Communications Act 2003

Chapter 1 The BBC, C4C the Welsh Authority and the Gaelic media service

The BBC

198 Functions of OFCOM in relation to the BBC

(1) It shall be a function of OFCOM, to the extent that provision for them to do so is contained in—

(a) the BBC Charter and Agreement, and

(b) the provisions of this Act and of Part 5 of the 1996 Act,

to regulate the provision of the BBC’s services and the carrying on by the BBC of other activities for purposes connected with the provision of those services.

(2) For the purposes of the carrying out of that function OFCOM—

(a) are to have such powers and duties as may be conferred on them by or under the BBC Charter and Agreement; and

(b) are entitled, to the extent that they are authorised to do so by the Secretary of State or under the terms of that Charter and Agreement, to act on his behalf in relation to that Charter and Agreement.

(3) The BBC must pay OFCOM such penalties in respect of contraventions by the BBC of provision made by or under—

(a) this Part, or

(b) the BBC Charter and Agreement,

as are imposed by OFCOM in exercise of powers conferred on them by that Charter and Agreement.

(4) The BBC are also to be liable to pay OFCOM such sums in respect of the carrying out by OFCOM of their functions in relation to the BBC as may be—

(a) agreed from time to time between the BBC and OFCOM; or

(b) (in default of agreement) fixed by the Secretary of State.

(5) The maximum penalty that may be imposed on the BBC on any occasion by OFCOM in exercise of a power conferred by virtue of the BBC Charter and Agreement is £250,000.

(6) The Secretary of State may by order substitute a different sum for the sum for the time being specified in subsection (5).

(7) No order is to be made containing provision authorised by subsection (6) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(8) It shall be the duty of OFCOM to have regard to their functions under this section when carrying out their functions under the 1990 Act, the 1996 Act and this Part in relation to services provided by persons other than the BBC.

(9) In this section “the BBC’s services” means such of the services provided by the BBC (excluding the services comprised in the World Service) as are of a description of service which, if provided by a BBC company, would fall to be regulated by OFCOM by virtue of section 211 or 245.

C4C

199 Functions of C4C

(1) The activities that C4C are able to carry on include any activities which appear to them—

(a) to be activities that it is appropriate for them to carry on in association with the carrying out of their primary functions; and

(b) to be connected, otherwise than merely in financial terms, with activities undertaken by them for the carrying out of those functions.

(2) C4C’s primary functions are—

(a) securing the continued provision of Channel 4; and

(b) the fulfilment of the public service remit for that Channel under section 265.

(3) Section 24(5)(b) and (6) of the 1990 Act (power of C4C to establish, acquire an interest in or assist a qualifying company) shall cease to have effect.

(4) For sub-paragraphs (3) and (4) of paragraph 1 of Schedule 3 to the 1990 Act (power of C4C to do things incidental or conducive to the carrying out of their functions) there shall be substituted—

“(3) The Corporation may do anything which appears to them to be incidental or conducive to the carrying out of their functions.

(4) The powers of the Corporation under sub-paragraph (3) include power, to the extent that it appears to them incidental or conducive to the carrying out of their functions to do so—

(a) to borrow money;

(b) to carry on activities (other than those comprised in their duty to carry out their primary functions) through Channel 4 companies; and

(c) to participate with others in the carrying on of any such activities.”

(5) Schedule 9 (which makes provision for the approval by OFCOM, and for the enforcement, of arrangements made by C4C about the carrying on of their activities) shall have effect.

200 Removal of members of C4C

(1) In paragraph 3 of Schedule 3 to the 1990 Act (term of office of members of C4C), after sub-paragraph (2) there shall be inserted—

“(2A) OFCOM may at any time, by notice to a member of the Corporation, terminate the appointment of that member.

(2B) Before terminating a person’s appointment under sub-paragraph (2A), OFCOM must consult the Secretary of State.”

(2) This section applies only to a member whose appointment was made, or last renewed, after the coming into force of this section.

201 Deficits and surpluses of C4C

(1) Sections 26 and 27 of the 1990 Act (revenue deficits of C4C to be funded by providers of Channel 3 services and application of excess revenues of C4C) shall cease to have effect.

(2) This section has effect in relation to a deficit or excess for a year ending after the commencement of this section.

202 Borrowing limit for C4C

(1) The Secretary of State may by order provide for a limit on the borrowing that C4C is allowed to undertake.

(2) The order may fix the limit either—

(a) by specifying the sum which the outstanding borrowing of C4C must not at any time exceed; or

(b) by providing a method of determining the sum which that borrowing must not exceed.

(3) C4C are not to borrow money if the effect of the borrowing would be to cause the amount of their outstanding borrowing to be, or to remain, in excess of the limit (if any) that is for the time being in force.

(4) For the purposes of this section the amount of C4C’s outstanding borrowing at any time is the aggregate amount outstanding at that time in respect of the principal of sums borrowed by them, but after allowing sums borrowed to repay existing loans to be applied for that purpose.

(5) Before making an order under this section, the Secretary of State must consult C4C.

(6) The consent of the Treasury is required for the making of an order under this section.

The Welsh Authority

203 Function of OFCOM in relation to the Welsh Authority

It shall be a function of OFCOM, to the extent that provision for them to do so is contained in this Act and Part 5 of the 1996 Act, to regulate the services provided by the Welsh Authority.

204 Welsh Authority’s function of providing S4C and S4C Digital

(1) The Welsh Authority shall continue in existence with the substitution of the following function for their functions under section 57 of the 1990 Act.

(2) The Welsh Authority shall have the function of providing television programme services of high quality with a view to their being available for reception wholly or mainly by members of the public in Wales.

(3) The carrying out of that function—

(a) must include the continuing provision of the television broadcasting service known as Sianel Pedwar Cymru (“S4C”); and

(b) may include the continuing provision of the service provided in digital form and known as S4C Digital.

(4) The power of the Welsh Authority to provide S4C Digital includes a power to secure that arrangements are made and remain in force for it to be broadcast in digital form.

(5) It shall be the duty of the Welsh Authority to secure that S4C and S4C Digital each represents a public service for the dissemination of information, education and entertainment.

(6) The Welsh Authority may use part of the signals carrying S4C to provide—

(a) subtitling in relation to programmes included in the service; and

(b) other services which are ancillary to programmes included in S4C and which are directly related to their contents.

(7) In providing S4C Digital the Welsh Authority may also provide—

(a) assistance for disabled people in relation to programmes included in the service; and

(b) any other service (other than one mentioned in paragraph (a)) which is an ancillary service in relation to S4C Digital.

(8) The Secretary of State may by order modify this Act and such other enactments as he thinks fit for the purpose of—

(a) replacing the requirement of the Welsh Authority to provide S4C with a requirement to provide a service in digital form;

(b) requiring the Welsh Authority to secure that arrangements are made for that service and S4C Digital to be merged and provided as one service (also to be known as “S4C Digital”); and

(c) applying enactments relating to the provision of S4C or S4C Digital to the provision of the merged service.

(9) An order under subsection (8) may require the Welsh Authority to ensure that, from the coming into force of a requirement to provide a merged service in digital form until a time determined in the manner described in the order, the whole or a part of the merged service is also to be provided for broadcasting in analogue form.

(10) In this section “programme” does not include an advertisement.

205 Powers to provide other services

(1) The Welsh Authority are not, in the carrying out of their function under section 204, to provide any television programme service (apart from S4C and S4C Digital) unless—

(a) the service appears to them to satisfy the requirements of subsection (3); and

(b) the provision by them of the service has been approved by an order made by the Secretary of State.

(2) The functions of the Welsh Authority include the provision of services that are neither television programme services nor sound services but—

(a) are provided with a view to being made available for reception wholly or mainly by members of the public in Wales or otherwise to be received or used by persons in Wales;

(b) are services appearing to them to satisfy the requirements of subsection (3); and

(c) are services the provision of which by the Authority has been approved by an order made by the Secretary of State.

(3) A service provided under this section must be a public service of high quality for the dissemination of information, education or entertainment (or a combination of them) wholly or mainly to members of the public in Wales.

(4) The Welsh Authority are not to provide a television programme service under this section unless it is one the provision of which by them broadens the range of television programme services available for reception by members of the public in Wales.

(5) The Welsh Authority must ensure, in the case of every television programme service provided with the approval of the Secretary of State under this section, that a substantial proportion of the programmes included in the service consists of programmes in Welsh.

(6) An order under this section approving the provision of a service must set out—

(a) the nature and other characteristics of the service that is approved; and

(b) in the case of a service that is a television programme service, a public service remit for that service.

(7) In providing a service approved under this section the Welsh Authority may also provide—

(a) assistance for disabled people in relation to programmes included in the service;

(b) other services which are ancillary to programmes included in the service and which are directly related to their contents; and

(c) any other service (other than one mentioned in paragraph (a) or (b)) which is an ancillary service in relation to so much of the service as is provided in digital form.

(8) A television programme service provided under this section in digital form is a qualifying service for the purposes of the 1996 Act.

(9) In this section “sound service” means a service which would fall to be regulated under section 245 if provided by an S4C company.

206 Other activities of Welsh Authority

(1) The activities that the Welsh Authority are able to carry on include activities which appear to them—

(a) to be activities that it is appropriate for them to carry on in association with the carrying out of their function of providing S4C, S4C Digital or a service the provision of which is approved under section 205; and

(b) to be connected, otherwise than merely in financial terms, with activities undertaken by them for the carrying out of that function.

(2) The approval of the Secretary of State is required for the carrying on by the Welsh Authority of activities authorised only by subsection (1).

(3) The approval of the Secretary of State—

(a) must be contained in an order made by him; and

(b) may be a general approval in relation to a description of activities or a specific approval in relation to particular activities.

(4) The activities capable of being authorised under subsection (1)—

(a) do not include the provision of a licensable service; but

(b) do include activities for securing the provision of such a service by an S4C company and other activities connected with the provision of such a service by such a company.

(5) The activities referred to in subsection (4)(b) include—

(a) the formation of a company to provide a programme service;

(b) the taking of steps by means of which a company that is providing such a service becomes an S4C company.

(6) For sub-paragraphs (2) and (3) of paragraph 1 of Schedule 6 to the 1990 Act (power of Welsh Authority to do things incidental or conducive to the carrying out of their functions) there shall be substituted—

“(2) The Authority may do anything which appears to them to be incidental or conducive to the carrying out of their functions.

(3) The powers of the Authority under sub-paragraph (2) include power, to the extent that it appears to them incidental or conducive to the carrying out of their functions to do so—

(a) to carry on activities (other than those comprised in their duty to carry out their functions under section 204 of the Communications Act 2003) through S4C companies; and

(b) to participate with others in the carrying on of any such activities.”

(7) In this section “licensable service” means a service that would fall to be regulated under section 211 or 245 if provided by an S4C company.

(8) Section 57(1A)(b) and (1B) of the 1990 Act (power of Welsh Authority to establish, acquire an interest in or assist a qualifying company) shall cease to have effect.

207 Welsh Authority finances

(1) The Welsh Authority must not, whether directly or indirectly, impose charges on persons—

(a) in respect of their reception or use in Wales of any of the Authority’s public services;

(b) in respect of their reception in Wales of any service consisting in the provision of assistance for disabled people in relation to programmes included in any one or more of those services; or

(c) in respect of their reception in Wales of any service (other than one mentioned in paragraph (b)) which is an ancillary service in relation to any of the Authority’s public services provided in digital form.

(2) It shall be unlawful to impose a charge in contravention of subsection (1).

(3) The power of the Welsh Authority to do anything that appears to them to be conducive or incidental to the carrying out of their functions includes power, subject to subsection (4), to borrow money.

(4) The Welsh Authority are not to borrow money except with the approval of the Secretary of State.

(5) The consent of the Treasury is to be required for the giving of an approval for the purposes of subsection (4).

(6) The Welsh Authority are to be liable to pay OFCOM such sums in respect of the carrying out by OFCOM of their functions in relation to the Authority as may be—

(a) agreed from time to time between the Authority and OFCOM; or

(b) (in default of agreement) fixed by the Secretary of State.

(7) In section 61(4) of the 1990 Act (power of Secretary of State to increase amount of grant to the Welsh Authority), for “transmitting S4C and the service referred to in section 57(1A)(a), by order” there shall be substituted—

“(a) providing services that are public services of the Authority (within the meaning of section 207 of the Communications Act 2003), and

(b) arranging for the broadcasting or distribution of those services,

by order”.

(8) In section 61A of the 1990 Act (the public service fund)—

(a) in subsection (2) (application of fund), for “their functions under section 57(1) or (1A)(a)” there shall be substituted “their functions in relation to the provision of the services that are public services of the Authority (within the meaning of section 207 of the Communications Act 2003).”; and

(b) in subsection (4) (programmes to be broadcast first on S4C or S4C Digital), for the words from “on S4C” onwards there shall be substituted “on a television programme service that is one of their public services (within the meaning of section 207 of the Communications Act 2003)”.

(9) In this section references to the Welsh Authority’s public services are references to the following—

(a) S4C;

(b) S4C Digital; and

(c) the services the provision of which by the Authority is authorised by or under section 205.

The Gaelic Media Service

208 The Gaelic Media Service

(1) The body established for the purposes of section 183 of the 1990 Act (financing of programmes in Gaelic out of the Gaelic Television Fund) is hereby renamed Seirbheis nam Meadhanan Gàidhlig (the Gaelic Media Service).

(2) References in any instrument or other document to Comataidh Craolaidh Gaidhlig or to the Gaelic Broadcasting Committee are to be construed accordingly.

(3) For subsection (4) of that section there shall be substituted—

“(3B) The functions of the Service shall be to secure that a wide and diverse range of high quality programmes in Gaelic are broadcast or otherwise transmitted so as to be available to persons in Scotland.

(4) The Service may—

(a) make grants out of the Fund, or

(b) otherwise apply it,

for any of the purposes of carrying out their functions or for any purpose connected with the carrying out of those functions.

(4A) In carrying out their functions, the Service may finance, or engage in, any of the following—

(a) the making of programmes in Gaelic with a view to those programmes being broadcast or otherwise transmitted so as to be available to persons in Scotland;

(b) the provision of training for persons employed, or to be employed, in connection with the making of programmes in Gaelic to be so broadcast or otherwise transmitted;

(c) research into the types of programmes in Gaelic that members of the Gaelic-speaking community would like to be broadcast or otherwise transmitted.

(4B) But the Service are not to be entitled, for the purpose of carrying out their functions, to provide—

(a) a Channel 3 service;

(b) Channel 4;

(c) Channel 5;

(d) a national sound broadcasting service;

(e) a national digital sound programme service; or

(f) a television multiplex service or a radio multiplex service.”

(4) For subsection (9) of that section there shall be substituted—

“(9) In this section, section 183A and Schedule 19—

• “Channel 3 service”, “Channel 4” and “Channel 5” each has the same meaning as in Part 1;

• “national digital sound programme service” has the same meaning as in Part 2 of the Broadcasting Act 1996;

• “national sound broadcasting service” means a sound broadcasting service within the meaning of Part 3 which, under subsection (4)(a) of section 245 of the Communications Act 2003, is a national service for the purposes of that section;

• “Gaelic” means the Gaelic language as spoken in Scotland;

• “programme” includes any item included in a programme service;

• “radio multiplex service” has the same meaning as in Part 2 of the Broadcasting Act 1996;

• “the Service” means the body established under subsection (3) and known as Seirbheis nam Meadhanan Gàidhlig (the Gaelic Media Service);

• “television multiplex service” has the meaning given by section 241(1) of the Communications Act 2003 to a multiplex service within the meaning of Part 1 of the Broadcasting Act 1996;

• and a reference to being available to persons in Scotland includes a reference to being available both to persons in Scotland and to others.”

209 Membership of the Service

After section 183 of the 1990 Act there shall be inserted—

“183A Membership of the Gaelic Media Service

(1) The Service shall consist of not more than twelve members.

(2) The members of the Service are to be appointed by OFCOM

(3) OFCOM must appoint one of the members to be the chairman of the Service.

(4) The approval of the Secretary of State is required for the appointment of a person as a member of the Service, and for the appointment of a member as their chairman.

(5) The members of the Service must include—

(a) a member nominated by the BBC;

(b) a member nominated by Highlands and Islands Enterprise; and

(c) a member nominated by Bòrd Gàidhlig na h-Alba (the Gaelic Development Agency).

(6) When appointing members of the Service, OFCOM must have regard to—

(a) the desirability of having members of the Service who are proficient in written and spoken Gaelic; and

(b) any guidance issued by the Secretary of State for the purposes of this section.

(7) OFCOM must secure, so far as practicable, that the membership of the Service is such that the interests of each of the following are adequately represented—

(a) the holders of licences to provide regional Channel 3 services for areas wholly in Scotland;

(b) the holders of licences to provide regional Channel 3 services in respect of which determinations under section 184(4)(b) are for the time being in force;

(c) the independent television and radio production industries in Scotland;

(d) other persons and bodies concerned with the promotion and use of the Gaelic language, including those concerned with education in Gaelic and in Gaelic culture.

(8) Schedule 19 to this Act shall have effect with respect to the Service.

(9) In this section—

• “Bòrd Gàidhlig na h-Alba” means the body of that name formed under section 5 of the National Heritage (Scotland) Act 1985;

• “regional Channel 3 service” has the same meaning as in Part 1.

(10) The Secretary of State may by order amend the reference in subsection (5) to Bòrd Gàidhlig na h-Alba (the Gaelic Development Agency)—

(a) by substituting a reference to another body formed under section 5 of the National Heritage (Scotland) Act 1985 with functions relating to the promotion of Gaelic; or

(b) for the purpose of giving effect to a change to the name of the body referred to in that subsection.

(11) An order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.”

210 Supplementary provisions about the Service

(1) Schedule 19 to the 1990 Act (supplementary provisions about the Gaelic Broadcasting Committee) shall be amended as follows.

(2) In paragraph 2 (tenure of office and remuneration)—

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

(b) after sub-paragraph (1) there shall be inserted—

“(1A) A person is not to be appointed as a member of the Service for a term of more than four years (but a person so appointed shall be eligible for re-appointment at the end of his term of office).”

(3) In paragraph 7 (employees of the Committee), after sub-paragraph (3) there shall be inserted—

“(4) A person who is an employee of the Service is not to be eligible to be appointed as a member of the Service.”

(4) After paragraph 8 (financial provision) there shall be inserted—

“8A(1) The Service must pay all their receipts to OFCOM.

(2) OFCOM must hold amounts received by them under this paragraph to the credit of the Gaelic Broadcasting Fund (and, accordingly, those amounts are not to be regarded as forming part of OFCOM’s revenues).”

(5) In paragraph 12 (annual reports), after sub-paragraph (1) there shall be inserted—

“(1A) The report must include a statement of how the Service are proposing to carry out their functions during the next financial year.”