Modifications etc. (not altering text)
C1Pt. 2: transfer of functions (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 1 para. 5 (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
C2Pt. 2 modified (29.12.2003) by Communications Act 2003 (c. 21), ss. 258, 411(2) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
(1)In this Part “digital additional service” means any service which—
[F1(a)is provided by a person with a view to its being broadcast in digital form (whether by him or some other person) so as to be available for reception by members of the public;
(aa)is so provided with a view to the broadcasting being by means of a radio multiplex service or by means of a general multiplex service; and]
(b)is not a digital sound programme service, a simulcast radio service, an ancillary service or a technical service.
(2)In this Part “ancillary service” means any service which is provided by the holder of a digital sound programme licence or by an independent national broadcaster and consists in the provision of any service (other than advertising) which—
(a)is ancillary to programmes included in a digital sound programme service or simulcast radio service provided by him and is directly related to their contents, or
(b)relates to the promotion or listing of such programmes.
(3)In this Part “technical service” means a service which—
(a)is provided for technical purposes connected with the encryption or decryption of one or more digital sound programme services or digital additional services, and
(b)is of a description specified in an order made by the Secretary of State.
[F2(3A)In this section “available for reception by members of the public” shall be construed in accordance with section 361 of the Communications Act 2003.]
(4)An order under subsection (3) shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Textual Amendments
F1S. 63(1)(a)(aa) substituted for s. 63(1)(a) (29.12.2003) by Communications Act 2003 (c. 21), ss. 260(2), 411(2) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F2S. 63(3A) inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 260(3), 411(2) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
(1)An application for a licence to provide digital additional services (in this Part referred to as a “digital additional services licence”) shall—
(a)be made in such manner as [F3OFCOM] may determine, and
(b)be accompanied by such fee (if any) as they may determine.
(2)At any time after receiving such an application and before determining it, [F3OFCOM] may require the applicant to furnish such additional information as they may consider necessary for the purpose of considering the application.
(3)Any information to be furnished to [F3OFCOM] under this section shall, if they so require, be in such form or verified in such manner as they may specify.
(4)Where an application for a digital additional services licence is made to [F3OFCOM] in accordance with the provisions of this section, they shall grant the licence unless precluded from doing so by section 42(2)(a) or 44(1).
Textual Amendments
F3Words in s. 64 substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 122 (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
(1)Subject to the provisions of this Part and to section 111 of the 1990 Act as applied by section 66(10), a digital additional services licence shall continue in force until it is surrendered by its holder.
(2)A digital additional services licence shall include such conditions as appear to [F4OFCOM] to be appropriate for requiring the holder of the licence—
(a)on entering into any agreement with [F5the provider of a radio multiplex service or of a general multiplex service] for the provision of digital additional services to be broadcast [F6by means of the multiplex service] , to notify [F4OFCOM] —
(i)of the identity of the [F7multiplex service] ,
(ii)of the period during which the services will be provided, and
(iii)where under the agreement the holder of the digital additional services licence will be entitled to the use of a specified amount of digital capacity, of that amount,
(b)when any such agreement is varied so far as it relates to any of the matters mentioned in paragraph (a)(i), (ii) or (iii) to notify [F4OFCOM] of the variation so far as relating to those matters, and
(c)where he is providing digital additional services to [F8the provider of a radio multiplex service or of a general multiplex service] in accordance with such an agreement as is mentioned in paragraph (a) but intends to cease doing so, to notify [F4OFCOM] of that fact.
Textual Amendments
F4Words in s. 65(2) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 123(2)(a) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F5Words in s. 65(2)(a) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 123(2)(b) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F6Words in s. 65(2)(a) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 123(2)(c) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F7Words in s. 65(2)(a)(i) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 123(2)(d) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F8Words in s. 65(2)(c) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 123(2)(b) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
(1)If [F9OFCOM] are satisfied that the holder of a digital additional services licence has failed to comply with any condition of the licence or with any direction given by [F9OFCOM] under or by virtue of any provision of this Part, they may (subject to the following provisions of this section) serve on him—
(a)a notice requiring him to pay, within a specified period, a specified financial penalty to [F9OFCOM] ,
(b)a notice providing that the licence is to expire on a specified date, which shall be at least one year from the date of service of the notice, or
(c)a notice suspending the licence for a specified period not exceeding six months.
(2)Subject to subsection (4), the amount of any financial penalty imposed in pursuance of subsection (1)(a) on the holder of a digital additional services licence shall not exceed [F10the maximum penalty given by subsection (2A).]
[F11(2A)The maximum penalty is whichever is the greater of—
(a)£250,000; and
(b)5 per cent. of the aggregate amount of the shares of multiplex revenue attributable to him in relation to relevant multiplex services in respect of relevant accounting periods.]
(4)Where the holder of a digital additional services licence has not provided any digital additional services for broadcasting by means of a [F12relevant multiplex service] , the amount of any penalty imposed on him under subsection (1)(a) shall not exceed [F13£250,000] .
(5)In [F14subsection (2A)] “relevant accounting period”, in relation to a [F15relevant multiplex service, means the last accounting period of the multiplex provider] .
(6)Where, in the case of any [F16relevant multiplex service] , the first accounting period of the [F17multiplex provider] throughout which the holder of the digital additional services licence provides a digital additional service for broadcasting by means of [F18that relevant multiplex service] (“the first period”) has [F19not ended when the penalty is imposed, then for the purposes of this section] the share of multiplex revenue attributable to the holder of the digital additional services licence in relation to [F18that relevant multiplex service] for the relevant accounting period shall be taken to be the amount which [F9OFCOM] estimate to be the share of multiplex revenue attributable to him for the first period.
[F20(6A)A determination or estimate for the purposes of subsection (2A) or (6) above of the share of multiplex revenue attributable to a person in relation to national radio multiplex services is to be in accordance with section 57(2) and (3).
(6B)A determination or estimate for the purposes of subsection (2A) or (6) above of the share of multiplex revenue attributable to a person in relation to general multiplex services is to be in accordance with section 15(2) and (3).]
[F21(6B)For the purposes of this section, a service is a relevant multiplex service if it is—
(a)a national radio multiplex service; or
(b)a general multiplex service.
(6C)In this section, “multiplex provider”—
(a)in relation to a national radio multiplex service, means the multiplex provider within the meaning of section 56; and
(b)in relation to a general multiplex service, means the multiplex provider within the meaning of section 14.]
(7)[F9OFCOM] shall not serve on any person any notice under subsection (1) unless they have given him a reasonable opportunity of making representations to them about the matters complained of.
(8)Where a licence is due to expire on a particular date by virtue of a notice served on any person under subsection (1)(b), [F9OFCOM] may, on the application of that person, revoke that notice by a further notice served on him at any time before that date, if they are satisfied that, since the date of the earlier notice, his conduct in relation to the operation of the licensed service has been such as to justify the revocation of that notice.
(9)Where [F9OFCOM] serve a notice on a BBC company under any provision of this section, they shall send a copy of the notice to the Secretary of State.
(10)Subject to subsections (11) and (12), section 109 (power to require scripts etc. or broadcasting of correction or [F22statement of findings] or not to repeat programme) and section 111 (power to revoke licences) of the 1990 Act shall apply in relation to a digital additional services licence as they apply in relation to a licence under Chapter II of Part III of the 1990 Act.
(11)In its application in relation to a digital additional services licence, section 109(1) of the 1990 Act shall have effect with the substitution for the reference to a direction under Part III of that Act of a reference to a direction under this Part.
(12)In its application in relation to a digital additional services licence, section 111 of the 1990 Act shall have effect—
(a)with the substitution for the reference in subsection (1)(a) to Part III of that Act of a reference to this Part, and
(b)with the omission of subsection (4) and of the reference to that subsection in subsection (6).
(13)It is hereby declared that any exercise by [F9OFCOM] of their powers under subsection (1) in respect of any failure to comply with any condition of a digital additional services licence shall not preclude any exercise by [F9OFCOM] of their powers under section 109 of the 1990 Act in respect of that failure.
Textual Amendments
F9Words in s. 66 substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 124(2) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F10Words in s. 66(2) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 13 para. 21(1)(7) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F11S. 66(2A) substituted for s. 66(3) (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 13 para. 21(2)(7) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F12Words in s. 66(4) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 124(3) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F13Word in s. 66(4) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 13 para. 21(3)(7) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F14Words in s. 66(5) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 13 para. 21(4)(7) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F15Words in s. 66(5) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 124(4) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F16Words in s. 66(6) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 124(5)(a) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F17Words in s. 66(6) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 124(5)(b) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F18Words in s. 66(6) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 124(5)(c) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F19Words in s. 66(6) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 13 para. 21(5)(7) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F20S. 66(6A)(6B) inserted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 13 para. 21(6)(7) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F21S. 66(6B)(6C) inserted (29.12.2003) by virtue of Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 124(6) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
F22Words in s. 66(10) substituted (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 15 para. 124(7) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)
Modifications etc. (not altering text)
C3S. 66(1) modified (20.7.2004) by The Contracting Out (Functions relating to Broadcast Advertising) and Specification of Relevant Functions Order 2004 (S.I. 2004/1975), art. 1, Sch. para. 4(f) (with art. 5)