its licensees if the restrictions on broadcasting live coverage of listed events have not been observed, if the ITC has been given false information or if material information has been withheld. In the case of the BBC and S4C the ITC must report the matter to the Secretary of State. The ITC will have regard to the provisions of the Code in exercising these powers. U.K.

3. ‘Listed events’ are drawn up by the Secretary of State in accordance with the Act, and the current list is at Appendix 1. The Secretary of State may add events to and delete events from the list at any time, but only after consultation with the BBC, the Welsh Authority, the ITC and the holder of the rights for the event in question. In June 1998 the Secretary of State extended the list to include Group B events on the understanding that they would be treated differently from Group A events. Group A events are those events which may not be covered live on an exclusive basis unless certain criteria are met. The criteria and matters to be taken into account by the ITC are set out at paragraphs 12 to 16. Group B events are those events that may not be broadcast live on an exclusive basis unless adequate provision has been made for secondary coverage. The minimum standard of secondary coverage the ITC will regard as adequate provision is set out at paragraphs 17 and 18. U.K.

[…]

General provision and background U.K.

6. For the purpose of the live broadcasting of listed events the Act defines two categories of television programme services: those television programme services and EEA satellite services which for the time being satisfy the qualifying conditions (the first category) and all other television programme services and EEA satellite services (the second category). The qualifying conditions are defined as (a) that the service is provided without any consideration being required for reception for the service and (b) that the service is received by at least 95 % of the population of the United Kingdom. Television programme services and EEA satellite services which fall within the first category will appear in a list published from time to time by the ITC (see Appendix 2). These requirements are set out in the Act as amended by the Television Broadcasting Regulations 2000. Any contract for televising live coverage of a listed event which is entered into by a broadcaster must state that the rights are available for showing the event on a service falling within only one of the two categories, i.e., separate contracts must exist for each category. A broadcaster providing a service in either category (the first service) is prohibited from showing exclusively live coverage of the whole or any part of a Group A event without the previous consent of the Commission unless a broadcaster providing a service in the other category (the second service) has acquired the right to show live coverage of the event or the same part of the event. The area served by the second service must consist of or include the whole, or substantially the whole, of the area served by the first service. The first and second services may be provided by licensees in the same ownership, but between them they must include a broadcaster in each of the two categories described above. U.K.

7. The restrictions apply only to rights acquired either after the commencement of Section 101 of the 1996 Act, i.e. 1 October 1996 or after the Secretary of State began to consult rights holders about changes to the list, i.e. 25 November 1997, as shown in Appendix 1. U.K.

8. An event may be listed because it is of ‘national’ interest within England, Scotland, Wales or Northern Ireland separately. This is the basis on which the Scottish FA Cup Final, for example, has been listed. The Act allows for those events to be shown only in the relevant part of the United Kingdom in which there is likely to be most viewer interest. The reference to Channel 3 in Appendix 2, therefore, means individual or groups of regional Channel 3 services, or Channel 3 as a whole. U.K.

9. The Act is concerned with providing an opportunity for live coverage to be made available. It is important to emphasise that the Act does not require or guarantee live coverage of listed events, including coverage on Channel 3, Channel 4 and the BBC. Nor does the Act prohibit exclusive live coverage of listed events on these or other services subjects to the ITC being satisfied that certain criteria have been met (see paragraphs 12-18). U.K.

10. The specific guidance which the ITC is required to give is set out below. The ITC will keep this guidance under review and may amend it in the light of experience. U.K.

Definition of ‘live’ U.K.

11. Section 104 of the Act requires the ITC to specify the circumstances in which the coverage of listed events generally, or of a particular listed event, is, or is not, to be treated as live. In considering this matter the ITC has taken the view that the interests of viewers lie in allowing them to participate in the event as it happens, as far as possible. This suggests that live television coverage of most sports events, including those taking place in different time zones, should be defined as coverage which is simultaneous with the event (i.e. as the event is happening). However, given the different nature and length of events, no single definition is possible. The following interpretation should allow for necessary flexibility: U.K.

• the restrictions on live coverage will apply while the event concerned is in progress,

• if the event involves separate games or matches, the restrictions will apply while each game or match is in progress,

• in the case of a single event which is scheduled to last over several days the restrictions will apply to each day’s play, while it is in progress,

• in the case of an event which consists of defined separate parts which overlap in time (e.g. the Olympic Games or the FIFA World Cup Finals) and cannot therefore be televised simultaneously in full, the restrictions will apply to each match or competition as if it was a single event.

Matters to be taken into account in giving or revoking consent for exclusive coverage U.K.

12. Under Section 104(1)(b) of the Act the ITC is required to provide guidance as to the matters it will take into account in determining whether to grant its consent to a broadcaster providing a service in one category (the first service) to provide exclusive live coverage of an event (of part of an event) where no broadcaster providing a service in the other category (the second service) has acquired the same rights, or where the area for which the second service is to be provided does not consist of or include the whole, or substantially the whole, of the area for which the first service is provided. U.K.

13. In deciding whether to give its consent it may be sufficient for the ITC to establish that the availability of the rights was generally known and no broadcaster providing a service in the other category had expressed an interest in their acquisition to the rights holder, or had not bid for the rights. However, the ITC will wish to be satisfied that broadcasters have had a genuine opportunity to acquire the rights on fair and reasonable terms and, in reaching a view, will take account of some or all of the following criteria: U.K.

• any invitation to express interest, whether in the form of public advertisement or closed tender, in the acquisition of the rights must have been communicated openly and simultaneously to broadcasters providing services in both categories,

• at the beginning of any negotiation the documentation and/or marketing literature must set out in all material respects the process for negotiating and acquiring the rights and all material terms and conditions, including what rights were available,

• if the rights to the listed event were included in a package of rights, the package must not have been more attractive to broadcasters providing services in one of the two categories. Preferably, the rights should be capable of being purchased independently of other rights, e.g. to highlights, delayed transmissions, other events,

• the conditions or costs attached to the acquisition of the rights (for example, production costs) must have been clearly stated and must not be preferential to one category of service,

• the price sought for the rights must have been fair, reasonable and non-discriminatory as between the two categories of programme service. What is a fair price will depend upon the rights being offered and the value of those rights to broadcasters. A wide range of prices is likely to be regarded as fair but when required to make its own judgment on the matter the ITC will have regard to, inter alia:

• previous fees for the event or similar events,

• time of day for live coverage of the event,

• the revenue or audience potential associated with the live transmission of the event (e.g. the opportunity to sell advertising and sponsorship; the prospects for subscription income),

• the period for which rights are offered, and

• competition in the market place.

14. A genuine opportunity to acquire the rights also requires that broadcasters are given a reasonable time in which to do so. What constitutes a reasonable time will depend upon the circumstances of each case, including the complexity of negotiations and the production and transmission of the programme surrounding the event, and the proximity of the event to the date on which the rights are offered. The time allowed should give all parties a realistic opportunity to negotiate and reach agreement, but should not be unduly protracted, thereby preventing or restricting broadcasters from complying with this Code. U.K.

15. The ITC’s consent is also required where the area for which the service is to be provided does not consist of or include the whole, or substantially the whole, of the area for which the other service is to be provided. In considering whether to give its consent the ITC will take account of the interests of the viewers in the different areas and the transmission coverage areas of the different broadcasters. U.K.

16. Consent will normally be given for the full period for which rights are acquired in recognition of the fact that the price paid will, inter alia, reflect the duration of the rights. However, the ITC will revoke its consent if the broadcaster to whom the consent has been given requests it, or if the consent has been given on the basis of false or misleading information. Additionally, the ITC will consider revoking its consent if it appears that rights have been acquired for an extended period in order to circumvent the spirit of the Act. In determining what is an extended period the ITC will have regard to precedents for this and similar events, including the periods for which rights are granted to non-United Kingdom broadcasters for overseas transmissions. U.K.

17. For those events listed in Group B in Appendix 1, the ITC will give its consent to exclusive live coverage of an event by a broadcaster providing a service in one category (the first service) if adequate provision has been made for secondary coverage by a broadcaster providing a service in the other category (the second service). The minimum which the ITC will consider to be adequate is where the second service has acquired rights for the provision of edited highlights or delayed coverage amounting to at least 10 % of the scheduled duration of the event (or the play in the event taking place on any on day), subject to a minimum of 30 minutes for an event (or the play in the event on any day) lasting an hour or more, whichever is the greater. For these purposes, where an event has a number of different components taking place concurrently the scheduled duration of the event is defined as the time elapsed between the scheduled beginning of the first component of the event on that day. The second service must have editorial control over the content and scheduling of the edited highlights or delayed coverage except that a restriction may be imposed that the second service shall not begin broadcasting the edited highlights or delayed coverage until a period has elapsed following the scheduled conclusion of the event (or the play in the event on any day). The maximum period which may be set is follows: U.K.

For an event scheduled to finish	Maximum delay
After midnight and up to 8 am	Edited highlights or delayed coverage to start not later than 10.00 am.
Between 8.00 am and 8.30 pm	Up to 2 hours.
Between 8.30 pm and 10.00 pm	Edited highlights or delayed coverage to start not later than 10.30 pm.
Between 10.00 pm and midnight	Up to 30 minutes.

18. In addition to the above, the right to provide live radio commentary on the event must have been acquired by a radio station with national coverage or an organisation providing a sports service to radio stations which form a national (or near national) network. U.K.

19. The situation may arise where a second service is unable or unwilling to provide adequate secondary coverage or any secondary coverage at all. The ITC will then consider whether to give its consent to exclusive live coverage without secondary coverage and the same or similar criteria as set out in paragraphs 12 to 16 will apply. U.K.

Circumstances in which sanctions might not be imposed U.K.

20. Section 104 also requires the ITC to give guidance on the matters which it will take into account in deciding whether it is unreasonable to expect a television programme provider to comply with the restrictions on broadcasting live coverage of listed events and therefore whether sanctions should be imposed if the restrictions are not observed. Given the long lead times which are generally available for offering, selling and acquiring the rights, the ITC believes that there are very few circumstances in which it would be reasonable for a broadcaster to proceed with exclusive coverage without the ITC’s consent. A broadcaster who proceeds to broadcast a listed event live without the ITC’s consent and where this is not in compliance with Section 101(1) will need to convince the ITC that the period between the rights becoming available and the event taking place was too short for this consent to be obtained or that he believed he had complied but that belief was based on false information. In the latter situation, however, the ITC will need to be convinced that the broadcaster had taken all reasonable steps to satisfy himself that another broadcaster providing a service in the other category had acquired the rights. U.K.

Procedures for seeking consent U.K.

21. A request for the ITC’s consent for exclusive live coverage of a listed event must be made in writing to the ITC’s Secretary and be accompanied by full reasons and justification for the request and all relevant supporting information. Requests should be made well in advance (wherever possible, no less than three months) of the event taking place to give the ITC sufficient time to consider whether consent should be given. As a first step in considering the request the ITC will normally issue a public notice inviting any broadcasters providing a service in the other category from the one to which the applicant belongs, or rights holders and other interested parties to comment on the request. Depending on the response and on the ITC’s own investigations into the matter, the applicant may be asked to supply additional information in writing and/or to attend a meeting with ITC staff. U.K.

22. Broadcasters should note that under the Act ITC consent is needed for exclusive live coverage of Group B events even if the minimum requirements set out in paragraphs 17 and 18 are met. However, in these circumstances consent will be given automatically. U.K.

23. The ITC will respond as quickly as possible to any request. The ITC will publish its decisions and its reasons, but, in doing so, will have regard to the legitimate interest of the parties in the protection of confidentiality. U.K.

[…]

January 2000