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Communications Act 2003

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This is the original version (as it was originally enacted).

Part 3Local sound programme services

Restriction on holding of local sound broadcasting licences

11(1)The Secretary of State may by order impose—

(a)requirements prohibiting the holding at the same time by the same person, in the circumstances described in the order, of more than the number of local sound broadcasting licences that is determined in the manner set out in the order;

(b)requirements prohibiting a person from holding even one local sound broadcasting licence in the circumstances described in the order.

(2)The circumstances by reference to which a person may be prohibited under sub-paragraph (1) from holding a local sound broadcasting licence, and the factors that may be used for determining the number of such licences that he may hold, include, in particular—

(a)whether and to what extent the coverage areas of different services provided by that person under different local sound broadcasting licences would overlap;

(b)the sizes of the potential audiences for those services and the times when those services would be made available;

(c)whether and to what extent members of the potential audiences for those services would also be members of the potential audiences for services provided under local sound broadcasting licences held by other persons;

(d)in a case in which members of potential audiences for services so provided by that person would also be members of the potential audiences for services so provided by other persons—

(i)the number of those other persons;

(ii)the coverage areas of their services;

(iii)the sizes of the potential audiences for their services; and

(iv)the times when their services are or will be made available;

(e)whether that person runs one or more national newspapers, and their national market share;

(f)whether and to what extent the whole or a part of the coverage area for a service for which that person would hold a local sound broadcasting licence is or includes an area in which one or more local newspapers run by him is circulating, and the newspapers' local market share;

(g)whether and to what extent the whole or a part the coverage area for which that person would hold a local sound broadcasting licence is or is included in the coverage area of a regional Channel 3 service for which he also holds a licence.

(3)For the purposes of this paragraph the coverage area for a service provided under a local sound broadcasting licence or a Channel 3 licence is the area in the United Kingdom within which that service is capable of being received at a level satisfying such technical standards as may have been laid down by OFCOM for the purposes of the provisions of an order under this paragraph.

Restriction applying to local digital sound programme services

12(1)The Secretary of State may by order impose requirements, on persons holding local digital sound programme licences, prohibiting the provision by the same person, in the circumstances described in the order, of more than the number of local digital sound programme services that is determined in the manner set out in the order.

(2)The circumstances by reference to which a person may be prohibited under sub-paragraph (1) from providing a local digital sound programme service, and the factors that may be used for determining the number of such services that he may provide, include, in particular—

(a)whether and to what extent the coverage areas of different local digital sound programme services provided by that person would overlap;

(b)the capacity used by those services on the relevant multiplexes;

(c)the sizes of the potential audiences for those services and the times when those services would be made available;

(d)whether and to what extent members of the potential audiences for those services would also be members of the potential audiences for local digital sound programme services provided by other persons;

(e)in a case in which members of the potential audiences for the services provided by that person would also be members of the potential audiences for local digital sound programme services provided by other persons—

(i)the number of those other persons;

(ii)the coverage areas of their services;

(iii)the capacity used by their services on the relevant multiplexes;

(iv)the sizes of the potential audiences for their services; and

(v)the times when their services are or will be made available.

(3)For the purposes of this paragraph the coverage area for a service provided under a local digital sound programme licence is the area in the United Kingdom within which the relevant multiplex is capable of being received at a level satisfying such technical standards as may have been laid down by OFCOM for the purposes of the provisions of an order under this paragraph.

(4)In this paragraph “the relevant multiplex”, in relation to a service provided under a local digital sound programme licence, means the local radio multiplex service in which the service provided under that licence is or is to be included.

(5)For the purposes of this paragraph a person who holds a licence to provide local digital sound programme services provides such a service if, and only if—

(a)the service is one provided by him and is included in a local radio multiplex service for which he holds a local radio multiplex licence; or

(b)under a contract between that person and a person who holds a licence to provide a local radio multiplex service, the person holding the licence to provide the radio multiplex service is required to include that local digital sound programme service in that multiplex service.

Powers supplemental to powers under paragraphs 11 and 12

13(1)An order under paragraph 11 or 12 may make provision for treating—

(a)persons who are connected with a person who holds a licence,

(b)persons who are associates of a person who holds a licence or of a person who is connected with a person who holds a licence, and

(c)persons who (whether alone or together with such persons as may be described in the order) participate in a body which holds a licence or is treated as doing so by virtue of paragraph (a) or (b),

as if each of them were also a holder of the licence for the purposes of a requirement imposed under that paragraph.

(2)An order under paragraph 12 may make provision for treating—

(a)persons who are connected with a person who provides a local digital sound programme service,

(b)persons who are associates of a person who provides such a service or of a person who is connected with a person who provides such a service, and

(c)persons who (whether alone or together with such persons as may be described in the order) participate in a body who provides such a service or is treated as doing so by virtue of paragraph (a) or (b),

as if each of them were also a person providing the service for the purposes of a requirement imposed under that paragraph.

(3)An order under paragraph 11 or 12 may also make provision for treating—

(a)persons who are connected with each other,

(b)persons who are associates of each other, and

(c)persons who (whether alone or together with such persons as may be described in the order) participate in a body,

as if they and such other persons who are connected with, associates of or participators in any of them as may be described in the order were the same person for the purposes of a requirement imposed under that paragraph.

(4)An order under paragraph 11 may make provision—

(a)as to the circumstances in which a newspaper is to be treated as a national newspaper or a local newspaper for the purposes of a requirement imposed under that paragraph;

(b)as to the person or persons who are to be treated for any such purposes as running a newspaper;

(c)as to the determination for any such purposes of the area within which a local newspaper is circulating; and

(d)as to what is to constitute the national market share or local market share of any newspaper or of a number of newspapers taken together;

and provision made by virtue of this paragraph may apply, with or without modifications, any of the provisions of paragraph 3 or 4 of this Schedule.

(5)Power to make provision with respect to any matter by any order under paragraph 11 or 12 includes power—

(a)to make provision with respect to that matter by reference to the making or giving by OFCOM, in accordance with the order, of any determination, approval or consent; and

(b)to confer such other discretions on OFCOM as the Secretary of State thinks fit.

(6)Sub-paragraph (5) of paragraph 12 applies for the purposes of this paragraph as it applies for the purposes of that paragraph.

Transitional provision for orders under paragraphs 11 and 12

14(1)This paragraph applies where—

(a)immediately after the coming into force of an order under paragraph 11 or 12, a person (“the person in contravention”) is in contravention, in any respect, of a requirement imposed under that paragraph; and

(b)immediately before the coming into force of the order, that person—

(i)held one or more relevant licences; but

(ii)was not, in that respect, in contravention of a requirement imposed under that paragraph.

(2)This paragraph does not apply in the case of the first order to be made under paragraph 11 or 12 if the person in contravention was, immediately before the coming into force of the order, in contravention, in relation to one or more of the relevant licences, of a requirement imposed under Part 3 or 4 of Schedule 2 to the 1990 Act.

(3)In sub-paragraphs (1) and (2) the reference to a relevant licence is—

(a)in relation to the coming into force of an order under paragraph 11, a local sound broadcasting licence; and

(b)in relation to the coming into force of an order under paragraph 12, a local digital sound programme licence.

(4)The contravention mentioned in sub-paragraph (1)(a), to the extent that it arises by reason of the coming into force of the order, is to be disregarded (in the case of the person in contravention) in relation to any time which falls—

(a)after the coming into force of the order; and

(b)before there is a relevant change of circumstances.

(5)Where the contravention is one arising under paragraph 11 in the case of a person who held one or more local sound broadcasting licences immediately before the coming into force of the order, there is a relevant change of circumstances if—

(a)another person becomes the holder of any of those licences, otherwise than in consequence of a transaction under which the person in contravention ceases to be a holder of the licence; or

(b)the person in contravention becomes the holder of another local sound broadcasting licence.

(6)A change of circumstances is not a relevant change of circumstances by virtue of sub-paragraph (5)(b) unless the licence of which the person in contravention becomes the holder is one the holding of which, with the holding of licences already held by him, would (apart from sub-paragraph (4)) constitute a contravention of a requirement imposed under paragraph 11.

(7)Where the contravention is one arising under paragraph 12 in the case of a person who, under a local digital sound programme licence, was providing one or more local digital sound programme services immediately before the coming into force of the order, there is a relevant change of circumstances if—

(a)another person becomes the holder of that licence, otherwise than in consequence of a transaction under which the person in contravention ceases to be a holder of the licence; or

(b)the person in contravention becomes the provider of another local digital sound programme service provided under that licence.

(8)A change of circumstances is not a relevant change of circumstances by virtue of sub-paragraph (7)(b) unless the service of which the person in contravention becomes the provider is one the provision of which, with the services already provided by him, would (apart from sub-paragraph (4)) constitute a contravention of a requirement imposed under paragraph 12.

(9)For the purposes of this paragraph, in its application in relation to a contravention of a requirement imposed under paragraph 11 or 12—

(a)references to holding a licence or providing a local digital sound programme service are to be construed in accordance with the provision having effect for the purposes of that requirement; and

(b)the persons who are taken to be holding a local digital sound programme licence immediately before the coming into force of the order include every person who at that time would, in accordance with that provision, be treated as providing local digital sound programme services that were being provided at that time under that licence.

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