Communications Act 2003

Prospective

SCHEDULES

Section 2

SCHEDULE 1 E+W+S+N.I. Functions transferred to OFCOM

Wireless telegraphy functions E+W+S+N.I.

1 (1) Subject to sub-paragraphs (2) and (3), the functions of the Secretary of State under the following enactments are transferred to OFCOM— E+W+S+N.I.

(a) the Wireless Telegraphy Act 1949 (c. 54);

(b) section 7 of the Wireless Telegraphy Act 1967 (c. 72) (restriction on dealings in, and custody of, certain apparatus);

(c) Part 6 of the Telecommunications Act 1984 (c. 12) (provisions relating to wireless telegraphy);

(d) the Wireless Telegraphy Act 1998 (c. 6).

(2) The following functions remain functions of the Secretary of State—

(a) his functions under section 5 of the Wireless Telegraphy Act 1949 (misleading messages and interception and disclosure of wireless telegraphy messages);

(b) his functions under section 6 of that Act (regulations about apparatus on board ships etc.);

(c) his functions under section 7 of that Act (powers as to wireless personnel).

(3) The functions of the Secretary of State under section 84 of the Telecommunications Act 1984 (approval of wireless telegraphy apparatus)—

(a) if an order made by the Secretary of State under subsection (8A) of that section is in force, shall be exercisable by him and by OFCOM in accordance with that order; and

(b) if there is no such order, shall be exercisable by OFCOM.

2 (1) The functions of the Secretary of State under section 7A of the Marine, &c., Broadcasting (Offences) Act 1967 (c. 41) (powers of enforcement of marine offences under that Act) shall (with the following exception) be exercisable concurrently by the Secretary of State and OFCOM. E+W+S+N.I.

(2) The exception is the functions of the Secretary of State under that section so far as they relate to powers exercisable by virtue of subsection (7) of that section.

Functions in relation to the licensing etc. of television services E+W+S+N.I.

3 The following functions of the Independent Television Commission are transferred to OFCOM— E+W+S+N.I.

(a) the function of granting or awarding licences under Part 1 of the 1990 Act (independent television services) and Part 1 of the 1996 Act (digital television broadcasting);

(b) the Commission’s functions under those Parts in relation to, and to applications for, licences under either of those Parts;

(c) the function of securing the provision of a nationwide system of television broadcasting services known as Channel 3;

(d) the function of securing the provision of the television broadcasting service known as Channel 5.

Functions in relation to C4C E+W+S+N.I.

4 The functions conferred on the Independent Television Commission by or under section 23 of the 1990 Act and under Schedule 3 to that Act (appointment of members of C4C and related administrative functions) are transferred to OFCOM. E+W+S+N.I.

Functions in relation to the licensing of radio services E+W+S+N.I.

5 The following functions of the Radio Authority are transferred to OFCOM— E+W+S+N.I.

(a) the function of granting or awarding licences under Part 3 of the 1990 Act (independent radio services) and Part 2 of the 1996 Act (digital sound broadcasting); and

(b) the Authority’s functions under those Parts in relation to licences granted or awarded under those Parts.

Functions in relation to the proscription of foreign satellite services E+W+S+N.I.

6 The functions of the Independent Television Commission and of the Radio Authority under section 177 of the 1990 Act (proscription of foreign satellite services) are transferred to OFCOM. E+W+S+N.I.

Functions in relation to Gaelic broadcasting E+W+S+N.I.

7 The functions of the Independent Television Commission under sections 183 and 184 of the 1990 Act and the functions of that Commission and of the Radio Authority under Schedule 19 to that Act (Gaelic broadcasting) are transferred to OFCOM. E+W+S+N.I.

Functions in relation to the national television archive E+W+S+N.I.

8 The functions of the Independent Television Commission under section 185 of the 1990 Act (maintenance of the national television archive) are transferred to OFCOM. E+W+S+N.I.

Warrants to enter and search premises to enforce broadcasting licences provisions E+W+S+N.I.

9 The functions of the Independent Television Commission and of the Radio Authority under section 196(1) of the 1990 Act (entry and search for the purposes of enforcing licensing provisions of the 1990 and 1996 Acts) are transferred to OFCOM. E+W+S+N.I.

Variation of existing Channel 3 and Channel 5 licences E+W+S+N.I.

10 Any power to vary licences which is conferred on the Independent Television Commission by an order under section 28 of the 1996 Act is transferred to OFCOM. E+W+S+N.I.

Reports for the purposes of the review of digital television broadcasting E+W+S+N.I.

11 The functions of the Independent Television Commission and of the Radio Authority under sections 33 and 67 of the 1996 Act (reports to the Secretary of State for the purposes of his review of digital broadcasting) are transferred to OFCOM. E+W+S+N.I.

Functions in relation to reservation of digital capacity to the BBC E+W+S+N.I.

12 The function of the Secretary of State under section 49(4) of the 1996 Act (reserving digital capacity on a local radio multiplex service for the BBC) is transferred to OFCOM. E+W+S+N.I.

Functions in relation to listed events E+W+S+N.I.

13 The functions of the Independent Television Commission under Part 4 of the 1996 Act (functions in connection with listed events) are transferred to OFCOM. E+W+S+N.I.

Functions relating to fairness and privacy in broadcasting E+W+S+N.I.

14 The following functions of the Broadcasting Standards Commission under Part 5 of the 1996 Act are transferred to OFCOM— E+W+S+N.I.

(a) the Commission’s function of drawing up and from time to time revising a code of practice under section 107 of that Act (codes of practice relation to fairness and privacy); and

(b) their functions in relation to fairness complaints under that Part.

Section 30

SCHEDULE 2 E+W+S+N.I. Transfer schemes

Contents of transfer scheme E+W+S+N.I.

1 (1) A transfer scheme— E+W+S+N.I.

(a) shall set out the property, rights and liabilities to be transferred by the scheme; and

(b) may make incidental, supplemental, consequential and transitional provision in connection with the transfer of that property and of those rights and liabilities.

(2) The provisions of the scheme setting out the property, rights and liabilities to be transferred may do so in either or both of the following ways—

(a) by specifying them or describing them in particular; or

(b) by identifying them generally by reference to, or to a specific part of, an undertaking from which they are to be transferred.

(3) The property, rights and liabilities that are to be capable of being transferred by a transfer scheme include—

(a) property, rights and liabilities that would not otherwise be capable of being transferred or assigned by the person from whom they are transferred;

(b) property acquired and rights and liabilities arising in the period after the making of the scheme and before it comes into force;

(c) rights and liabilities arising subsequently in respect of matters occurring in that period;

(d) property situated anywhere in the United Kingdom or elsewhere and rights and liabilities under the law of any part of the United Kingdom or of any place outside the United Kingdom; and

(e) rights and liabilities under an enactment.

(4) The provision that may be made under sub-paragraph (1)(b) includes provision for the creation in favour of a pre-commencement regulator, the Secretary of State or OFCOM of rights or liabilities over or in respect of property transferred to OFCOM or property retained by a pre-commencement regulator or the Secretary of State.

(5) The transfers to which effect may be given by a transfer scheme, and the rights that may be created by means of such a scheme, include transfers that are to take effect, and rights that are to arise, in accordance with the scheme as if there were—

(a) no such requirement to obtain a person’s consent or concurrence,

(b) no such liability in respect of any contravention of any other requirement, and

(c) no such interference with any interest or right,

as there would be, in the case of a transaction apart from this Act (whether under any enactment or agreement or otherwise), by reason of any provision having effect in relation to the terms on which a pre-commencement regulator or the Secretary of State is entitled or subject to any property, right or liability.

Effect of transfer scheme E+W+S+N.I.

2 (1) Property transferred by a transfer scheme shall, on the coming into force of the scheme, vest in OFCOM without further assurance. E+W+S+N.I.

(2) Where any transfer scheme comes into force, any agreement made, transaction effected or other thing done by or in relation to the person from whom any transfers for which the scheme provides are made shall have effect, so far as necessary for the purposes of those transfers, as if—

(a) it had been made, effected or done by or in relation to OFCOM; and

(b) OFCOM were the same person in law as the person from whom the transfer is made.

(3) Accordingly, references in any agreement, document, process or instrument of any description to the person from whom anything is transferred by means of a transfer scheme shall have effect, so far as necessary for the purpose of giving effect to the transfer from the coming into force of the scheme, as references to OFCOM.

(4) Where any agreement, document, process or instrument of any description has effect, in relation to anything transferred by means of a transfer scheme, as referring (whether expressly or by implication)—

(a) to a member or to an officer of a pre-commencement regulator, or

(b) to an officer of the Secretary of State,

that agreement, document, process or instrument shall have effect so far as necessary for the purposes of the transfers effected by the scheme and in consequence of them, as referring instead to the person mentioned in sub-paragraph (5).

(5) That person is—

(a) the person nominated for the purposes of the transfer by OFCOM; or

(b) in default of a nomination, the member or employee of OFCOM who most closely corresponds to the member or officer originally referred to.

(6) Nothing in sub-paragraph (3) or (4) is to apply in relation to any reference in an enactment or in subordinate legislation.

Retrospective modification of a transfer scheme E+W+S+N.I.

3 (1) If at any time after the coming into force of a transfer scheme it appears to the Secretary of State that it is appropriate to do so, he may by order provide for the scheme to be deemed to have come into force with such modifications (including modifications retrospective to the time of the coming into force of the scheme) as may be provided for in the order. E+W+S+N.I.

(2) The power under this paragraph to provide by order for the modification of a transfer scheme shall be exercisable for the purpose only of making provision that could have been made by the scheme.

(3) Before making an order under this paragraph the Secretary of State must consult OFCOM.

Compensation E+W+S+N.I.

4 (1) Where, in consequence of any provision included in a transfer scheme, the interests, rights or liabilities of a third party are modified as mentioned in sub-paragraph (2), the third party is to be entitled to such compensation as may be just in respect of— E+W+S+N.I.

(a) any diminution in the value of any of his interests or rights, or

(b) any increase in the burden of his liabilities,

which is attributable to that modification.

(2) The modifications mentioned in sub-paragraph (1) are modifications by virtue of which—

(a) an interest of the third party in any property is transformed into, or replaced by—

(i) an interest in only part of that property; or

(ii) separate interests in different parts of that property;

(b) a right of the third party against any of the pre-commencement regulators or against the Secretary of State is transformed into, or replaced by, two or more rights which do not include a right which, on its own, is equivalent (disregarding the person against whom it is enforceable) to the right against that regulator or (as the case may be) against the Secretary of State; or

(c) a liability of the third party to any of the pre-commencement regulators or to the Secretary of State is transformed into, or replaced by, two or more separate liabilities at least one of which is a liability enforceable by a person other than the person by whom it was enforceable before being so transformed.

(3) Where—

(a) a third party would, apart from any provision of a transfer scheme, have become entitled to, or to exercise, any interest or right arising or exercisable in respect of the transfer or creation in accordance with such a scheme of any property, rights or liabilities, and

(b) the provisions of that scheme have the effect of preventing that person’s entitlement to, or to exercise, that interest or right from arising on any occasion in respect of anything mentioned in paragraph (a), and

(c) provision is not made by a transfer scheme for securing that an entitlement to, or to exercise, that interest or right or an equivalent interest or right, is preserved or created so as to arise in respect of the first occasion when corresponding circumstances next occur after the coming into force of the transfers for which the scheme provides,

the third party is to be entitled to such compensation as may be just in respect of the extinguishment of the interest or right.

(4) A liability to pay compensation under this paragraph shall fall on the persons mentioned in sub-paragraph (5) who (as the case may be)—

(a) have interests in the whole or any part of the property affected by the modification in question,

(b) are subject to the rights of the person to be compensated which are affected by the modification in question,

(c) are entitled to enforce the liabilities of the person to be compensated which are affected by that modification, or

(d) benefit from the extinguishment of the entitlement mentioned in sub-paragraph (3),

and that liability shall be apportioned between those persons in such manner as may be appropriate having regard to the extent of their respective interests, rights or liabilities or the extent of the benefit they respectively obtain from the extinguishment.

(5) Those persons are the pre-commencement regulators and the Secretary of State.

(6) Sub-paragraph (4) shall have effect subject to so much of any transfer scheme (including the one that gives rise to the liability) as makes provision for the transfer of any liability under that sub-paragraph to OFCOM.

(7) Any dispute as to whether, or as to the person by whom, any compensation is to be paid under this paragraph, and any dispute as to the amount of compensation to be paid by a person, shall be referred to and determined—

(a) where the claimant requires the matter to be determined in England and Wales or in Northern Ireland, by an arbitrator appointed by the Lord Chancellor, or

(b) where the claimant requires the matter to be determined in Scotland, by an arbiter appointed by the Lord President of the Court of Session.

(8) In this paragraph “third party”, in relation to provisions capable of giving rise to compensation under this paragraph, means any person other than—

(a) a pre-commencement regulator; and

(b) the Secretary of State.

Stamp duty E+W+S+N.I.

5 (1) Stamp duty is not to be chargeable— E+W+S+N.I.

(a) on a transfer scheme; or

(b) on an instrument or agreement certified by the Secretary of State to the Commissioners of Inland Revenue as made for the purposes of a transfer scheme, or as made for purposes connected with such a scheme.

(2) But a transfer scheme, or an instrument or agreement so certified, is to be treated as duly stamped only if—

(a) in accordance with section 12 of the Stamp Act 1891 (c. 39) it has been stamped with a stamp denoting either that it is not chargeable to duty or that it has been duly stamped; or

(b) it is stamped with the duty to which it would be chargeable apart from this paragraph.

Interpretation of Schedule E+W+S+N.I.

6 In this Schedule “transfer scheme” means a scheme made by a pre-commencement regulator or by the Secretary of State under section 30. E+W+S+N.I.

Section 106

SCHEDULE 3 E+W+S+N.I. Amendments of Schedule 2 to the Telecommunications Act 1984

Introductory E+W+S+N.I.

1 Schedule 2 to the Telecommunications Act 1984 (c. 12) (the telecommunications code) shall be amended as follows. E+W+S+N.I.

Meaning of conduit system and electronic communications apparatus, network or service E+W+S+N.I.

2 (1) In sub-paragraph (1) of paragraph 1 (interpretation of the code), after the definitions of “bridleway” and “footpath” there shall be inserted— E+W+S+N.I.

““conduit” includes a tunnel, subway, tube or pipe;

“conduit system” means a system of conduits provided so as to be available for use by providers of electronic communications networks for the purposes of the provision by them of their networks;”.

(2) In that sub-paragraph, after the definition of “the court” there shall be inserted—

““electronic communications apparatus” means—

(a) any apparatus (within the meaning of the Communications Act 2003) which is designed or adapted for use in connection with the provision of an electronic communications network;

(b) any apparatus (within the meaning of that Act) that is designed or adapted for a use which consists of or includes the sending or receiving of communications or other signals that are transmitted by means of an electronic communications network;

(c) any line;

(d) any conduit, structure, pole or other thing in, on, by or from which any electronic communications apparatus is or may be installed, supported, carried or suspended;

and references to the installation of electronic communications apparatus are to be construed accordingly;

“electronic communications network” has the same meaning as in the Communications Act 2003, and references to the provision of such a network are to be construed in accordance with the provisions of that Act;

“electronic communications service” has the same meaning as in the Communications Act 2003, and references to the provision of such a service are to be construed in accordance with the provisions of that Act;”.

(3) In that sub-paragraph, for the definition of “line” there shall be substituted—

““line” means any wire, cable, tube, pipe or similar thing (including its casing or coating) which is designed or adapted for use in connection with the provision of any electronic communications network or electronic communications service;”.

(4) In that sub-paragraph, after the definition of “road” there shall be inserted—

““signal” has the same meaning as in section 32 of the Communications Act 2003;”.

Meaning of operator and operator’s system E+W+S+N.I.

3 (1) In sub-paragraph (1) of paragraph 1 for the definitions of “the operator” and “the operator’s system” there shall be substituted— E+W+S+N.I.

““the operator” means—

(a) where the code is applied in any person’s case by a direction under section 106 of the Communications Act 2003, that person; and

(b) where it applies by virtue of section 106(3)(b) of that Act, the Secretary of State or (as the case may be) the Northern Ireland department in question;

“the operator’s network” means—

(a) in relation to an operator falling within paragraph (a) of the definition of “operator”, so much of any electronic communications network or conduit system provided by that operator as is not excluded from the application of the code under section 106(5) of the Communications Act 2003; and

(b) in relation to an operator falling within paragraph (b) of that definition, the electronic communications network which the Secretary of State or the Northern Ireland department is providing or proposing to provide;”.

(2) In that sub-paragraph—

(a) in the definition of “emergency works”, in paragraph (b), for “the operator’s system” there shall be substituted “ the operator’s network ”; and

(b) in the definition of “the statutory purposes” for “establishing and running the operator’s system” there shall be substituted “ the provision of the operator’s network ”.

Provision of a conduit system E+W+S+N.I.

4 After sub-paragraph (3) of paragraph 1 there shall be inserted— E+W+S+N.I.

“(3A) References in this code to the provision of a conduit system include references to establishing or maintaining such a system.”

General amendments E+W+S+N.I.

5 In paragraphs 2 to 28— E+W+S+N.I.

(a) for the words “telecommunication apparatus”, wherever occurring, there shall be substituted “ electronic communications apparatus ”;

(b) for the words “telecommunication services”, wherever occurring, there shall be substituted “ electronic communications services ”;

(c) for the words “a telecommunication system”, wherever occurring, there shall be substituted “ an electronic communications network or to electronic communications services ”; and

(d) for the word “system”, wherever occurring (otherwise than in the expression “telecommunication system”), there shall be substituted “ network ”.

Power to fly lines E+W+S+N.I.

6 In paragraph 10 (power to fly lines), after sub-paragraph (2) there shall be inserted— E+W+S+N.I.

“(3) In this paragraph “business” includes a trade, profession or employment and includes any activity carried on by a body of persons (whether corporate or unincorporate).”

Power to require alteration of apparatus E+W+S+N.I.

7 In paragraph 20(4)(b) (alteration not to interfere with service provided by the operator’s network), for “provided by” there shall be substituted “ which is or is likely to be provided using ”. E+W+S+N.I.

Undertaker’s works E+W+S+N.I.

8 In paragraph 23(10) (interpretation of provisions relating to undertakers' works), in paragraph (b) of the definition of “relevant undertaker”, for the words “by a licence under section 7 of this Act” there shall be substituted “ by a direction under section 106 of the Communications Act 2003 ”. E+W+S+N.I.

Notices under the code E+W+S+N.I.

9 (1) In sub-paragraph (1) of paragraph 24 (notices in a form approved by the Director), for “the Director” there shall be substituted “ OFCOM ”. E+W+S+N.I.

(2) For sub-paragraphs (2) to (4) of that paragraph there shall be substituted—

“(2) A notice required to be given to any person for the purposes of any provision of this code is not to be sent to him by post unless it is sent by a registered post service or by recorded delivery.

(2A) For the purposes, in the case of such a notice, of section 394 of the Communications Act 2003 and the application of section 7 of the Interpretation Act 1978 in relation to that section, the proper address of a person is—

(a) if the person to whom the notice is to be given has furnished the person giving the notice with an address for service under this code, that address; and

(b) only if he has not, the address given by that section of the Act of 2003.”

(3) In sub-paragraph (6) of that paragraph—

(a) for “purporting to be signed by the Director” there shall be substituted “ issued by OFCOM ”; and

(b) for “him” there shall be substituted “ them ”.

Application of code to the Crown E+W+S+N.I.

10 In paragraph 26(4) (Crown application provision not to apply where the telecommunication system is being provided or is to be provided by the Secretary of State or a Northern Ireland department), for “has effect by virtue of section 10(1)(b) of this Act” there shall be substituted “ applies in the case of the Secretary of State or a Northern Ireland department by virtue of section 106(3)(b) of the Communications Act 2003 ”. E+W+S+N.I.

Effect of agreements concerning sharing of apparatus E+W+S+N.I.

11 After paragraph 28, there shall be inserted— E+W+S+N.I.

“Effect of agreements concerning sharing of apparatus E+W+S+N.I.

29 (1) This paragraph applies where—

(a) this code has been applied by a direction under section 106 of the Communications Act 2003 in a person’s case;

(b) this code expressly or impliedly imposes a limitation on the use to which electronic communications apparatus installed by that person may be put or on the purposes for which it may be used; and

(c) that person is a party to a relevant agreement or becomes a party to an agreement which (after he has become a party to it) is a relevant agreement.

(2) The limitation is not to preclude—

(a) the doing of anything in relation to that apparatus, or

(b) its use for particular purposes,

to the extent that the doing of that thing, or the use of the apparatus for those purposes, is in pursuance of the agreement.

(3) This paragraph is not to be construed, in relation to a person who is entitled or authorised by or under a relevant agreement to share the use of apparatus installed by another party to the agreement, as affecting any consent requirement imposed (whether by a statutory provision or otherwise) on that person.

(4) In this paragraph—

• “consent requirement”, in relation to a person, means a requirement for him to obtain consent or permission to or in connection with—

  (a)

  the installation by him of apparatus; or

  (b)

  the doing by him of any other thing in relation to apparatus the use of which he is entitled or authorised to share;

• “relevant agreement” means an agreement in relation to electronic communications apparatus which—

  (a)

  relates to the sharing by different parties to the agreement of the use of that apparatus; and

  (b)

  is an agreement that satisfies the requirements of sub-paragraph (5);

• “statutory provision” means a provision of an enactment or of an instrument having effect under an enactment.

(5) An agreement satisfies the requirements of this sub-paragraph if—

(a) every party to the agreement is a person in whose case this code applies by virtue of a direction under section 106 of the Communications Act 2003; or

(b) one or more of the parties to the agreement is a person in whose case this code so applies and every other party to the agreement is a qualifying person.

(6) A person is a qualifying person for the purposes of sub-paragraph (5) if he is either—

(a) a person who provides an electronic communications network without being a person in whose case this code applies; or

(b) a designated provider of an electronic communications service consisting in the distribution of a programme service by means of an electronic communications network.

(7) In sub-paragraph (6)—

• “designated” means designated by an order made by the Secretary of State;

• “programme service” has the same meaning as in the Broadcasting Act 1990.”

Section 118

SCHEDULE 4 E+W+S+N.I. Compulsory purchase and entry for exploratory purposes

Interpretation E+W+S+N.I.

1 In this Schedule— E+W+S+N.I.

• “code operator” means a provider of an electronic communications network in whose case the electronic communications code is applied by a direction under section 106; and

• “the operator’s network”, in relation to a code operator, means so much of the electronic communications network provided by the operator as is not excluded from the application of the electronic communications code under section 106(5).

General duties with respect to powers under Schedule E+W+S+N.I.

2 In exercising his powers under this Schedule it shall be the duty of the Secretary of State to have regard, in particular, to each of the following— E+W+S+N.I.

(a) the duties imposed on OFCOM by sections 3 and 4;

(b) the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside;

(c) the need to ensure that highways are not damaged or obstructed, and traffic not interfered with, to any greater extent than is reasonably necessary;

(d) the need to encourage the sharing of the use of electronic communications apparatus.

Compulsory purchase of land: England and Wales E+W+S+N.I.

3 (1) Subject to sub-paragraph (2), the Secretary of State may authorise a code operator to purchase compulsorily any land in England and Wales which is required by the operator— E+W+S+N.I.

(a) for, or in connection with, the establishment or running of the operator’s network; or

(b) as to which it can reasonably be foreseen that it will be so required.

(2) No order is to be made authorising a compulsory purchase under this paragraph by a code operator except with OFCOM’s consent.

(3) This power to purchase land compulsorily includes power to acquire an easement or other right over land by the creation of a new right.

(4) The Acquisition of Land Act 1981 (c. 67) is to apply to any compulsory purchase under this paragraph as if the code operator were a local authority within the meaning of that Act.

(5) The provisions of the Town and Country Planning Act 1990 (c. 8) specified in sub-paragraph (6) have effect in relation to land acquired compulsorily by a code operator under this paragraph as they have effect in relation to land acquired compulsorily by statutory undertakers.

(6) Those provisions are—

(a) sections 238 to 240 (use and development of consecrated land and burial ground);

(b) section 241 (use and development of land for open spaces); and

(c) sections 271 to 274(extinguishment of rights of way, and rights as to apparatus, of statutory undertakers).

(7) Where a code operator has acquired land under this paragraph, he must not dispose of that land, or of an interest or right in or over it, except with OFCOM’s consent.

Compulsory purchase of land: Scotland E+W+S+N.I.

4 (1) Subject to sub-paragraph (2), the Secretary of State may authorise a code operator to purchase compulsorily any land in Scotland which is required by the operator— E+W+S+N.I.

(a) for, or in connection with, the establishment or running of the operator’s network; or

(b) as to which it can reasonably be foreseen that it will be so required.

(2) No order is to be made authorising a compulsory purchase under this paragraph except with OFCOM’s consent.

(3) This power to purchase land compulsorily includes power to acquire a servitude or other right over land by the creation of a new right.

(4) The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42) applies to any compulsory purchase under this paragraph as if—

(a) the code operator were a local authority within the meaning of that Act; and

(b) this paragraph had been in force immediately before the commencement of that Act.

(5) The provisions of the Town and Country Planning (Scotland) Act 1997 (c. 8) specified in sub-paragraph (6) have effect in relation to land acquired compulsorily by a code operator under this paragraph as they have effect in relation to land acquired compulsorily by statutory undertakers.

(6) Those provisions are—

(a) section 197 (provisions as to churches and burial grounds);

(b) section 198 (use and development of land for open spaces); and

(c) sections 224 to 227 (extinguishment of rights of way, and rights as to apparatus, of statutory undertakers).

(7) Where a code operator has acquired land under this paragraph, he must not dispose of that land, or of any interest or right in or over it, except with OFCOM’s consent.

Compulsory purchase of land: Northern Ireland E+W+S+N.I.

5 (1) Where a code operator proposes to acquire, otherwise than by agreement, any land in Northern Ireland required by him— E+W+S+N.I.

(a) for, or in connection with, the establishment or running of the operator’s network, or

(b) as to which it can reasonably be foreseen that it will be so required,

he may, with OFCOM’s consent, apply to the Secretary of State for an order vesting that land in him.

(2) On such an application the Secretary of State is to have power to make such an order.

(3) This power to acquire land compulsorily includes power to acquire an easement or other right over land by the creation of a new right.

(4) Where a code operator has acquired land under this paragraph, he must not dispose of that land, or of any interest or right in or over it, except with OFCOM’s consent.

(5) The following provisions—

(a) Schedule 6 to the Local Government Act (Northern Ireland) 1972 (c. 9 (N.I.)) (acquisition of land by vesting order), and

(b) Schedule 8 to the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14)) (provisions as to inquiries),

have effect for the purposes of the acquisition of land by means of a vesting order under this paragraph as they have effect for the purposes of that Act and that Order but subject to the modifications set out in sub-paragraph (6).

(6) Those modifications are—

(a) for any reference to the Department substitute a reference to the Secretary of State;

(b) for any reference to the Act or Order in question substitute a reference to this Act;

(c) for any reference in Schedule 6 to the Local Government Act (Northern Ireland) 1972 to a council substitute a reference to the code operator;

(d) in paragraph 6(2) of that Schedule, for the words from “the fund” onwards substitute “ funds of the code operator (in this Schedule referred to as “the compensation fund”) and shall be discharged by payments made by the code operator ”; and

(e) in paragraph 12(2) of that Schedule for “the clerk of the council” substitute “ such person as may be designated for the purposes of this Schedule by the code operator ”.

(7) The enactments for the time being in force relating to the assessment of compensation in respect of land vested in a district council by an order made under Schedule 6 to the Local Government Act (Northern Ireland) 1972 are to apply, subject to any necessary modifications, in relation to land vested in a code operator by an order made under this paragraph.

(8) In this paragraph, “land” has the meaning assigned to it by section 45(1)(a) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Entry on land for exploratory purposes: England and Wales E+W+S+N.I.

6 (1) A person— E+W+S+N.I.

(a) nominated by a code operator, and

(b) duly authorised in writing by the Secretary of State,

may, at any reasonable time, enter upon and survey land in England and Wales for the purpose of ascertaining whether the land would be suitable for use by the code operator for, or in connection with, the establishment or running of the operator’s network.

(2) This paragraph does not apply in relation to land covered by buildings or used as a garden or pleasure ground.

(3) Sections 324(8) and 325(1) to (5), (8) and (9) of the Town and Country Planning Act 1990 (c. 8) (supplementary provisions relating to powers of entry) have effect in relation to the power conferred by this paragraph—

(a) as they have effect in relation to the powers conferred by section 324 of that Act; but

(b) subject to the modifications set out in sub-paragraph (4).

(4) Those modifications are—

(a) in section 324(8) (power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals) omit “or the presence of minerals therein”; and

(b) in section 325(1) (24 hours' notice to be given of an intended entry upon occupied land) for “24 hours” substitute “ 28 days ”.

(5) Where, in an exercise of the power conferred by this paragraph, any damage is caused to land or to chattels, the code operator must—

(a) make good the damage; or

(b) pay compensation in respect of the damage to every person interested in the land or chattels.

(6) Where, in consequence of an exercise of the power conferred by this paragraph, a person is disturbed in his enjoyment of land or chattels, the code operator must pay that person compensation in respect of the disturbance.

(7) Section 118 of the Town and Country Planning Act 1990 (c. 8) (determination of disputes as to compensation) applies to any question of disputed compensation under this paragraph as it applies to such questions under Part 4 of that Act.

Entry on land for exploratory purposes: Scotland E+W+S+N.I.

7 (1) A person— E+W+S+N.I.

(a) nominated by a code operator, and

(b) duly authorised in writing by the Secretary of State,

may, at any reasonable time, enter upon and survey any land in Scotland for the purpose of ascertaining whether the land would be suitable for use by the code operator for, or in connection with, the establishment or running of the operator’s network.

(2) This paragraph does not apply in relation to land covered by buildings or used as a garden or pleasure ground.

(3) Sections 269(6) and 270(1) to (5), (8) and (9) of the Town and Country Planning (Scotland) Act 1997 (c. 8) (supplementary provisions relating to powers of entry) have effect in relation to the power conferred by this section—

(a) as they have effect in relation to the powers conferred by section 269 of that Act; but

(b) subject to the modifications set out in sub-paragraph (4).

(4) Those modifications are—

(a) in section 269(6) (power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals), omit “or the presence of minerals therein”; and

(b) in section 270(1) (24 hours' notice to be given of an intended entry upon occupied land) for “24 hours” substitute “ 28 days ”.

(5) Where, in an exercise of the power conferred by this paragraph, damage is caused to land or to corporeal moveables, the code operator must—

(a) make good the damage; or

(b) pay compensation in respect of the damage to every person interested in the land or corporeal moveables.

(6) Where, in consequence of an exercise of the power conferred by this paragraph, a person is disturbed in his enjoyment of any land or corporeal moveables, the code operator must pay that person compensation in respect of the disturbance.

(7) A dispute arising under this paragraph—

(a) as to the effect of damage, or

(b) as to the amount of compensation,

must be determined by arbitration by a single arbiter appointed by agreement between the parties or, in default of an agreement, by the Secretary of State.

Entry on land for exploratory purposes: Northern Ireland E+W+S+N.I.

8 (1) A person— E+W+S+N.I.

(a) nominated by a code operator, and

(b) duly authorised in writing by the Secretary of State,

may, at any reasonable time, enter upon and survey any land in Northern Ireland for the purpose of ascertaining whether the land would be suitable for use by the code operator for, or in connection with, the establishment or running of the operator’s network.

(2) This paragraph does not apply in relation to land covered by buildings or used as a garden or pleasure ground.

(3) Subsections (2) to (5) and (8) of section 40 of the Land Development Values (Compensation) Act (Northern Ireland) 1965 (c. 23 (N.I.)) (supplementary provisions relating to powers of entry) have effect in relation to the power of entry conferred by this paragraph—

(a) as they have effect in relation to the power conferred by that section; but

(b) subject to the modifications set out in sub-paragraph (4).

(4) Those modifications are—

(a) in section 40(2) (power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals) omit “or the presence of minerals therein”; and

(b) in section 40(3)(b) (three days' notice to be given of an intended entry upon occupied land) for the word “three” substitute “ twenty eight ”.

(5) Where, in an exercise of the power conferred by this paragraph, damage is caused to land or to chattels, the code operator must—

(a) make good the damage; or

(b) pay compensation in respect of the damage to every person interested in the land or chattels.

(6) Where, in consequence of an exercise of the power conferred by this paragraph, a person is disturbed in his enjoyment of any land or chattels, the code operator must pay that person compensation in respect of the disturbance.

(7) Section 31 of the Land Development Values (Compensation) Act (Northern Ireland) 1965 (determination of disputes as to compensation) applies to any question of disputed compensation under this paragraph as it applies to such questions under Part 3 of that Act.

Acquisition of land by agreement E+W+S+N.I.

9 (1) For the purpose of the acquisition by agreement by a code operator of land in England and Wales, the provisions of Part 1 of the Compulsory Purchase Act 1965 (c. 56) (so far as applicable), other than sections 4 to 8 (time limits, notices to treat etc.) and section 31 (ecclesiastical property), apply as they apply for the purposes of that Act. E+W+S+N.I.

(2) For the purpose of the acquisition by agreement by a code operator of land in Scotland, section 109(2) of the Town and Country Planning (Scotland) Act 1972 (c. 52) (incorporation of Lands Clauses Acts) applies, with any necessary modifications, for the purposes of this Act as it applies for the purposes of that Act.

(3) For the purpose of the acquisition by agreement by a code operator of land in Northern Ireland, the Lands Clauses Acts, except for sections 127 to 132 (sale of superfluous land) and sections 150 and 151 (access to the special Act) of the Lands Clauses Consolidation Act 1845 (c. 18), apply as they apply for the purposes of those Acts.

Section 159

SCHEDULE 5 E+W+S+N.I. Procedure for grants of recognised spectrum access

General procedure for applications E+W+S+N.I.

1 (1) An application for a grant of recognised spectrum access shall be determined in accordance with procedures prescribed in regulations made by OFCOM. E+W+S+N.I.

(2) Section 403 applies to regulations made under this paragraph.

(3) The procedures must include provision for—

(a) time limits for dealing with applications for a grant of recognised spectrum access;

(b) requirements which must be met before a grant is made;

(c) the restrictions and conditions to which a grant may be made subject.

Information to be provided in connection with applications E+W+S+N.I.

2 The grounds on which a grant of recognised spectrum access may be refused by OFCOM include a failure by the applicant to provide information which OFCOM reasonably require in order to satisfy themselves that the applicant is able to comply with restrictions or conditions to which the grant may be made subject. E+W+S+N.I.

Notice of proposed refusal of application E+W+S+N.I.

3 (1) Where OFCOM propose to refuse an application for a grant of recognised spectrum access, they shall give notice to the applicant— E+W+S+N.I.

(a) stating the reasons for their proposal; and

(b) specifying a period within which representations may be made about the proposal.

(2) That period must be a period ending not less than one month after the day of the giving of the notice.

Duration of grant E+W+S+N.I.

4 A grant of recognised spectrum access continues in force, unless previously revoked by OFCOM, for such period as may be specified in the notification by which the grant is made. E+W+S+N.I.

Revocation or modification E+W+S+N.I.

5 OFCOM may revoke or modify a grant of recognised spectrum access, or the restrictions or conditions to which such a grant is subject, by a notice to the person to whom the grant was made. E+W+S+N.I.

Notice of proposed revocation or modification E+W+S+N.I.

6 (1) Where OFCOM propose to revoke or modify a grant of recognised spectrum access or a restriction or condition to which such a grant is subject, they shall give a notification to the holder of the grant— E+W+S+N.I.

(a) stating the reasons for their proposal; and

(b) specifying the period during which the person notified has an opportunity to do the things specified in sub-paragraph (2).

(2) Those things are—

(a) making representations about the proposal; and

(b) if the proposal is the result of a contravention of a restriction or condition of the grant, complying with it.

(3) Subject to sub-paragraphs (4) to (6), the period for doing those things must be the period of one month beginning with the day after the one on which the notification was given.

(4) OFCOM may, if they think fit, allow a longer period for doing those things either—

(a) by specifying a longer period in the notification; or

(b) by subsequently, on one or more occasions, extending the specified period.

(5) The person notified shall have a shorter period for doing those things if a shorter period is agreed between OFCOM and the person notified.

(6) The person notified shall also have a shorter period if—

(a) OFCOM have reasonable grounds for believing that the case is a case of serious and repeated contravention or an urgent case;

(b) they have determined that, in the circumstances, a shorter period would be appropriate; and

(c) the shorter period has been specified in the notification.

(7) A case is an urgent case if the failure to revoke or modify the grant will result in, or create an immediate risk of—

(a) a serious threat to the safety of the public, to public health or to national security; or

(b) serious economic or operational problems for persons, other than the person in contravention, who—

(i) use stations or apparatus for wireless telegraphy; or

(ii) are communications providers or make associated facilities available.

(8) For the purposes of this paragraph a contravention of a restriction or condition of a grant of recognised spectrum access is a repeated contravention, in relation to a proposal to revoke or modify the grant, if it falls within sub-paragraph (9).

(9) A contravention falls within this sub-paragraph if—

(a) a previous notification under sub-paragraph (1) has been given in respect of the same contravention or in respect of any other contravention of a restriction or condition of the same grant; and

(b) the subsequent notification under that sub-paragraph is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of sub-paragraph (10) that the contravention to which the previous notification related did occur.

(10) Where OFCOM have given a notification under sub-paragraph (1), they shall, within the period of one month beginning with the end of the period for the making of representations about the proposal contained in that notification—

(a) decide whether or not to revoke or modify the grant of recognised spectrum access in accordance with their proposal, or in accordance with that proposal but with modifications; and

(b) give the holder of the grant a notification of their decision.

(11) The notification under sub-paragraph (10)—

(a) must be given no more than one week after the making of the decision to which it relates; and

(b) must, in accordance with that decision, either revoke or modify the grant or withdraw the proposal for revocation or modification.

(12) Nothing in this paragraph is to apply to—

(a) a revocation or modification to be made at the request or with the consent of the holder of the grant; or

(b) a revocation or modification that appears to OFCOM to be necessary or expedient for the purpose of securing compliance with an international obligation of the United Kingdom.

(13) The reference in sub-paragraph (9) to a contravention of a restriction or condition of a grant includes a reference to a contravention of a restriction or condition contained in any previous grant of which the grant in question is a direct or indirect renewal.

Restriction on powers of revocation and modification E+W+S+N.I.

7 (1) The conditions that OFCOM may include in a grant of recognised spectrum access include conditions restricting the exercise by them of their power to revoke or modify that grant. E+W+S+N.I.

(2) Those conditions include, in particular, conditions providing that the grant may not be revoked or modified except—

(a) with the consent of the holder of the grant; or

(b) in such other circumstances, and on such grounds, as may be specified in the conditions.

(3) The circumstances or grounds—

(a) may relate to matters relevant for the purposes of any enactment (whether relating to wireless telegraphy or not); and

(b) may, in particular, be made dependent on the exercise of a statutory discretion under any enactment.

(4) Nothing in any condition included in a grant of recognised spectrum access shall restrict the power of OFCOM to revoke or modify a grant of recognised spectrum access if it appears to OFCOM to be necessary or appropriate to do so—

(a) in the interests of national security;

(b) in the interests of the safety of the public or public health; or

(c) for the purpose of securing compliance with any international obligation of the United Kingdom.

Interpretation E+W+S+N.I.

8 In this Schedule, “stations for wireless telegraphy” and “apparatus for wireless telegraphy” each has the same meaning as in the Wireless Telegraphy Act 1949 (c. 54). E+W+S+N.I.

Section 180

SCHEDULE 6 E+W+S+N.I. Fixed penalties for wireless telegraphy offences

Offences to which this Schedule applies E+W+S+N.I.

1 (1) This Schedule applies to an offence under the Wireless Telegraphy Act 1949 which— E+W+S+N.I.

(a) is a summary offence; and

(b) is committed after the coming into force of section 180.

(2) Such an offence is referred to in this Schedule as a “relevant offence”.

Fixed penalties and fixed penalty notices E+W+S+N.I.

2 (1) The fixed penalty for a relevant offence is such amount as may be prescribed in relation to that offence by regulations made by the Secretary of State. E+W+S+N.I.

(2) The amount prescribed by regulations under sub-paragraph (1) is not to be more than 25 per cent. of the maximum fine on summary conviction for the offence in question.

(3) In this Schedule “fixed penalty notice” means a notice offering the opportunity of the discharge of any liability to conviction of the offence to which the notice relates by payment of a fixed penalty in accordance with this Schedule.

Issuing of fixed penalty notice E+W+S+N.I.

3 (1) If OFCOM have reason to believe that a person has committed a relevant offence, they may send a fixed penalty notice to that person. E+W+S+N.I.

(2) If a procurator fiscal receives a report that a person has committed a relevant offence in Scotland, he also shall have power to send a fixed penalty notice to that person.

(3) If an authorised person has, on any occasion, reason to believe that a person—

(a) is committing a relevant offence, or

(b) has on that occasion committed a relevant offence,

he may hand that person a fixed penalty notice.

(4) In this paragraph “authorised person” means a person authorised by OFCOM, for the purposes of sub-paragraph (3), to issue fixed penalty notices on OFCOM’s behalf.

(5) References in this Schedule to the person by whom a fixed penalty notice is issued, in relation to a notice handed to a person in accordance with sub-paragraph (3), are references to OFCOM.

Content of fixed penalty notice E+W+S+N.I.

4 (1) A fixed penalty notice must— E+W+S+N.I.

(a) state the alleged offence;

(b) give such particulars of the circumstances alleged to constitute that offence as are necessary for giving reasonable information about it;

(c) state the fixed penalty for that offence;

(d) specify the relevant officer to whom the fixed penalty may be paid and the address at which it may be paid;

(e) state that proceedings against the person to whom it is issued cannot be commenced in respect of the offence until the end of the suspended enforcement period;

(f) state that such proceedings cannot be commenced if the penalty is paid within the suspended enforcement period;

(g) inform the person to whom it is issued of his right to ask to be tried for the alleged offence; and

(h) explain how that right may be exercised and the effect of exercising it.

(2) The suspended enforcement period for the purposes of this Schedule is—

(a) the period of one month beginning with the day after that on which the fixed penalty notice was issued; or

(b) such longer period as may be specified in the notice.

Withdrawal of fixed penalty notice E+W+S+N.I.

5 If it appears to a person who has issued a fixed penalty notice that it was wrongly issued— E+W+S+N.I.

(a) he may withdraw the notice by a further notice to the person to whom it was issued; and

(b) if he does so, the relevant officer must repay any amount paid in respect of the penalty.

Notification to person to whom payment is to be made E+W+S+N.I.

6 A person who issues or withdraws a fixed penalty notice shall send a copy of the notice or (as the case may be) of the notice of withdrawal to the relevant officer specified in the notice being issued or withdrawn. E+W+S+N.I.

Effect of fixed penalty notice E+W+S+N.I.

7 (1) This paragraph applies if a fixed penalty notice is issued to a person (“the alleged offender”). E+W+S+N.I.

(2) Proceedings for the offence to which the notice relates cannot be brought against the alleged offender until the person who issued the notice has been notified by the relevant officer specified in the notice that payment of the fixed penalty has not been made within the suspended enforcement period.

(3) If the alleged offender asks to be tried for the alleged offence—

(a) sub-paragraph (2) does not apply; and

(b) proceedings may be brought against him.

(4) Such a request must be made by a notice given by the alleged offender—

(a) in the manner specified in the fixed penalty notice; and

(b) before the end of the suspended enforcement period.

(5) A request which is made in accordance with sub-paragraph (3) is referred to in this Schedule as a “request to be tried”.

Payment of fixed penalty E+W+S+N.I.

8 (1) If the alleged offender decides to pay the fixed penalty, he must pay it to the relevant officer specified in the notice. E+W+S+N.I.

(2) Payment of the penalty may be made by properly addressing, pre-paying and posting a letter containing the amount of the penalty (in cash or otherwise).

(3) Sub-paragraph (4) applies if a person—

(a) claims to have made payment by that method; and

(b) shows that his letter was posted.

(4) Unless the contrary is proved, payment is to be regarded as made at the time at which the letter would be delivered in the ordinary course of post.

(5) Sub-paragraph (2) is not to be read as preventing the payment of a penalty by other means.

(6) A letter is properly addressed for the purposes of sub-paragraph (2) if it is addressed in accordance with the requirements specified in the fixed penalty notice.

Effect of payment E+W+S+N.I.

9 If the fixed penalty specified in a fixed penalty notice is paid within the period specified in that notice, no proceedings for the offence to which that notice relates may be brought against the alleged offender. E+W+S+N.I.

Service of statement and proof of service E+W+N.I.

10 (1) This paragraph applies to proceedings for a relevant offence. E+W+N.I.

(2) A certificate by OFCOM—

(a) that a copy of a statement by a person authorised by OFCOM was included in, or given with, a fixed penalty notice,

(b) that the notice was a notice with respect to the relevant offence, and

(c) that that notice was issued to the accused on a date specified in the certificate,

is evidence that a copy of the statement was served on the alleged offender by delivery to him on that date.

(3) The statement is to be treated as properly served for the purposes of—

(a) section 9 of the Criminal Justice Act 1967 (c. 80) (proof by written statement), and

(b) section 1 of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (c. 28 (N.I.)) (which contains corresponding provision for Northern Ireland),

even though the manner of service is not authorised by subsection (8) of either of those sections.

(4) Sub-paragraphs (5) and (6) apply to any proceedings in which service of a statement is proved by a certificate under this paragraph.

(5) For the purposes of—

(a) section 9(2)(c) of the Criminal Justice Act 1967 (copy of statement to be tendered in evidence to be served before hearing on other parties to the proceedings by or on behalf of the party proposing to tender it), and

(b) section 1(2)(c) of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (which contains corresponding provision for Northern Ireland),

service of the statement is to be taken to have been effected by or on behalf of the prosecutor.

(6) If the alleged offender makes a request to be tried—

(a) section 9(2)(d) of the Criminal Justice Act 1967 (time for objection), and

(b) section 1(2)(d) of the Criminal Justice (Miscellaneous Provisions) Act (Northern Ireland) 1968 (which contains corresponding provision for Northern Ireland),

are to apply with the substitution, for the reference to seven days from the service of the copy of the statement, of a reference to seven days beginning with the day after the one on which the request to be tried was made.

(7) This paragraph does not extend to Scotland.

Certificate about payment E+W+S+N.I.

11 In any proceedings, a certificate— E+W+S+N.I.

(a) that payment of a fixed penalty was, or was not, received by the relevant officer specified in the fixed penalty notice by a date specified in the certificate, or

(b) that a letter containing an amount sent by post in payment of a fixed penalty was marked as posted on a date specified in the certificate,

shall, if the certificate purports to be signed by that officer, be evidence (and in Scotland sufficient evidence) of the facts stated.

Regulations E+W+S+N.I.

12 The Secretary of State may by regulations make provision as to any matter incidental to the operation of this Schedule, and in particular— E+W+S+N.I.

(a) for prescribing any information or further information to be provided in a notice, notification, certificate or receipt;

(b) for prescribing the duties of relevant officers and the information to be supplied to and by them.

Interpretation E+W+S+N.I.

13 In this Schedule “relevant officer” means— E+W+S+N.I.

(a) in relation to England and Wales, the justices' chief executive;

(b) in relation to Scotland, the clerk of court; and

(c) in relation to Northern Ireland, the clerk of petty sessions.

Section 182

SCHEDULE 7 E+W+S+N.I. Seizure and forfeiture of apparatus

Application of Schedule E+W+S+N.I.

1 (1) This Schedule applies to restricted apparatus seized, after the coming into force of this Schedule— E+W+S+N.I.

(a) in pursuance of a warrant granted under section 15(1) of the Wireless Telegraphy Act 1949 (c. 54); or

(b) in the exercise of the power conferred by section 79(3) of the Telecommunications Act 1984 (c. 12).

(2) Apparatus is restricted apparatus for the purposes of this Schedule if custody or control of apparatus of any class or description to which it belongs is for the time being restricted by an order under section 7 of the Wireless Telegraphy Act 1967 (c. 72).

Notice of seizure E+W+S+N.I.

2 (1) OFCOM must give notice of the seizure of the restricted apparatus to every person who, to their knowledge, was at the time of the seizure the owner or one of the owners of the apparatus. E+W+S+N.I.

(2) The notice must set out the grounds of the seizure.

(3) Where there is no proper address for the purposes of the service of a notice under sub-paragraph (1) in a manner authorised by section 394, the requirements of that sub-paragraph shall be satisfied by the publication of a notice of the seizure (according to the part of the United Kingdom where the seizure took place) in the London, Edinburgh or Belfast Gazette.

(4) Apparatus may be condemned or taken to have been condemned under this Schedule only if the requirements of this paragraph have been complied with in the case of that apparatus.

Notice of claim E+W+S+N.I.

3 A person claiming that the restricted apparatus is not liable to forfeiture must give written notice of his claim to OFCOM. E+W+S+N.I.

4 (1) A notice of claim must be given within one month after the day of the giving of the notice of seizure. E+W+S+N.I.

(2) A notice of claim must specify—

(a) the name and address of the claimant; and

(b) in the case of a claimant who is outside the United Kingdom, the name and address of a solicitor in the United Kingdom who is authorised to accept service of process and to act on behalf of the claimant.

(3) Service of process upon a solicitor so specified is to be taken to be proper service upon the claimant.

Condemnation E+W+S+N.I.

5 The restricted apparatus is to be taken to have been duly condemned as forfeited if— E+W+S+N.I.

(a) by the end of the period for the giving of a notice of claim in respect of the apparatus, no such notice has been given to OFCOM; or

(b) a notice of claim is given which does not comply with the requirements of paragraphs 3 and 4.

6 (1) Where a notice of claim in respect of the restricted apparatus is duly given in accordance with paragraphs 3 and 4, OFCOM may take proceedings for the condemnation of that apparatus by the court. E+W+S+N.I.

(2) In any such proceedings—

(a) if the court finds that the apparatus was liable to forfeiture at the time of seizure, it must condemn the apparatus as forfeited unless cause is shown why it should not; and

(b) if the court finds that the apparatus was not liable to forfeiture at that time, or cause is shown why it should not be forfeited, the court must order the return of the apparatus to the person appearing to the court to be entitled to it.

(3) If OFCOM decide not to take proceedings for condemnation in a case in which a notice of claim has been so given, they must return the apparatus to the person appearing to them to be the owner of the apparatus, or to one of the persons appearing to them to be the owners of it.

(4) Apparatus required to be returned in accordance with sub-paragraph (3) must be returned as soon as reasonably practicable after the decision not to take proceedings for condemnation.

(5) OFCOM’s decision whether to take such proceedings must be taken as soon as reasonably practicable after the receipt of the notice of claim.

7 Where the restricted apparatus is condemned or taken to have been condemned as forfeited, the forfeiture is to have effect as from the time of the seizure. E+W+S+N.I.

Proceedings for condemnation by court E+W+S+N.I.

8 Proceedings for condemnation are civil proceedings and may be instituted— E+W+S+N.I.

(a) in England or Wales, either in the High Court or in a magistrates' court;

(b) in Scotland, either in the Court of Session or in the sheriff court;

(c) in Northern Ireland, either in the High Court or in a court of summary jurisdiction.

9 Proceedings for the condemnation of restricted apparatus instituted in a magistrates' court in England or Wales, in the sheriff court in Scotland or in a court of summary jurisdiction in Northern Ireland may be so instituted— E+W+S+N.I.

(a) in any such court having jurisdiction in a place where an offence under section 7 of the Wireless Telegraphy Act 1967 (c. 72) involving that apparatus was committed;

(b) in any such court having jurisdiction in proceedings for such an offence;

(c) in any such court having jurisdiction in the place where the claimant resides or, if the claimant has specified a solicitor under paragraph 4, in the place where that solicitor has his office; or

(d) in any such court having jurisdiction in the place where that apparatus was seized or to which it was first brought after being seized.

10 (1) In proceedings for condemnation that are instituted in England and Wales or Northern Ireland, the claimant or his solicitor must make his oath that the seized apparatus was, or was to the best of his knowledge and belief, the property of the claimant at the time of the seizure. E+W+S+N.I.

(2) In proceedings for condemnation instituted in the High Court—

(a) the court may require the claimant to give such security for the costs of the proceedings as may be determined by the court; and

(b) the claimant must comply with any such requirement.

(3) If a requirement of this paragraph is not complied with, the court shall give judgment for OFCOM.

11 (1) In the case of proceedings for condemnation instituted in a magistrates' court in England or Wales, either party may appeal against the decision of that court to the Crown Court. E+W+S+N.I.

(2) In the case of proceedings for condemnation instituted in a court of summary jurisdiction in Northern Ireland, either party may appeal against the decision of that court to the county court.

(3) This paragraph does not affect any right to require the statement of a case for the opinion of the High Court.

12 Where an appeal has been made (whether by case stated or otherwise) against the decision of the court in proceedings for the condemnation of restricted apparatus, that apparatus is to be left with OFCOM pending the final determination of the matter. E+W+S+N.I.

Disposal of unclaimed property E+W+S+N.I.

13 (1) This paragraph applies where a requirement is imposed by or under this Schedule for apparatus to be returned to a person. E+W+S+N.I.

(2) If the apparatus is still in OFCOM’s possession after the end of the period of twelve months beginning with the day after the requirement to return it arose, OFCOM may dispose of it in any manner they think fit.

(3) OFCOM may exercise their power under this paragraph to dispose of apparatus only if it is not practicable at the time when the power is exercised to dispose of the apparatus by returning it immediately to the person to whom it is required to be returned.

Provisions as to proof E+W+S+N.I.

14 In proceedings arising out of the seizure of restricted apparatus, the fact, form and manner of the seizure is to be taken, without further evidence and unless the contrary is shown, to have been as set forth in the process. E+W+S+N.I.

15 In any proceedings, the condemnation by a court of restricted apparatus as forfeited may be proved by the production of either— E+W+S+N.I.

(a) the order or certificate of condemnation; or

(b) a certified copy of the order purporting to be signed by an officer of the court by which the order or certificate was made or granted.

Special provisions as to certain claimants E+W+S+N.I.

16 (1) This paragraph applies for the purposes of a claim to the restricted apparatus, and of proceedings for its condemnation. E+W+S+N.I.

(2) Where, at the time of the seizure, the apparatus is—

(a) the property of a body corporate,

(b) the property of two or more partners, or

(c) the property of more than five persons,

the oath required by paragraph 10 to be taken by the claimant, and any other thing required by this Schedule or by rules of court to be done by the owner of the apparatus, may be done by a person falling within sub-paragraph (3) or by a person authorised to act on his behalf.

(3) The persons falling within this sub-paragraph are—

(a) where the owner is a body corporate, the secretary or some duly authorised officer of that body;

(b) where the owners are in partnership, any one or more of the owners;

(c) where there are more than five owners and they are not in partnership, any two or more of the owners acting on behalf of themselves and any of their co-owners who are not acting on their own behalf.

Saving for owner’s rights E+W+S+N.I.

17 Neither the imposition of a requirement by or under this Schedule to return apparatus to a person nor the return of apparatus to a person in accordance with such a requirement affects— E+W+S+N.I.

(a) the rights in relation to that apparatus of any other person; or

(b) the right of any other person to enforce his rights against the person to whom it is returned.

Section 192

SCHEDULE 8 E+W+S+N.I. Decisions not subject to appeal

Prosecutions and civil proceedings E+W+S+N.I.

1 A decision to institute, bring or carry on any criminal or civil proceedings. E+W+S+N.I.

2 A decision (other than one under section 119) to take preliminary steps for the purpose of enabling any such proceedings to be instituted. E+W+S+N.I.

This Act E+W+S+N.I.

3 A decision relating to the making or revision of a statement under section 38. E+W+S+N.I.

4 A decision required to be published in a notification under section 44(4). E+W+S+N.I.

5 A decision given effect to by an order under section 55. E+W+S+N.I.

6 A decision given effect to by regulations under section 66. E+W+S+N.I.

7 A decision given effect to by regulations under section 71. E+W+S+N.I.

8 A decision required to be published in a notification under section 108(4). E+W+S+N.I.

9 A decision given effect to by an order under section 122. E+W+S+N.I.

10 A decision relating to the making or revision of a statement under section 131. E+W+S+N.I.

11 A decision given effect to by an order under section 134(6). E+W+S+N.I.

12 A decision relating to the making or revision of a statement under section 145. E+W+S+N.I.

13 A decision relating to the publication of the United Kingdom Plan for Frequency Authorisation. E+W+S+N.I.

14 A decision in exercise of the functions conferred on OFCOM by section 152 as to— E+W+S+N.I.

(a) the services, records and advice to be provided, maintained or given by them;

(b) the research to be carried out or the arrangements made for carrying it out; or

(c) the making or terms of any grant.

15 A decision under section 155. E+W+S+N.I.

16 A decision under section 158. E+W+S+N.I.

17 A decision given effect to by regulations under section 159. E+W+S+N.I.

18 A decision given effect to by regulations under section 162. E+W+S+N.I.

19 A decision given effect to by an order under section 164. E+W+S+N.I.

20 A decision given effect to by regulations under section 168. E+W+S+N.I.

21 A decision given effect to by regulations under section 170 and any decision under any such regulations. E+W+S+N.I.

22 A decision to impose a penalty under section 175(1). E+W+S+N.I.

23 A decision relating to the making or revision of a statement under section 177. E+W+S+N.I.

24 A decision given effect to by regulations under paragraph 1 of Schedule 5. E+W+S+N.I.

25 A decision under any provision of Schedule 6. E+W+S+N.I.

26 A decision under any provision of Schedule 7. E+W+S+N.I.

Wireless Telegraphy Act 1949 E+W+S+N.I.

27 A decision given effect to by regulations under the proviso to section 1(1) of the Wireless Telegraphy Act 1949 (c. 54). E+W+S+N.I.

28 A decision given effect to by regulations under section 1D(3) of that Act. E+W+S+N.I.

29 A decision given effect to by regulations under section 3 of that Act. E+W+S+N.I.

30 A decision given effect to by regulations under section 10 of that Act. E+W+S+N.I.

31 A decision relating to the making or revision of a statement under section 13B of that Act. E+W+S+N.I.

32 A decision for the purposes of section 15 of that Act. E+W+S+N.I.

Wireless Telegraphy Act 1998 E+W+S+N.I.

33 A decision given effect to by regulations under section 1 of the Wireless Telegraphy Act 1998 (c. 6). E+W+S+N.I.

34 A decision given effect to by regulations under section 3 of that Act. E+W+S+N.I.

35 A decision given effect to by regulations under section 3A of that Act. E+W+S+N.I.

36 A decision relating to the recovery of a sum payable to OFCOM under section 4A of that Act. E+W+S+N.I.

Section 199

SCHEDULE 9 E+W+S+N.I. Arrangements about carrying on of C4C’s activities

Notification of requirement to submit proposals E+W+S+N.I.

1 (1) It shall be the duty of OFCOM to give a notification under this paragraph to C4C— E+W+S+N.I.

(a) as soon as practicable after the commencement of this Schedule, and

(b) as soon as practicable in the last twelve months preceding each date on which the replacement licence granted in accordance with section 231 would expire if not renewed.

(2) A notification under this paragraph is one requiring C4C to submit proposals to OFCOM in accordance with this Schedule for the relevant licence period.

(3) A notification under this paragraph must specify the period within which C4C must submit their proposals.

(4) The period specified under sub-paragraph (3) must be a period ending not less than three months after the day of the giving of the notification.

Submission of proposed arrangements E+W+S+N.I.

2 (1) This paragraph applies where C4C have received a notification under paragraph 1. E+W+S+N.I.

(2) C4C must, within the period set out in the notification, submit proposals to OFCOM for the arrangements under which they are proposing to secure, so far as reasonably practicable, that all significant risks that their other activities will have an adverse effect on the carrying out, during the relevant licence period, of their primary functions are—

(a) identified;

(b) evaluated; and

(c) properly managed.

(3) The proposals must include proposals for the arrangements that C4C consider appropriate for securing the transparency objectives during the relevant licence period.

(4) For the purposes of this Schedule the transparency objectives are—

(a) an appropriate financial and organisational separation between the activities of C4C that relate to the carrying out of their primary functions and their other activities; and

(b) an appropriate degree of transparency in financial and other reporting where resources are shared between separated activities or where there is some other financial or practical connection between otherwise separated activities.

(5) The matters to which the proposals submitted under this section may relate include, in particular, the procedures and other practices to be followed by C4C in the case of—

(a) the initiation and management of new ventures;

(b) the exercise of particular powers;

(c) the assessment of risks;

(d) the imposition of charges; and

(e) the keeping of records.

(6) The determination of what is appropriate for the purposes of sub-paragraphs (3) and (4) is not to be confined to a determination of what is appropriate for securing the matters mentioned in sub-paragraph (2).

(7) The arrangements proposed by C4C must contain provision for compliance with the arrangements to be checked regularly by a person appointed in accordance with that provision.

(8) That person must be a person other than the person for the time being holding an appointment for the purposes of paragraph 12(2) of Schedule 3 to the 1990 Act (C4C’s auditor).

Consideration and approval of proposals E+W+S+N.I.

3 (1) OFCOM must consider every proposal or revised proposal submitted to them by C4C under paragraph 2 or this paragraph and may do one of the following— E+W+S+N.I.

(a) approve the proposed arrangements;

(b) approve them with such modifications as they may notify to C4C;

(c) require C4C to submit revised proposals in accordance with directions given by OFCOM.

(2) Before—

(a) making modifications of proposed arrangements for the purpose of approving them, or

(b) requiring the submission of revised proposals,

OFCOM must consult C4C.

Duration of approval and modification of arrangements E+W+S+N.I.

4 (1) Arrangements approved under this Schedule are to remain in force (subject to the following provisions of this paragraph) throughout the licence period to which they relate. E+W+S+N.I.

(2) The arrangements for the time being approved under this Schedule for any licence period may be modified, by agreement between OFCOM and C4C, at any time during the licence period for which they apply.

(3) OFCOM may carry out a review of the arrangements for the time being approved under this Schedule.

(4) The reviews that may be carried out under this paragraph in any one licence period are confined to either—

(a) one review relating to all the arrangements; or

(b) two reviews carried out at separate times as follows—

(i) one (whether the first or second) relating to the arrangements for securing the transparency objectives; and

(ii) the other relating to other matters.

(5) On a review under this paragraph, OFCOM may require C4C to submit proposals for modifying the arrangements for the time being approved under this Schedule so far as they relate to the matters under review.

(6) Paragraph 3 applies where proposals are submitted to OFCOM under sub-paragraph (5) as it applies where they are submitted under paragraph 2.

Publication of approved arrangements E+W+S+N.I.

5 (1) OFCOM must publish all arrangements approved by them under this Schedule. E+W+S+N.I.

(2) The publication of anything under this paragraph must be in such manner as OFCOM consider appropriate for bringing it to the attention of members of the public.

Duty of C4C to act in accordance with the approved arrangements E+W+S+N.I.

6 It shall be the duty of C4C to act in accordance with the arrangements for the time being in force under this Schedule. E+W+S+N.I.

nforcement of duties E+W+S+N.I.

7 (1) This paragraph applies to— E+W+S+N.I.

(a) every duty of C4C under this Schedule to submit proposals to OFCOM; and

(b) the duty imposed on C4C by paragraph 6.

(2) Each of those duties shall be 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. 36); or

(c) for any other appropriate remedy or relief.

Penalty for contravention of the arrangements E+W+S+N.I.

8 (1) OFCOM may impose a penalty on C4C if C4C have contravened— E+W+S+N.I.

(a) a requirement of this Schedule to submit proposals to OFCOM;

(b) a requirement of arrangements for the time being approved under this Schedule.

(2) The amount of the penalty must not exceed 3 per cent. of C4C’s qualifying revenue for their last complete accounting period before the contravention.

(3) Before imposing a penalty on C4C under this paragraph OFCOM must give C4C a reasonable opportunity of making representations to OFCOM about their proposal to impose the penalty.

(4) Where OFCOM impose a penalty on C4C under this paragraph, they shall—

(a) notify C4C; and

(b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

(5) In the case of a continuing contravention—

(a) separate penalties may be imposed in respect of different periods during which the contravention continues;

(b) the notification of the penalty must specify the period in respect of which the penalty is imposed; and

(c) the reference in sub-paragraph (2) to the last complete accounting period before the contravention is a reference to the last complete accounting period before the end of the period in respect of which the penalty is imposed.

(6) A penalty imposed under this paragraph must be paid to OFCOM within the period fixed by them.

(7) Section 19(2) to (6) of the 1990 Act and Part 1 of Schedule 7 to that Act (calculation of qualifying revenue), with any necessary modifications, have effect in relation to C4C for the purposes of this paragraph as they have effect in relation to the holder of a Channel 3 licence for the purposes of Part 1 of that Act.

OFCOM’s duty to take account of need to support C4C’s primary functions E+W+S+N.I.

9 In exercising their powers under this Schedule OFCOM must have regard, in particular, to the need to secure, so far as practicable, that all significant risks that C4C’s other activities will have an adverse effect on the carrying out of their primary functions are— E+W+S+N.I.

(a) identified;

(b) evaluated; and

(c) properly managed.

Interpretation of Schedule E+W+S+N.I.

10 In this Schedule— E+W+S+N.I.

• “arrangements” means arrangements about the procedures and other practices to be followed by C4C and about other matters connected with the carrying on by them of any of their activities;

• “licence period” means—

  (a)

  the period for which the replacement licence is granted to C4C in accordance with section 231; or

  (b)

  any subsequent period for which it is renewed;

• “primary functions” is to be construed in accordance with section 199(2);

• “relevant licence period”—

  (a)

  in relation to the first notification to be given under paragraph 1, the licence period mentioned in paragraph (a) of the definition of that period; and

  (b)

  in relation to any other such notification, the first licence period to begin after the giving of the notification;

• “transparency objectives” is to be construed in accordance with paragraph 2(4).

Section 219

SCHEDULE 10 E+W+S+N.I. Licensing the public teletext service

Part 1 E+W+S+N.I. Applications for and award of licence

Notice of proposal to grant licence E+W+S+N.I.

1 (1) Where OFCOM propose to grant a licence to provide the public teletext service they must publish a notice stating that they are proposing to do so. E+W+S+N.I.

(2) The notice must—

(a) specify the digital capacity which is available for the public teletext service on television multiplex services;

(b) specify whether the licence will require the public teletext service to comprise a service to be provided for broadcasting in analogue form;

(c) invite applications for the licence;

(d) specify the closing date for applications;

(e) specify the fee payable on the making of an application for the licence; and

(f) specify the percentage of qualifying revenue for each accounting period of the licence holder which OFCOM have determined to be the percentage of that revenue that will have to be paid to them.

(3) Where the licence is to comprise an analogue teletext service the notice must specify—

(a) the television broadcasting service or services on whose frequency or frequencies the services are to be provided; and

(b) the extent and nature of the spare capacity which is to be allocated by the licence.

(4) For the purposes of sub-paragraph (2)(f)—

(a) different percentages may be determined and specified for different accounting periods; and

(b) the percentages that may be determined and specified for an accounting period include a nil percentage.

(5) A notice under this paragraph is to be published in such manner as OFCOM consider appropriate.

Guidance as to applications E+W+S+N.I.

2 (1) When publishing a notice under paragraph 1, OFCOM must publish with it some general guidance to applicants about what is likely to make proposals relating to the matters mentioned in paragraph 3(1)(c) to (e) acceptable to them. E+W+S+N.I.

(2) Guidance published under this paragraph must include examples.

Applications for the licence E+W+S+N.I.

3 (1) An application made in response to a notice under paragraph 1 must be accompanied by— E+W+S+N.I.

(a) the fee specified in the notice as payable on the making of the application;

(b) a technical plan complying with sub-paragraph (2);

(c) the applicant’s proposals for providing, or securing the provision of, a service that fulfils the public service remit for the public teletext service;

(d) the applicant’s proposals for including news items in the service and for securing that the news items included in the service are up to date and regularly revised;

(e) the applicant’s proposals for the inclusion in the service of material that is of particular interest to persons living in different parts of the United Kingdom;

(f) the applicant’s cash bid in respect of the licence; and

(g) such information as OFCOM may reasonably require about the matters mentioned in sub-paragraph (3).

(2) The technical plan must indicate—

(a) the nature of the public teletext service which the applicant is proposing to provide; and

(b) the nature of any services the provision of which, in accordance with proposals made by another person, would be secured by the applicant in accordance with provision made under section 220.

(3) The matters about which OFCOM may require information under sub-paragraph (1)(g) are—

(a) the applicant’s present financial position; and

(b) his projected financial position during the period for which the licence would be in force.

(4) At any time after receiving an application under this Schedule and before disposing of it, OFCOM may require the applicant to furnish additional information about any one or more of the following—

(a) the matters that must be indicated in the technical plan;

(b) the applicant’s proposals with respect to the matters mentioned in sub-paragraph (1)(c) to (e); and

(c) the matters mentioned in sub-paragraph (3).

(5) Any information to be furnished to OFCOM under this paragraph must be in such form, and must be verified, in such manner as they may require.

Notice inviting public representations E+W+S+N.I.

4 (1) As soon as reasonably practicable after the date specified in a notice under paragraph 1 as the closing date for applications, OFCOM must publish— E+W+S+N.I.

(a) the name of every person who has made an application to them in response to their notice;

(b) particulars of the technical plan submitted by each applicant;

(c) the proposals submitted by each applicant with respect to the matters mentioned in paragraph 3(1)(c) to (e);

(d) such other information connected with each application as OFCOM consider appropriate; and

(e) a notice under sub-paragraph (2).

(2) The notice required by this paragraph is one that—

(a) invites representations to be made to OFCOM with respect to the other matters published under this paragraph; and

(b) specifies the manner in which, and the time by which, such representations have to be made.

(3) Publication of any information or notice under this paragraph is to be in such manner as OFCOM consider appropriate.

Determination of applications E+W+S+N.I.

5 (1) This paragraph applies where, in response to a notice under paragraph 1, a person has made an application for a licence to provide the public teletext service. E+W+S+N.I.

(2) OFCOM must not proceed to consider whether to award the applicant the licence in accordance with the following provisions of this paragraph unless it appears to them—

(a) that the applicant’s technical plan, in so far as it involves the use of an electronic communications network, contains proposals that are acceptable to them;

(b) that the applicant’s proposals with respect to the matters mentioned in paragraph 3(1)(c) to (e) are acceptable to them; and

(c) that the services proposed to be provided under the licence would be capable of being maintained throughout the period for which the licence would be in force.

(3) In determining whether it appears to them as mentioned in sub-paragraph (2), OFCOM must take account of any representations made to them in response to the invitation published under paragraph 4.

(4) Sections 17 and 17A of the 1990 Act (award of licence to highest cash bidder and financial conditions) apply in relation to a licence to provide the public teletext service as they apply in relation to a Channel 3 licence, but with the modifications set out in sub-paragraphs (5) and (6).

(5) In the application of section 17 of the 1990 Act in accordance with sub-paragraph (4)—

(a) any reference to an applicant is to be construed as a reference to an applicant in whose case it appears to OFCOM as mentioned in sub-paragraph (2);

(b) the provisions of subsection (4) down to the end of paragraph (b) are to be omitted;

(c) in subsection (7)(a), the reference to section 19(1) of the 1990 Act is to be construed as a reference to paragraph 7 of this Schedule;

(d) subsection (12) shall have effect with the substitution of the following paragraph for paragraph (b)—

“(b) the name of every other applicant in whose case it appeared to OFCOM as mentioned in paragraph 5(2) of Schedule 10 to the Communications Act 2003;”

(e) in subsection (14), the references to a notice under section 15(1) of the 1990 Act and a notice under Part 1 of that Act shall each have effect as a reference to a notice under paragraph 1 of this Schedule.

(6) In the application of section 17A of the 1990 Act in accordance with sub-paragraph (4)—

(a) the reference in subsection (1)(b) to section 15(3)(g) of the 1990 Act shall have effect as a reference to paragraph 3(1)(g) of this Schedule; and

(b) the reference in subsection (3) to a notice under section 15(1) of the 1990 Act shall have effect as a reference to a notice under paragraph 1 of this Schedule.

Revocation of award E+W+S+N.I.

6 (1) This paragraph applies if, at any time after a licence to provide the public teletext service has been awarded to a person, but before it has come into force— E+W+S+N.I.

(a) that person indicates to OFCOM that he does not intend to provide, or secure the provision of, the licensed service; or

(b) OFCOM have, for any other reason, reasonable grounds for believing that the licensed service will not be provided once the licence has come into force.

(2) OFCOM must revoke the licence by serving a notice of revocation on the person to whom it was awarded.

(3) OFCOM may then award the licence again in accordance with section 17 of the 1990 Act (as applied by paragraph 5 of this Schedule) as if the person whose licence is revoked had not made an application.

(4) Sub-paragraph (3) has effect subject to subsection (14) of section 17 of the 1990 Act (as so applied) (re-publication of invitation to make applications) as if the reference in that subsection to the following provisions of Part 1 of that Act included a reference to that sub-paragraph.

(5) Before acting under sub-paragraphs (2) and (3) in a case falling within sub-paragraph (1)(b), OFCOM must serve a notice on the person awarded the licence stating their grounds for believing that the licensed service will not be provided once the licence has come into force.

(6) Where such a notice is required to be given, OFCOM must not revoke the licence unless they have given the person to whom it was awarded a reasonable opportunity of making representations to them about the matters by reference to which they are proposing to revoke it.

(7) In the case of a licence to provide a service that must comprise both—

(a) an analogue teletext service, and

(b) a teletext service provided in digital form,

the references in sub-paragraphs (1) and (5) to the licensed service are references to one or both of those services.

Part 2 E+W+S+N.I. Conditions and enforcement of licence

Payments to be made in respect of the public teletext service E+W+S+N.I.

7 (1) A licence to provide the public teletext service must include conditions requiring the licence holder to pay the following amounts to OFCOM (in addition to any fees required to be so paid by virtue of section 4(1)(b) of the 1990 Act)— E+W+S+N.I.

(a) a specified amount in respect of the first complete calendar year falling within the licence period;

(b) in respect of each subsequent year falling wholly or partly within the licence period, that amount increased by the appropriate percentage;

(c) in respect of each accounting period of his falling within the licence period, an amount representing a specified percentage of qualifying revenue for that accounting period.

(2) The amount specified for the purposes of sub-paragraph (1)(a) must be—

(a) in the case of the replacement licence under section 221, the amount proposed in accordance with subsection (5)(a) of that section;

(b) in the case of a licence renewed under section 222, the amount determined under section 223(1)(a); and

(c) in any other case, the amount specified in the licence holder’s cash bid.

(3) The percentage specified for the purposes of sub-paragraph (1)(c) in respect of an accounting period must be—

(a) in the case of the replacement licence under section 221, nil;

(b) in the case of a licence renewed under section 222, the percentage determined under section 223(1)(b); and

(c) in any other case, the percentage determined and specified for the purposes of paragraph 1(2)(f) of this Schedule.

(4) A licence to provide the public teletext service may also include conditions—

(a) enabling OFCOM to estimate before the beginning of an accounting period the amount due for that period by virtue of any condition imposed under this paragraph; and

(b) requiring the licence holder to pay the estimated amount by monthly instalments throughout that period.

(5) Such a licence may, in particular, include conditions—

(a) authorising OFCOM to revise an estimate on one or more occasions;

(b) requiring them to alter the amounts of the instalments payable by the licence holder to take account of the revised estimate;

(c) providing for the adjustment of an overpayment or underpayment.

(6) This paragraph has effect subject to sections 225 and 226 and to the requirement in section 221(5)(b).

(7) In this paragraph “the appropriate percentage” has the same meaning as in section 19 of the 1990 Act.

Corrections and statements of findings by the public teletext provider E+W+S+N.I.

8 (1) Section 40 of the 1990 Act (power to direct correction or a statement of findings) shall have effect in relation to the public teletext service as it has effect in relation to a Channel 3 service but as if the references in subsection (4) to a programme were references to an item. E+W+S+N.I.

(2) OFCOM’s powers by virtue of this paragraph in relation to any matter are not affected by any prior exercise by them in relation to that matter of their powers under either or both of paragraphs 9 and 10.

Enforcement of the licence for the public teletext service E+W+S+N.I.

9 (1) If OFCOM are satisfied that the holder of the licence to provide the public teletext service has— E+W+S+N.I.

(a) contravened a condition of the licence, or

(b) failed to comply with a direction given to him by OFCOM under or by virtue of a provision of the 1990 Act, the 1996 Act or Part 3 of this Act,

they may serve on him a notice requiring him to pay a specified financial penalty to them.

(2) The maximum amount which a person may be required to pay by way of a penalty under this paragraph is 5 per cent. of the qualifying revenue for his last complete accounting period.

(3) Where an accounting period by reference to which the maximum amount of a penalty falls to be calculated has not ended when the penalty is imposed, the amount taken into account in respect of that period is to be the amount estimated by OFCOM.

(4) OFCOM are not to serve a notice under this paragraph on any person unless they have given him a reasonable opportunity of making representations to them about the matters complained of.

(5) A notice requiring a person to pay a penalty under this paragraph must specify the period within which it is to be paid.

Power to shorten licence period E+W+S+N.I.

10 (1) If OFCOM are satisfied that the holder of the licence to provide the public teletext service has— E+W+S+N.I.

(a) contravened a condition of the licence, or

(b) failed to comply with a direction given to him by OFCOM under or by virtue of any provision of the 1990 Act, the 1996 Act or Part 3 of this Act,

they may serve on him a notice reducing the period for which the licence is to be in force by a specified period not exceeding two years.

(2) OFCOM are not to serve a notice under this paragraph on any person unless they have given him a reasonable opportunity of making representations to them about the matters in respect of which it is served.

(3) Where a licence is due to expire on a particular date by virtue of a notice served on a person under this paragraph, OFCOM may, on the application of that person, revoke that notice by a further notice served on him at any time before that date.

(4) OFCOM may exercise their power under sub-paragraph (3) only if they are satisfied that, since the date of the earlier notice, the conduct of the licence holder in relation to the operation of the licensed service has been such as to justify the revocation of that notice.

Revocation for contravention of condition or direction E+W+S+N.I.

11 Section 42 of the 1990 Act (revocation for contravention) shall apply in relation to the licence to provide the public teletext service as it applies in relation to a licence to provide a Channel 3 service. E+W+S+N.I.

Penalty on revocation E+W+S+N.I.

12 (1) Where OFCOM revoke the licence to provide the public teletext service (whether under paragraph 6 or a provision of the 1990 Act or 1996 Act), they must serve on the licence holder a notice requiring him to pay a specified financial penalty to them. E+W+S+N.I.

(2) The maximum amount which a person may be required to pay by way of a penalty under this paragraph is the maximum given by sub-paragraphs (3) and (4).

(3) In a case where the licence is revoked under paragraph 6 or the penalty is imposed before the end of the first complete accounting period of the licence holder to begin in the licence period, the maximum penalty is whichever is the greater of—

(a) £500,000; and

(b) 7 per cent. of the amount which OFCOM estimate would have been the qualifying revenue for the first complete accounting period of the licence holder falling within the period for which the licence would have been in force.

(4) In any other case, the maximum penalty is whichever is the greater of—

(a) £500,000; and

(b) 7 per cent. of the qualifying revenue for the last complete accounting period of the licence holder falling within the licence period.

(5) A notice requiring a person to pay a penalty under this paragraph must specify the period within which it is to be paid.

(6) A financial penalty that must be paid by virtue of this paragraph by a body of any description shall also be recoverable—

(a) as a debt due to OFCOM from the person who controls the body; or

(b) if two or more persons control it, as a debt due jointly and severally from them all.

(7) Sub-paragraph (6) is in addition to the provision for the recovery of penalties contained in section 346, but the amount recovered in respect of any one penalty must not exceed the full amount of that penalty.

(8) References in this paragraph to a person controlling a body are references to his controlling it within the meaning of Schedule 2 to the 1990 Act.

Power to modify penalties in paragraph 12 E+W+S+N.I.

13 (1) The Secretary of State may by order substitute a different sum for the sum for the time being specified in paragraph 12(3)(a) or (4)(a). E+W+S+N.I.

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

Part 3 E+W+S+N.I. Interpretation of Schedule

14 In this Schedule “licence period”, in relation to a licence, means the period for which the licence is in force. E+W+S+N.I.

15 (1) For the purposes of this Schedule the qualifying revenue for an accounting period of the holder of a licence to provide the public teletext service consists of the aggregate of all the following amounts— E+W+S+N.I.

(a) the amounts received or to be received by a person mentioned in sub-paragraph (2) in consideration of the inclusion in the licensed service in that period of advertisements or other items; and

(b) the amounts received or to be received by such a person in respect of the provision of the service from—

(i) a person authorised by the licence holder to provide the whole or a part of the licensed service; or

(ii) a person who is a connected person in relation to a person so authorised.

(2) Those persons are—

(a) the licence holder; or

(b) a person who is a connected person in relation to the licence holder without being a person authorised by the licence holder to provide the whole or a part of the licensed service.

(3) Part 1 of Schedule 7 to the 1990 Act applies for determining qualifying revenue for the purposes of this Schedule as it applies for the purposes of Part 1 of that Act.

(4) Where, in the case of the licence to provide the public teletext service—

(a) the first complete accounting period of the licence holder to fall within the licence period does not begin at the same time as the licence period, or

(b) the last complete accounting period of his to fall within the licence period does not end at the same time as the licence period,

references in this Schedule to an accounting period of the licence holder include references to such part of the accounting period preceding the first complete accounting period, or (as the case may be) following the last complete accounting period, as falls within the licence period.

(5) In this paragraph “connected person” has the same meaning as in Schedule 2 to the 1990 Act.

Sections 291 and 294

SCHEDULE 11 E+W+S+N.I. Approval, imposition and modification of networking arrangements

Application of Schedule E+W+S+N.I.

1 (1) This Schedule applies where OFCOM’s approval of networking arrangements entered into by the holders of regional Channel 3 licences is required— E+W+S+N.I.

(a) for the purposes of conditions included in regional Channel 3 licences in accordance with section 291; or

(b) in order for networking arrangements made by OFCOM to cease to have effect in accordance with section 292.

(2) This Schedule also has effect as respects—

(a) the imposition by OFCOM under section 292 of networking arrangements;

(b) the modification of such arrangements following a review under section 293; and

(c) the making of proposals for modifications of networking arrangements following such a review.

Approval required for modifications E+W+S+N.I.

2 (1) Where networking arrangements are approved by OFCOM for purposes mentioned in paragraph 1(1), those arrangements are not to be modified unless OFCOM have approved the modifications in accordance with this Schedule. E+W+S+N.I.

(2) This paragraph does not apply to modifications proposed by OFCOM under section 293.

Procedure for giving approval E+W+S+N.I.

3 (1) This paragraph applies where arrangements or modifications are submitted to OFCOM for their approval. E+W+S+N.I.

(2) OFCOM must publish a description of the arrangements or modifications that have been submitted.

(3) The publication must be in such manner as OFCOM consider appropriate for bringing the matters published to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the arrangements or modifications.

(4) After allowing a reasonable time after the publication for the making of representations, OFCOM must consider the arrangements or modifications and decide whether or not to approve them.

Decision of OFCOM whether or not to approve arrangements or modifications E+W+S+N.I.

4 (1) The decision made by OFCOM under paragraph 3(4) has to be one of the following— E+W+S+N.I.

(a) a decision to approve the arrangements or modifications unconditionally;

(b) a decision to give a conditional approval to the arrangements or modifications;

(c) a decision to refuse approval.

(2) A conditional approval is one that has effect only if effect is given, in relation to the proposed arrangements or modifications, to changes proposed by OFCOM.

(3) Before deciding to give a conditional approval, OFCOM must consult every holder of a regional Channel 3 licence about the changes they are proposing.

(4) When OFCOM have made their decision, they must prepare a report setting out—

(a) their decision; and

(b) their reasons for that decision.

(5) OFCOM must publish the report and send a copy of it to—

(a) the Office of Fair Trading; and

(b) every person to whom the relevant arrangements will apply, or do apply.

(6) The relevant arrangements are—

(a) the arrangements for which approval has been sought; or

(b) the arrangements which are the subject of the modifications for which approval has been sought.

Notification of decisions on imposition of arrangements E+W+S+N.I.

5 (1) Where OFCOM impose arrangements they must prepare and publish a report setting out details of the imposed arrangements. E+W+S+N.I.

(2) Where OFCOM carry out a review under section 293, they must prepare and publish a report setting out—

(a) their conclusions on the review;

(b) their reasons for those conclusions; and

(c) the modifications (if any) that they are proposing, or intend to make, following the review.

(3) OFCOM must send a copy of a report prepared under this paragraph to—

(a) the Office of Fair Trading; and

(b) every person to whom the relevant arrangements will apply or do apply.

(4) The relevant arrangements are—

(a) the arrangements which are imposed; or

(b) the arrangements which are the subject of the modifications proposed by OFCOM or to be made by them.

Competition tests applying to OFCOM’s decisions E+W+S+N.I.

6 (1) OFCOM must not— E+W+S+N.I.

(a) approve arrangements or modifications,

(b) impose arrangements or modify imposed arrangements, or

(c) propose modifications following a review under section 293,

unless they are satisfied that the arrangements, or the arrangements as proposed to be modified, satisfy the first or second competition test.

(2) Before making a decision about whether a competition test is satisfied OFCOM must consult the Office of Fair Trading.

(3) Arrangements satisfy the first competition test if they do not have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom.

(4) Arrangements satisfy the second competition test if—

(a) they do have such an object or effect; but

(b) they would satisfy the criteria set out in section 9 of the Competition Act 1998 (c. 41) (agreements contributing to improving the production or distribution of goods or to promoting technical or economic progress).

(5) For the purposes of the second competition test, arrangements imposed by OFCOM and modifications of such arrangements are to be treated as if they were given effect to by an agreement between undertakings.

(6) In determining whether arrangements or modified arrangements would satisfy either of the competition tests, OFCOM must act with a view to securing that there is no inconsistency between—

(a) the principles they apply and the decision they reach; and

(b) any principles or decisions referred to in sub-paragraph (7).

(7) Those principles and decisions are—

(a) the principles laid down by the Treaty establishing the European Community and the European Court, and any decisions of that Court, that are relevant to the construction of Article 81 of that Treaty; and

(b) any decisions under Part 1 of the Competition Act 1998, and any decisions of a court in the United Kingdom, that are relevant to the construction of a provision of that Act that is equivalent to the provisions of this Schedule imposing the competition tests.

(8) In the case of a conditional approval, the requirements of this paragraph have to be satisfied in relation to the arrangements or modified arrangements as they will be after giving effect to the changes proposed by OFCOM.

(9) In this paragraph, the “European Court” includes a court attached to the European Court.

Other matters to be taken into account E+W+S+N.I.

7 (1) OFCOM must not— E+W+S+N.I.

(a) approve arrangements or modifications,

(b) impose arrangements or modify imposed arrangements, or

(c) propose modifications following a review under section 293,

unless they consider that the arrangements, or the arrangements as proposed to be modified, are satisfactory.

(2) OFCOM’s consideration under sub-paragraph (1) must include consideration of the following two factors.

(3) The first factor is whether the arrangements, or the arrangements as proposed to be modified, represent a satisfactory means of achieving the purpose set out in section 290(4)(c).

(4) The second factor is the likely effect of the arrangements, or the arrangements as modified, on the ability of the persons who will be or are the holders of regional Channel 3 licences, or of any of them, to maintain the quality and range of—

(a) regional programmes included in regional Channel 3 services; and

(b) the other programmes included in such services which contribute to the regional character of the services.

(5) In this paragraph “regional programme”, in relation to a regional Channel 3 service, means a programme (including a news programme) which is of particular interest—

(a) to persons living within the area for which the service is provided;

(b) to persons living within a part of that area; or

(c) to particular communities living within that area.

Duty to refuse approval in certain cases E+W+S+N.I.

8 (1) This paragraph applies to a decision by OFCOM— E+W+S+N.I.

(a) to approve arrangements or modifications;

(b) to impose arrangements or to modify imposed arrangements; or

(c) to propose modifications following a review under section 293.

(2) OFCOM must not make that decision if it appears to them that the arrangements, or the arrangements as proposed to be modified, would be likely to be prejudicial to the ability of holders of regional Channel 3 licences, or of any of them, to comply with—

(a) their public service remits;

(b) conditions imposed on them under section 286;

(c) conditions imposed on them under section 287; or

(d) conditions imposed on them under section 352.

Appeals against decisions relating to competition test E+W+S+N.I.

9 (1) A person holding a regional Channel 3 licence may appeal to the Tribunal against the following decisions by OFCOM— E+W+S+N.I.

(a) a decision on how to dispose of an application for the approval of arrangements or modifications;

(b) a decision to impose arrangements or to modify imposed arrangements; or

(c) a decision to propose modifications following a review under section 293.

(2) An appeal can be made only by sending the Tribunal a notice of appeal within the period specified, in relation to the decision appealed against, in Tribunal rules.

(3) The notice of appeal must set out the grounds of appeal.

(4) The only grounds on which an appeal may be brought are—

(a) that OFCOM has wrongly decided that a competition test is or is not satisfied in relation to arrangements or modifications submitted to them for approval;

(b) that a competition test is not satisfied in the case of arrangements proposed by OFCOM;

(c) that provisions contained in arrangements proposed by OFCOM for satisfying a competition test are not required for that purpose;

(d) that the requirement to satisfy a competition test should be discharged in a different manner from that in which it would be satisfied in accordance with arrangements proposed by OFCOM.

(5) In sub-paragraph (4) “arrangements proposed by OFCOM” means—

(a) arrangements or modified arrangements as they will have effect after giving effect to changes proposed by OFCOM in giving a conditional approval;

(b) arrangements imposed by them;

(c) imposed arrangements as modified by them;

(d) arrangements as modified by proposals made by OFCOM following a review under section 293.

(6) The holder of a regional Channel 3 licence is not required by the conditions of his licence to take steps for giving effect to a decision of OFCOM at any time when an appeal under this Schedule against that decision is pending.

Decisions on an appeal E+W+S+N.I.

10 (1) Appeals to the Tribunal under paragraph 9 are to be disposed of in accordance with this paragraph. E+W+S+N.I.

(2) The Tribunal shall decide the appeal on the merits and by reference to the grounds of appeal set out in the notice of appeal.

(3) The Tribunal shall decide what (if any) is the appropriate decision for OFCOM to have made in relation to the matters to which those grounds relate.

(4) The Tribunal shall then either—

(a) confirm OFCOM’s decision; or

(b) remit the matter to OFCOM with such directions (if any) as the Tribunal considers appropriate for giving effect to its decision.

(5) The Tribunal must not direct OFCOM to take any action which they would not otherwise have had power to take in relation to the matter under appeal.

(6) It shall be the duty of OFCOM to comply with every direction given to them under sub-paragraph (4).

(7) In its application to a decision of the Tribunal under this section, paragraph 1(2)(b) of Schedule 4 to the Enterprise Act 2002 (c. 40) (exclusion of commercial information from documents recording Tribunal decisions) is to have effect as if for the reference to the undertaking to which commercial information relates there were substituted a reference to the person to whom such information relates.

Appeals against decisions of the Tribunal E+W+S+N.I.

11 (1) A decision of the Tribunal on an appeal under paragraph 9 may itself be appealed. E+W+S+N.I.

(2) An appeal under this section—

(a) lies to the Court of Appeal or to the Court of Session; and

(b) must relate only to a point of law arising from the decision of the Tribunal.

(3) An appeal under this section may be brought by a party to the proceedings before the Tribunal.

(4) An appeal under this section requires the permission of the Tribunal or of the court to which it is to be made.

(5) In this section references to a decision of the Tribunal include references to a direction given by it under paragraph 10(4).

Information for OFCOM E+W+S+N.I.

12 (1) OFCOM may by notice require a person— E+W+S+N.I.

(a) to produce to them such documents specified or described in the notice, or

(b) to furnish them with such other information so specified or described,

as they consider necessary in order to determine for the purposes of section 293 or this Schedule whether the competition tests are satisfied.

(2) A requirement imposed by a notice under this paragraph has to be complied with by producing the document, or by furnishing the required information, at the time and place specified in the notice.

(3) If the requirement is one for the furnishing of information otherwise than by the production of a document, the information must be furnished in the manner specified in the notice.

(4) The only documents that a person is required to produce by a notice under this paragraph are those that are in his custody or under his control—

(a) at the time of the notice; or

(b) at a time between that time and the time when the notice must be complied with.

Enforcement of information provisions E+W+S+N.I.

13 (1) The court may, on an application by OFCOM, enquire into whether any person (“the defaulter”) has refused or otherwise failed, without reasonable excuse, to comply with a requirement contained in a notice under paragraph 12. E+W+S+N.I.

(2) An application under sub-paragraph (1) shall include details of the possible failure which OFCOM consider has occurred.

(3) In enquiring into a case under sub-paragraph (1), the court shall hear—

(a) any witness who may be produced against or on behalf of the defaulter; and

(b) any statement which may be offered in defence.

(4) Sub-paragraphs (5) and (6) apply where the court is satisfied, after hearing any witnesses and statements as mentioned in sub-paragraph (3), that the defaulter has refused or failed, without reasonable excuse, to comply with the requirement contained in the notice under paragraph 12.

(5) The court may punish the defaulter as it would have been able to punish him had he been guilty of contempt of court.

(6) Where the defaulter is a body corporate, the power of the court to punish the defaulter includes power to punish a director or officer of the body corporate.

(7) Where the defaulter is a partnership constituted under the law of Scotland, the power of the court to punish the defaulter includes power to punish a member of the partnership.

(8) A person is guilty of an offence if he intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under paragraph 12.

(9) A person is guilty of an offence if—

(a) he supplies information to OFCOM in purported compliance with a notice given to him under paragraph 12;

(b) the information is false or misleading in a material respect; and

(c) he knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.

(10) A person is guilty of an offence if—

(a) he supplies information to another person knowing that the information is to be used for complying with a notice under paragraph 12;

(b) the information is false or misleading in a material respect; and

(c) he knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.

(11) A person guilty of an offence under this paragraph shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum;

(b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

(12) In this paragraph “the court” means—

(a) in relation to England and Wales, the High Court;

(b) in relation to Scotland, the Court of Session; and

(c) in relation to Northern Ireland, the High Court or a judge of the High Court.

Confidentiality and defamation E+W+S+N.I.

14 (1) When publishing a report prepared under paragraph 4 or 5, OFCOM must have regard to the need to exclude from the publication, so far as practicable, the matters which are confidential in accordance with sub-paragraphs (2) and (3). E+W+S+N.I.

(2) A matter is confidential under this sub-paragraph if—

(a) it relates specifically to the affairs of a particular body; and

(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

(3) A matter is confidential under this sub-paragraph if—

(a) it relates to the private affairs of an individual; and

(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

(4) For the purposes of the law of defamation absolute privilege attaches to every report prepared under paragraph 4 or 5.

Interpretation of Schedule E+W+S+N.I.

15 In this Schedule— E+W+S+N.I.

• “competition test” is to be construed in accordance with paragraph 6;

• “the Tribunal” means the Competition Appeal Tribunal; and

• “Tribunal rules” means rules made under section 15 of the Enterprise Act 2002 (c. 40).

Section 338

SCHEDULE 12 E+W+S+N.I. Corresponding obligations of the BBC and Welsh Authority

Part 1 E+W+S+N.I. The BBC

Quotas for independent productions E+W+S+N.I.

1 (1) It shall be the duty of the BBC to secure that, in each year, not less than 25 per cent. of the total amount of time allocated to the broadcasting of qualifying programmes included in the television broadcasting services provided by the BBC is allocated to the broadcasting of a range and diversity of independent productions. E+W+S+N.I.

(2) In this paragraph—

(a) a reference to qualifying programmes is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be qualifying programmes for the purposes of this paragraph;

(b) a reference to independent productions is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be independent productions for the purposes of this paragraph; and

(c) a reference to a range of independent productions is a reference to a range of such productions in terms of cost of acquisition as well as in terms of the types of programme involved.

(3) The Secretary of State may by order amend sub-paragraph (1) by substituting a different percentage for the percentage for the time being specified in that sub-paragraph.

(4) The Secretary of State may also by order provide for the BBC to have the duty set out in sub-paragraph (5), either instead of or as well as the one set out in sub-paragraph (1).

(5) That duty is a duty to secure that, in each year, not less than the percentage specified in the order of the programming budget for that year for the television broadcasting services provided by the BBC is applied in the acquisition of independent productions.

(6) The power to make an order under sub-paragraph (4) includes power to provide that the BBC are again to be subject to a duty to which they have previously ceased to be subject by virtue of such an order, in addition to or instead of the duty to which they are subject (apart from the exercise of that power) by virtue of this paragraph.

(7) The Secretary of State is not to make an order for the BBC to be or to cease to be subject to the duty mentioned in sub-paragraph (1) or (5) unless—

(a) OFCOM have made a recommendation to him that the BBC should be subject to that duty, or should cease to be subject to it; and

(b) the order gives effect to that recommendation.

(8) Where television broadcasting services are designated by or under the BBC Charter and Agreement—

(a) as services that must be treated separately for the purposes of the duty imposed by sub-paragraph (1) or a duty imposed under sub-paragraph (4), or

(b) as services that must be included in a group of services that must be taken together for the purposes of such a duty,

that duty is to have effect in accordance with sub-paragraph (9).

(9) A duty having effect in accordance with this sub-paragraph is to have effect as if (instead of applying to all the television broadcasting services provided by the BBC, taken together) it applied separately—

(a) in relation to each service that is required to be treated separately; and

(b) in relation to each group of services that are required to be taken together.

(10) The BBC must comply with directions given to them by OFCOM for the purpose of—

(a) carrying forward to one or more subsequent years determined in accordance with the direction any shortfall for any year in their compliance with the duties imposed by virtue of sub-paragraph (1) or (4); and

(b) thereby increasing the percentage applicable for the purposes of those duties to the subsequent year or years.

(11) For the purposes of this paragraph—

(a) the amount of the programming budget for a year, and

(b) the means of determining the amount of that budget that is applied for any purpose,

are to be computed in accordance with such provision as may be set out in an order made by the Secretary of State, or as may be determined by OFCOM in accordance with such an order.

(12) Before making an order under this paragraph the Secretary of State must consult OFCOM and the BBC.

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

(14) In this paragraph—

• “acquisition”, in relation to a programme, includes commissioning and acquiring a right to include it in a service or to have it broadcast; and

• “programming budget” means the budget for the production and acquisition of qualifying programmes.

Duty to publicise complaints procedures etc. E+W+S+N.I.

2 (1) It shall be the duty of the BBC to make arrangements for securing that the matters mentioned in sub-paragraph (2) are brought to the attention of the public (whether by means of broadcasts or otherwise). E+W+S+N.I.

(2) Those matters are—

(a) OFCOM’s functions under Part 5 of the 1996 Act in relation to services provided by the BBC; and

(b) any procedures established by OFCOM or the BBC for the handling and resolution of complaints about the observance by the BBC of standards set under section 319.

Part 2 E+W+S+N.I. The Welsh Authority

Public service remits of the Welsh Authority services E+W+S+N.I.

3 (1) It shall be the duty of the Welsh Authority to secure that the public service remits for each of their public television services is fulfilled. E+W+S+N.I.

(2) The public service remit for S4C is the provision of a broad range of high quality and diverse programming in a service in which—

(a) a substantial proportion of the programmes consists of programmes in Welsh;

(b) the programmes broadcast for viewing between 6:30 PM and 10:00 PM on every day of the week consist mainly of programmes in Welsh; and

(c) the programmes that are not in Welsh are normally programmes which are being, have been or are to be broadcast on Channel 4.

(3) The public service remit for S4C Digital is the provision of a broad range of high quality and diverse programming in a service in which a substantial proportion of the programmes consists of programmes in Welsh.

(4) The public service remit for a television programme service provided by the Welsh Authority with the approval of the Secretary of State under section 205 is the remit set out in the order approving the provision of the service.

(5) The Secretary of State may by order modify sub-paragraphs (2) and (3).

(6) Before making an order specifying or modifying the public service remit for any of the Welsh Authority’s public television services, the Secretary of State must consult—

(a) the Authority; and

(b) where the order relates to the inclusion in any service of programmes that are not in Welsh, C4C.

(7) An order modifying the public service remit for S4C or S4C Digital must not contain provision inconsistent with a requirement that each service must—

(a) represent a public service for the dissemination of information, education and entertainment; and

(b) include programmes a substantial proportion of which consists of programmes in Welsh.

(8) No order is to be made containing provision authorised by sub-paragraph (5) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Statements of programme policy E+W+S+N.I.

4 (1) It shall be the duty of the Welsh Authority— E+W+S+N.I.

(a) as soon as practicable after the coming into force of this paragraph, and subsequently at annual intervals, to prepare a statement of programme policy; and

(b) to monitor their own performance in the carrying out of the proposals contained in statements made under this paragraph.

(2) Every statement of programme policy prepared under this paragraph must set out the Welsh Authority’s proposals for securing that, during the following year—

(a) the public service remit for each of their public television services to be provided during that year will be fulfilled; and

(b) the Welsh Authority’s duties under the provisions of this Schedule will be performed.

(3) Every such statement must contain a report on the performance of the Welsh Authority in the carrying out during the period since the previous statement of the proposals contained in that previous statement.

(4) When preparing such a statement, the Welsh Authority must consider—

(a) any guidance by OFCOM that is in force for the purposes of section 266; and

(b) any reports previously published by OFCOM under section 264 or 358.

(5) Every such statement must be published by the Welsh Authority as soon as practicable after its preparation is complete.

(6) OFCOM may direct that any statement of policy which—

(a) was made by the Welsh Authority before the coming into force of this paragraph, and

(b) is specified in the direction,

is to be treated for the purposes of this Act as if it were a statement made in relation to such period as may be so specified in pursuance of this paragraph.

(7) A direction under sub-paragraph (6) cannot contain provision the effect of which is to postpone the time at which the Welsh Authority would otherwise be required to make its first statement of programme policy.

Must-offer obligations in relation to networks and satellite services E+W+S+N.I.

5 (1) It shall be the duty of the Welsh Authority to ensure that each of their public digital services is at all times offered as available (subject to the need to agree terms)— E+W+S+N.I.

(a) to be broadcast or distributed by means of every appropriate network; and

(b) to be broadcast by means of every satellite television service that is available for reception by members of the public in Wales.

(2) It shall be the duty of the Welsh Authority to do their best to secure that arrangements are entered into, and kept in force, that ensure—

(a) that each of their public digital services is broadcast or distributed on appropriate networks; and

(b) that the broadcasting and distribution of each of their public digital services, in accordance with those arrangements, result in the service being available for reception, by means of appropriate networks, by as many members of its intended audience as practicable.

(3) It shall be the duty of the Welsh Authority to do their best to secure that arrangements are entered into, and kept in force, that ensure—

(a) that each of their public digital services is broadcast by means of satellite television services that are broadcast so as to be available for reception by members of the public in Wales; and

(b) that the broadcasting, in accordance with those arrangements, of each of the Authority’s public digital services by means of satellite television services results in its being available for reception in an intelligible form and by means of those services by as many members of its intended audience as practicable.

(4) The Welsh Authority must secure that the arrangements entered into and kept in force for the purposes of sub-paragraphs (2) and (3) prohibit the imposition, for or in connection with the provision of an appropriate network or a satellite television service, of any charge that is attributable (whether directly or indirectly) to the conferring of an entitlement to receive each of the Authority’s public digital services in an intelligible form by means of that network or service.

(5) OFCOM may, by a direction to the Welsh Authority, require arrangements made or kept in force for the purposes of sub-paragraphs (2) or (3) to apply in the case of every service which is an ancillary service by reference to one of their public digital services as they apply to the service itself.

(6) For the purposes of this paragraph a public digital service of the Welsh Authority is to be treated, in relation to particular appropriate networks and satellite television services, as constituting such services comprised in or provided with that public digital service—

(a) as may be determined by agreement between the Welsh Authority and OFCOM; or

(b) in default of agreement, as may be directed by OFCOM.

(7) This paragraph—

(a) so far as it relates to the broadcasting or distribution of any of the Welsh Authority’s public digital services by means of appropriate networks, applies only in relation to times when that service is included in the list of must-carry services in section 64; and

(b) so far as it relates to the broadcasting of such a public digital service by means of a satellite television service, applies only in relation to times when that service is included in the list of must-provide services in section 275.

(8) In this paragraph—

• “appropriate network” means an electronic communications network by means of which public electronic communications services are provided that are used by a significant number of end-users in Wales as their principal means of receiving television programmes;

• “intended audience”, in relation to a public digital service of the Welsh Authority, means—

  (a)

  if the service is one provided only for a particular area or locality of Wales, members of the public in that area or locality;

  (b)

  if the service is one provided for members of a particular community, members of that community; and

  (c)

  in any other case, members of the public in Wales;

• “public digital service”, in relation to the Welsh Authority, means any of their public television services so far as it is provided in digital form; and

• “satellite television service” means a service which—

  (a)

  consists in or involves the broadcasting of television programme services from a satellite; and

  (b)

  is used by a significant number of the persons by whom the broadcasts are received in an intelligible form as their principal means of receiving television programmes.

(9) For the purposes of this section an electronic communications network is not an appropriate network in relation to so much of a channel or other service as is provided only for a particular area or locality of Wales unless it is a network by means of which electronic communications services are provided to persons in that area or locality

(10) In sub-paragraph (8) “public electronic communications service” and “end-user” each has the same meaning as in Chapter 1 of Part 2.

(11) An order under section 411 must not appoint a day for provisions of this paragraph to come into force that falls less than six months after the day on which the order is made.

Supply of services by satellite in certain areas E+W+S+N.I.

6 It shall be the duty of the Welsh Authority— E+W+S+N.I.

(a) to join with the providers of other must-provide services in entering into and maintaining arrangements satisfying the requirements of section 274; and

(b) to comply with the requirements of any arrangements imposed by OFCOM for the purposes of conditions under subsection (2) of that section.

Programming quotas for independent productions E+W+S+N.I.

7 (1) It shall be the duty of the Welsh Authority to secure that, in each year, not less than 25 per cent. of the total amount of time allocated to the broadcasting of qualifying programmes included in their designated public services (taken together) is allocated to the broadcasting of a range and diversity of independent productions. E+W+S+N.I.

(2) In this paragraph—

(a) a reference to qualifying programmes is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be qualifying programmes for the purposes of this paragraph;

(b) a reference to independent productions is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be independent productions for the purposes of this paragraph; and

(c) a reference to a range of independent productions is a reference to a range of such productions in terms of cost of acquisition as well as in terms of the types of programme involved.

(3) The Secretary of State may by order amend sub-paragraph (1) by substituting a different percentage for the percentage for the time being specified in that sub-paragraph.

(4) The Secretary of State may also by order provide for the Welsh Authority to have the duty set out in sub-paragraph (5), either instead of or as well as the one set out in sub-paragraph (1).

(5) That duty is a duty to secure that, in each year, not less than the percentage specified in the order of the programming budget for that year for the designated public services (taken together) is applied in the acquisition of independent productions.

(6) The power to make an order under sub-paragraph (4) includes power to provide that the Welsh Authority are again to be subject to a duty to which they have previously ceased to be subject by virtue of such an order, in addition to or instead of the duty to which they are subject (apart from the exercise of that power) by virtue of this paragraph.

(7) The Secretary of State is not to make an order for the Welsh Authority to be or to cease to be subject to the duty mentioned in sub-paragraph (1) or (5) unless—

(a) OFCOM have made a recommendation to him that the Authority should be subject to that duty, or should cease to be subject to it; and

(b) the order gives effect to that recommendation.

(8) The Welsh Authority must comply with directions given to them by OFCOM for the purpose of—

(a) carrying forward to one or more subsequent years determined in accordance with the direction any shortfall for any year in their compliance with the duties imposed by virtue of sub-paragraph (1) or (4); and

(b) thereby increasing the percentage applicable for the purposes of those duties to the subsequent year or years.

(9) For the purposes of this paragraph—

(a) the amount of the programming budget for a year, and

(b) the means of determining the amount of that budget that is applied for any purpose,

are to be computed in accordance with such provision as may be set out in an order made by the Secretary of State, or as may be determined by OFCOM in accordance with such an order.

(10) Before making an order under this paragraph the Secretary of State must consult OFCOM, the BBC and the Welsh Authority.

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

(12) The services that are designated public services for the purposes of this paragraph are—

(a) S4C;

(b) S4C Digital; and

(c) any of the Welsh Authority’s other public television services which is designated for the purposes of this paragraph by the order under section 205 approving its provision.

(13) In this paragraph—

• “acquisition”, in relation to a programme, includes commissioning and acquiring a right to include it in a service or to have it broadcast;

• “programme” does not include an advertisement; and

• “programming budget” means the budget for the production and acquisition of qualifying programmes.

Programme quotas for original productions E+W+S+N.I.

8 (1) It shall be the duty of the Welsh Authority, in relation to their designated public services (taken together) to secure— E+W+S+N.I.

(a) that the time allocated, in each year, to the broadcasting of original productions included in those services is no less than the proportion fixed under sub-paragraph (2) of the total amount of time allocated to the broadcasting of all the programmes included in those services; and

(b) that the time allocated to the broadcasting of original productions is split in the manner so fixed between peak viewing times and other times.

(2) The fixing for the purposes of sub-paragraph (1) of a proportion or manner of splitting allocated time is to be—

(a) by agreement between the Welsh Authority and OFCOM; or

(b) in default of agreement, by a direction given by OFCOM to the Authority fixing the proportion or manner according to whatever OFCOM consider appropriate for ensuring that the service is consistently of a high quality.

(3) The agreement or direction may, for the purposes of sub-paragraph (1)(b), fix a proportion for the purposes of sub-paragraph (1)(a) in terms of the cumulative effect of two different minimum proportions, one applying to peak viewing times and the other to other times.

(4) The agreement or direction may provide that specified descriptions of programmes are to be excluded in determining the programmes a proportion of which is to constitute original productions.

(5) It may also provide that, in determining whether a programme is of a description of programmes excluded by an agreement or direction by virtue of sub-paragraph (4), regard is to be had to any guidance prepared and published, and from to time revised, by OFCOM.

(6) References in this paragraph, in relation to the designated public services of the Welsh Authority, to original productions are references to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be original productions for the purposes of this paragraph.

(7) The power to specify descriptions of programmes by order under sub-paragraph (6) includes power to confer such discretions on OFCOM as the Secretary of State thinks fit.

(8) Before making an order under this paragraph the Secretary of State must consult OFCOM, the BBC and the Welsh Authority.

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

(10) The services that are designated public services for the purposes of this paragraph are—

(a) S4C;

(b) S4C Digital; and

(c) any of the Welsh Authority’s other public television services which is designated for the purposes of this paragraph by the order under section 205 approving its provision.

(11) In this section—

• “peak viewing time”, in relation to the designated public services of the Welsh Authority, means a time that is determined in accordance with sub-paragraph (12) to be a peak viewing time for one or more of those services; and

• “programme” does not include an advertisement.

(12) The determination for the purposes of this paragraph of peak viewing times is to be—

(a) by agreement between the Welsh Authority and OFCOM; or

(b) in default of agreement, by a direction given by OFCOM to the Authority determining those times.

News and current affairs programmes E+W+S+N.I.

9 (1) It shall be the duty of the Welsh Authority, in relation to their designated public services, to secure— E+W+S+N.I.

(a) that the programmes included in each service include news programmes and current affairs programmes;

(b) that the news programmes and current affairs programmes included in each service deal with both national and international matters; and

(c) that the news programmes so included are broadcast for viewing at intervals throughout the period for which the service is provided.

(2) It shall be the duty of the Welsh Authority, in relation to each of their designated public services, to ensure that the news programmes and current affairs programmes included in each service are of high quality.

(3) It shall also be the duty of the Welsh Authority, in relation to each of their designated public services, to secure that in each year—

(a) the time allocated to the broadcasting of news programmes included in the service, and

(b) the time allocated to the broadcasting of current affairs programmes so included,

each constitutes no less than the proportion fixed under sub-paragraph (5) of the time allocated to the broadcasting of all the programmes included in the service.

(4) It is the further duty of the Welsh Authority, in relation to each of their designated public services, to secure that the time allocated—

(a) to the broadcasting of news programmes included in the service, and

(b) to the broadcasting of current affairs programmes so included,

is, in each case, split, in the manner fixed under sub-paragraph (5), between peak viewing times and other times.

(5) The fixing for the purposes of sub-paragraph (3) or (4) of a proportion or manner of splitting allocated time is to be—

(a) by agreement between the Welsh Authority and OFCOM; or

(b) in default of agreement, by a direction given by OFCOM to the Authority fixing the proportion or manner according to whatever OFCOM consider appropriate.

(6) The agreement or direction may, for the purposes of sub-paragraph (4), fix a proportion for the purposes of sub-paragraph (3) in terms of the cumulative effect of two different minimum proportions, one applying to peak viewing times and the other to other times.

(7) The services that are designated public services for the purposes of this paragraph are—

(a) S4C;

(b) S4C Digital; and

(c) any of the Welsh Authority’s other public television services which is designated for the purposes of this paragraph by the order under section 205 approving its provision.

(8) In this paragraph “peak viewing time”, in relation to a service, means a time that is determined in accordance with sub-paragraph (9) to be a peak viewing time for that service.

(9) The determination for the purposes of this paragraph of a peak viewing time is to be—

(a) by agreement between the Welsh Authority and OFCOM; or

(b) in default of agreement, by a direction given by OFCOM to the Authority determining that time.

Code relating to programme commissioning E+W+S+N.I.

10 (1) It shall be the duty of the Welsh Authority to draw up and from time to time revise a code of practice setting out the principles that are to be applied when they or an S4C company are for a relevant purpose agreeing terms for the commissioning of independent productions. E+W+S+N.I.

(2) A relevant purpose is a purpose connected with the provision by the Welsh Authority or an S4C company of a programme service.

(3) It shall also be the duty of the Welsh Authority—

(a) at all times to comply with the code of practice which is for the time being in force under this paragraph;

(b) to take all reasonable steps for securing that the code is complied with by S4C companies;

(c) to exercise their power to revise that code to take account of revisions from time to time of the guidance issued by OFCOM for the purposes of this paragraph; and

(d) to comply with such directions as may be given to the Authority by OFCOM for securing that they properly perform their duties under paragraphs (a) and (b).

(4) The code for the time being in force under this paragraph must be such as to secure, in the manner described in guidance issued by OFCOM—

(a) that a reasonable timetable is applied to negotiations for the commissioning of an independent production and for the conclusion of a binding agreement;

(b) that there is sufficient clarity when an independent production is commissioned about the different categories of rights to broadcast or otherwise to make use of or exploit the commissioned production that are being disposed of;

(c) that there is sufficient transparency about the amounts to be paid in respect of each category of rights;

(d) that satisfactory arrangements are made about the duration and exclusivity of those rights;

(e) that procedures exist for reviewing the arrangements adopted in accordance with the code and for demonstrating compliance with it;

(f) that those procedures include requirements for the monitoring of the application of the code and for the making of reports to OFCOM;

(g) that provision is made for resolving disputes arising in respect of the provisions of the code (by independent arbitration or otherwise) in a manner that appears to OFCOM to be appropriate.

(5) The Welsh Authority must also ensure that the drawing up or revision of a code by virtue of this paragraph is in accordance with guidance issued by OFCOM as to—

(a) the times when the code is to be drawn up or reviewed with a view to revision;

(b) the consultation to be undertaken before a code is drawn up or revised;

(c) the publication of every code or revised code.

(6) The Welsh Authority must submit to OFCOM for approval a draft of—

(a) every code that is required to be drawn up under this paragraph; and

(b) every revision made by that Authority of such a code.

(7) A code drawn up by the Welsh Authority or a revision of such a code —

(a) is to have effect for the purposes of this paragraph only if approved by OFCOM; and

(b) if approved by OFCOM subject to modifications, is to have effect with those modifications.

(8) OFCOM—

(a) must issue and may from time to time revise guidance for the purposes of this paragraph;

(b) must ensure that there is always guidance for those purposes in force;

(c) must, before issuing their guidance or revised guidance, consult the providers of licensed public service channels, persons who make independent productions (or persons appearing to OFCOM to represent them), the BBC and the Welsh Authority; and

(d) must publish their guidance or revised guidance in such manner as they think appropriate.

(9) Guidance issued by OFCOM for the purposes of this paragraph must be general guidance and is not to specify particular terms to be included in agreements to which the guidance relates.

(10) OFCOM may by a direction to the Welsh Authority specify that a code which—

(a) was drawn up by the Authority before the commencement of this paragraph, and

(b) is identified in the direction,

is to be treated as drawn up in pursuance of this paragraph and approved by OFCOM.

(11) In this paragraph “independent production” has the same meaning as in paragraph 7.

Co-operation with the public teletext provider E+W+S+N.I.

11 (1) The Welsh Authority must grant access to the public teletext provider to the facilities that are reasonably required by him for the purposes of, or in connection with, the provision of the public teletext service. E+W+S+N.I.

(2) The Welsh Authority may require the public teletext provider to pay a reasonable charge in respect of facilities access to which is granted under this paragraph.

(3) In the event of a dispute, the amount of the charge is to be determined by OFCOM.

Programme standards E+W+S+N.I.

12 It shall be the duty of the Welsh Authority in relation to their public television services to observe the standards set under section 319. E+W+S+N.I.

13 It shall be the duty of the Welsh Authority to comply with a direction given to them by OFCOM with respect to the establishment of procedures for the handling and resolution of complaints about the observance by the Authority of standards set under section 319. E+W+S+N.I.

14 (1) It shall be the duty of the Welsh Authority to comply with directions given to them by OFCOM with respect to any of the matters mentioned in sub-paragraph (2). E+W+S+N.I.

(2) Those matters are—

(a) the exclusion from any of the Authority’s public television services of a particular advertisement, or its exclusion in particular circumstances;

(b) the descriptions of advertisements and methods of advertising to be excluded from the services so provided (whether generally or in particular circumstances); and

(c) the methods of sponsorship to be excluded from those services (whether generally or in particular circumstances).

15 (1) This paragraph applies if OFCOM are satisfied— E+W+S+N.I.

(a) that the Welsh Authority have failed in any respect to perform any of their duties under paragraphs 12 to 14; and

(b) that the failure can be appropriately remedied by the inclusion in any or all of the Authority’s public television services of a correction or a statement of findings.

(2) OFCOM may direct the Welsh Authority to include a correction or a statement of findings (or both) in any one or more of their public television services.

(3) A direction may require the correction or statement of findings to be in such form, and to be included in programmes at such time or times, as OFCOM may determine.

(4) OFCOM are not to give a direction under this paragraph unless they have given the Welsh Authority a reasonable opportunity of making representations to them about the matters appearing to OFCOM to provide grounds for the giving of the direction.

(5) Where the Welsh Authority include a correction or a statement of findings in any of their public television services in pursuance of a direction under this paragraph, the Authority may announce that they are doing so in pursuance of such a direction.

(6) For the purposes of this section a statement of findings, in relation to a case in which OFCOM are satisfied that the Welsh Authority have failed to perform a duty imposed on them under paragraphs 12 to 14, is a statement of OFCOM’s findings in relation to that failure.

Directions with respect to advertising E+W+S+N.I.

16 (1) The Welsh Authority must comply with directions given to them by OFCOM with respect to any of the matters mentioned in sub-paragraph (2). E+W+S+N.I.

(2) Those matters are—

(a) the maximum amount of time to be given to advertisements in any hour or other period;

(b) the minimum interval which must elapse between any two periods given over to advertisements;

(c) the number of such periods to be allowed in any programme or in any hour or day; and

(d) the exclusion of advertisements from a specified part of S4C or S4C Digital.

(3) Directions under this paragraph—

(a) may be either general or specific;

(b) may be qualified or unqualified; and

(c) may make different provision for different parts of the day, different days of the week, different types of programmes or for other differing circumstances.

(4) In giving a direction under this paragraph, OFCOM shall take account of such of the international obligations of the United Kingdom as the Secretary of State may notify to them for the purposes of this paragraph.

Fairness standards E+W+S+N.I.

17 It shall be the duty of the Welsh Authority to secure the observance— E+W+S+N.I.

(a) in connection with the provision of their public television services, and

(b) in relation to the programmes included in those services,

of the code for the time being in force under section 107 of the 1996 Act (the fairness code).

Party political broadcasts E+W+S+N.I.

18 (1) It shall be the duty of the Welsh Authority to include— E+W+S+N.I.

(a) party political broadcasts, and

(b) referendum campaign broadcasts,

in every designated public service of theirs.

(2) The Welsh Authority must prepare, publish and from time to time review and revise their policy with respect to—

(a) party political broadcasts and referendum campaign broadcasts; and

(b) the manner in which they propose to perform their duty under sub-paragraph (1).

(3) The Welsh Authority’s policy may, in particular, include provision for determining—

(a) the political parties on whose behalf party political broadcasts may be made;

(b) in relation to each political party on whose behalf such broadcasts may be made, the length and frequency of the broadcasts; and

(c) in relation to each designated organisation on whose behalf referendum campaign broadcasts are required to be broadcast, the length and frequency of such broadcasts.

(4) That policy is to have effect subject to sections 37 and 127 of the Political Parties, Elections and Referendums Act 2000 (c. 41) (only registered parties and designated organisations to be entitled to party political broadcasts or referendum campaign broadcasts).

(5) In preparing or revising their policy with respect to the inclusion of party political broadcasts or referendum campaign broadcasts in their designated public services, the Welsh Authority must have regard to—

(a) any views expressed for the purposes of this paragraph by the Electoral Commission; and

(b) any rules made by OFCOM under section 333.

(6) The services that are designated public services for the purposes of this paragraph are—

(a) S4C;

(b) S4C Digital; and

(c) any of the Welsh Authority’s other public television services which is designated for the purposes of this paragraph by the order under section 205 approving its provision.

(7) In this paragraph—

• “designated organisation”, in relation to a referendum, means a person or body designated by the Electoral Commission under section 108 of the Political Parties, Elections and Referendums Act 2000 in respect of that referendum; and

• “referendum campaign broadcast” has the meaning given by section 127 of that Act.

Duty to publicise complaints procedures etc. E+W+S+N.I.

19 (1) It shall be the duty of the Welsh Authority to make arrangements for securing that the matters mentioned in sub-paragraph (2) are brought to the attention of the public (whether by means of broadcasts or otherwise). E+W+S+N.I.

(2) Those matters are—

(a) OFCOM’s functions under Part 5 of the 1996 Act in relation to services provided by the Welsh Authority; and

(b) any procedures established by OFCOM or the Authority for the handling and resolution of complaints about the observance by the Authority of standards set under section 319.

Monitoring of programmes E+W+S+N.I.

20 (1) It shall be the duty of the Welsh Authority— E+W+S+N.I.

(a) in respect of every programme included in any of their public television services, to retain a recording of the programme in the form, and for the period, specified by OFCOM;

(b) to comply with any request to produce such recordings to OFCOM for examination or reproduction; and

(c) to comply, to the extent that they are able to do so, with any request to produce to OFCOM a script or transcript of a programme included in any of their public television services.

(2) The period specified for the purposes of sub-paragraph (1)(a) must be a period not exceeding ninety days.

Compliance with international obligations E+W+S+N.I.

21 (1) OFCOM may give the Welsh Authority such directions as OFCOM consider appropriate for securing that all relevant international obligations are complied with. E+W+S+N.I.

(2) It shall be the duty of the Authority to comply with a direction under this paragraph.

(3) Before giving a direction under this paragraph, OFCOM must consult the Authority.

(4) In this paragraph “relevant international obligations” means the international obligations of the United Kingdom which have been notified to OFCOM by the Secretary of State for the purposes of this paragraph.

Services for the deaf and visually impaired E+W+S+N.I.

22 It shall be the duty of the Welsh Authority to observe the code for the time being in force under section 303 in the provision of— E+W+S+N.I.

(a) S4C Digital; and

(b) so much of any of the Welsh Authority’s other public television services as is provided in digital form.

Equality of opportunity E+W+S+N.I.

23 (1) It shall be the duty of the Welsh Authority to make such arrangements as they consider appropriate for promoting, in relation to employment with the Authority, equality of opportunity— E+W+S+N.I.

(a) between men and women; and

(b) between persons of different racial groups.

(2) It shall be the duty of the Welsh Authority to make arrangements for promoting, in relation to employment with the Authority, the equalisation of opportunities for disabled persons.

(3) The Welsh Authority shall also make such arrangements as they consider appropriate for the training and retraining of persons whom they employ in or in connection with—

(a) the provision of one or more of their public services; or

(b) the making of programmes to be included in one or more of those services.

(4) The Welsh Authority—

(a) shall take all such steps as they consider appropriate for making persons affected by any arrangements made in pursuance of sub-paragraphs (1) to (3) aware of the arrangements (including the publication of the arrangements in such manner as they think fit);

(b) shall review the arrangements from time to time; and

(c) shall, from time to time (and at least annually), publish, in such manner as they consider appropriate, their observations on the current operation and effectiveness of the arrangements.

(5) Before making any arrangements in pursuance of any of sub-paragraphs (1) to (3) or determining the manner in which they will comply with sub-paragraph (4), the Welsh Authority must consult OFCOM.

(6) In this paragraph—

• “disabled” has the same meaning as in the Disability Discrimination Act 1995 (c. 50);

• “racial group” has the same meaning as in the Race Relations Act 1976 (c. 74) or, in Northern Ireland, the Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6)).

(7) The Secretary of State may by order amend sub-paragraph (1) by adding any other form of equality of opportunity that he considers appropriate to that sub-paragraph.

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

Meaning of Welsh Authority’s public services E+W+S+N.I.

24 (1) In this Part of this Schedule, references to the Welsh Authority’s public services are references to the following— E+W+S+N.I.

(a) S4C;

(b) S4C Digital; and

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

(2) References in this Schedule to a public television service of the Welsh Authority are references to any public service of the Authority which is a television programme service.

Section 345

SCHEDULE 13 E+W+S+N.I. Financial penalties under the Broadcasting Acts

Part 1 E+W+S+N.I. Broadcasting Act 1990

Preliminary E+W+S+N.I.

1 The 1990 Act shall be amended as follows. E+W+S+N.I.

Revocation of television services licence E+W+S+N.I.

2 (1) In subsection (3) of section 18 (penalty on revocation of television services licence), for “a financial penalty of the prescribed amount” there shall be substituted “ a specified financial penalty ”. E+W+S+N.I.

(2) For subsection (4) of that section (amount of penalty) there shall be substituted—

“(3A) The maximum amount which a person may be required to pay by way of a penalty under subsection (3) is the maximum penalty given by subsections (3B) and (3C).

(3B) In a case where the licence is revoked under this section or the penalty is imposed before the end of the first complete accounting period of the licence holder to fall within the period for which the licence is in force, the maximum penalty is whichever is the greater of—

(a) £500,000; and

(b) 7 per cent. of the amount which OFCOM estimate would have been the qualifying revenue for the first complete accounting period of the licence holder falling within the period for which the licence would have been in force.

(3C) In any other case, the maximum penalty is whichever is the greater of—

(a) £500,000; and

(b) 7 per cent. of the qualifying revenue for the last complete accounting period of the licence holder falling within the period for which the licence is in force.

(3D) Section 19(2) to (6) applies for estimating or determining qualifying revenue for the purposes of subsection (3B) or (3C) above.”

(3) This paragraph applies only in a case of a revocation in relation to which—

(a) the notice required by section 18(2) of the 1990 Act, or

(b) the notice revoking the licence,

is served after the commencement of this paragraph.

Licences for Channel 3 services and for Channels 4 and 5 E+W+S+N.I.

3 (1) For subsection (2) of section 41 (penalties for failure by holder of licence for Channel 3 services, Channel 4 or Channel 5 to comply with licence conditions or directions) there shall be substituted— E+W+S+N.I.

“(1A) The amount of a financial penalty imposed on a person in pursuance of subsection (1)(a) shall not exceed 5 per cent. of the qualifying revenue for the licence holder’s last complete accounting period falling within the period for which his licence has been in force (“the relevant period”).

(1B) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (1A) is to be construed as referring to 5 per cent. of the amount which OFCOM estimate to be the qualifying revenue for that accounting period.

(1C) Section 19(2) to (6) applies for determining or estimating qualifying revenue for the purposes of subsection (1A) or (1B) above.”

(2) This paragraph applies in relation to a failure to comply with a condition or direction only if it is one occurring after the commencement of this paragraph.

Restricted services licences E+W+S+N.I.

4 (1) In subsection (2) of section 42B (application of sections 40 to 42 to licensing of restricted services), for “subsections (3) and (4)” there shall be substituted “ subsections (3) to (3C) ”. E+W+S+N.I.

(2) In subsection (3) of that section—

(a) for “subsection (2)” there shall be substituted “ subsections (1A) to (1C) ”; and

(b) for the words from “shall not exceed whichever is the greater” onwards there shall be substituted “ is the maximum penalty given by subsection (3A). ”

(3) For subsection (4) of that section (penalties for failure to comply with conditions or directions) there shall be substituted—

“(3A) The maximum penalty is whichever is the greater of—

(a) £250,000; and

(b) 5 per cent. of the qualifying revenue for the licence holder’s last complete accounting period falling within the period for which his licence has been in force (“the relevant period”).

(3B) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (3A)(b) is to be construed as referring to 5 per cent. of the amount which OFCOM estimate to be the qualifying revenue for that accounting period.

(3C) Section 19(2) to (6) applies for determining or estimating qualifying revenue for the purposes of subsection (3A) or (3B) above.”

(4) This paragraph applies in relation to a failure to comply with a condition or direction only if it is one occurring after the commencement of this paragraph.

Additional television services licences E+W+S+N.I.

5 (1) For subsection (2) of section 55 (penalties for failure by holder of licence for additional television service to comply with licence conditions or directions) there shall be substituted— E+W+S+N.I.

“(1A) The amount of a financial penalty imposed on a person in pursuance of subsection (1) shall not exceed 5 per cent. of the qualifying revenue for the licence holder’s last complete accounting period falling within the period for which his licence has been in force (“the relevant period”).

(1B) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (1A) is to be construed as referring to 5 per cent. of the amount which OFCOM estimate to be the qualifying revenue for that accounting period.

(1C) Section 52(2) applies for determining or estimating qualifying revenue for the purposes of subsection (1A) or (1B) above.”

(2) This paragraph applies in relation to a failure to comply with a condition or direction only if it is one occurring after the commencement of this paragraph.

Revocation of national sound broadcasting licence E+W+S+N.I.

6 (1) In subsection (3) of section 101 (penalty on revocation of national sound broadcasting licence), for “a financial penalty of the prescribed amount” there shall be substituted “ a specified financial penalty ”. E+W+S+N.I.

(2) For subsection (4) of that section (amount of penalty) there shall be substituted—

“(3A) The maximum amount which a person may be required to pay by way of a penalty under subsection (3) is the maximum penalty given by subsections (3B) and (3C).

(3B) In a case where the licence is revoked under this section or the penalty is imposed before the end of the first complete accounting period of the licence holder to fall within the period for which the licence is in force, the maximum penalty is whichever is the greater of—

(a) £250,000; and

(b) 7 per cent. of the amount which OFCOM estimate would have been the qualifying revenue for the first complete accounting period of the licence holder falling within the period for which the licence would have been in force.

(3C) In any other case, the maximum penalty is whichever is the greater of—

(a) £250,000; and

(b) 7 per cent. of the qualifying revenue for the last complete accounting period of the licence holder falling within the period for which the licence is in force.

(3D) Section 102(2) to (6) applies for estimating or determining qualifying revenue for the purposes of subsection (3B) or (3C) above.”

(3) This paragraph applies only in a case of a revocation in relation to which—

(a) the notice required by section 101(2) of the 1990 Act, or

(b) the notice revoking the licence,

is served after the commencement of this paragraph.

Licences for analogue sound services E+W+S+N.I.

7 (1) For subsection (2) of section 110 (penalties for failure by holder of national sound broadcasting licence to comply with licence conditions or directions) there shall be substituted— E+W+S+N.I.

“(1A) The maximum amount which the holder of a national licence may be required to pay by way of a financial penalty imposed in pursuance of subsection (1)(a) is the maximum penalty given by subsection (1B).

(1B) The maximum penalty is whichever is the greater of—

(a) £250,000; and

(b) 5 per cent. of the qualifying revenue for his last complete accounting period falling within the period for which his licence has been in force (“the relevant period”).

(1C) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (1B)(b) is to be construed as referring to 5 per cent. of the amount which OFCOM estimate to be the qualifying revenue for that accounting period.

(1D) Section 102(2) to (6) applies for determining or estimating qualifying revenue for the purposes of subsection (1B) or (1C) above.”

(2) In subsection (3) of that section (maximum penalty for failure by holder of a sound broadcasting licence that is not a national licence to comply with licence conditions or directions), for “£50,000” there shall be substituted “ £250,000 ”.

(3) This paragraph applies in relation to a failure to comply with a condition or direction only if it is one occurring after the commencement of this paragraph.

Additional radio services licences E+W+S+N.I.

8 (1) For subsection (2) of section 120 (penalties for failure by holder of additional radio services licence to comply with licence conditions or directions) there shall be substituted— E+W+S+N.I.

“(1A) The amount of a financial penalty imposed on a person in pursuance of subsection (1) shall not exceed 5 per cent. of the qualifying revenue for the licence holder’s last complete accounting period falling within the period for which his licence has been in force (“the relevant period”).

(1B) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (1A) is to be construed as referring to 5 per cent. of the amount which OFCOM estimate to be the qualifying revenue for that accounting period.

(1C) Section 118(2) applies for determining or estimating qualifying revenue for the purposes of subsection (1A) or (1B) above.”

(2) This paragraph applies in relation to a failure to comply with a condition or direction only if it is one occurring after the commencement of this paragraph.

Power to amend penalties under the 1990 Act E+W+S+N.I.

9 (1) The Secretary of State may by order amend any of the provisions of the 1990 Act specified in sub-paragraph (2) by substituting a different sum for the sum for the time being specified in that provision. E+W+S+N.I.

(2) Those provisions are—

(a) section 18(3B)(a) and (3C)(a);

(b) section 42B(3A)(a);

(c) section 101(3B)(a) and (3C)(a);

(d) section 110(1B)(a) and (3).

(3) No order is to be made under this paragraph unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Part 2 E+W+S+N.I. Broadcasting Act 1996

Preliminary E+W+S+N.I.

10 The 1996 Act shall be amended as follows. E+W+S+N.I.

Revocation of television multiplex licences E+W+S+N.I.

11 (1) In subsection (5) of section 11 (penalty on revocation of television multiplex licence), the words from “not exceeding” onwards shall be omitted. E+W+S+N.I.

(2) For subsection (6) of that section (amount of penalty) there shall be substituted—

“(5A) The maximum amount which a person may be required to pay by way of a penalty under subsection (5) is the maximum penalty given by subsections (5B) and (5C).

(5B) In a case where the licence is revoked under this section or the penalty is imposed before the end of the first complete accounting period of the licence holder to fall within the period for which the licence is in force, the maximum penalty is whichever is the greater of—

(a) £500,000; and

(b) 7 per cent. of the amount which OFCOM estimate would have been the multiplex revenue for the first complete accounting period of the licence holder falling within the period for which the licence would have been in force.

(5C) In any other case, the maximum penalty is whichever is the greater of—

(a) £500,000; and

(b) 7 per cent. of the multiplex revenue for the last complete accounting period of the licence holder falling within the period for which the licence is in force.

(5D) Section 14 applies for estimating or determining multiplex revenue for the purposes of subsection (5B) or (5C) above.”

(3) This paragraph applies only in a case of a revocation in relation to which—

(a) the notice required by section 11(2) of the 1996 Act, or

(b) the notice revoking the licence,

is served after the commencement of this paragraph.

Attribution of television multiplex revenue E+W+S+N.I.

12 (1) In subsection (1) of section 15 (attribution of multiplex revenue for the purposes of section 17(3)), for “17(3)” there shall be substituted “ 17(2A) and (2B) ”. E+W+S+N.I.

(2) In subsection (2) of that section (attribution for the purposes of sections 23(3) and 27(3)), for “section 23(3) or section 27(3)” there shall be substituted “ sections 23(2A) to (5) and 27(2A) to (5) ”.

(3) This paragraph has effect in relation only to cases in which section 17, 23 or 27 applies as amended by this Schedule.

Multiplex licences E+W+S+N.I.

13 (1) In subsection (2) of section 17 (penalty for failure by holder of television multiplex licence to comply with licence conditions or directions), for the words from “whichever is the greater” onwards there shall be substituted “ the maximum penalty given by subsection (2A). ” E+W+S+N.I.

(2) For subsection (3) of that section (maximum penalties) there shall be substituted—

“(2A) The maximum penalty is whichever is the greater of—

(a) £250,000; and

(b) 5 per cent. of the share of multiplex revenue attributable to the licence holder for his last complete accounting period falling within the period for which his licence has been in force (“the relevant period”).

(2B) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (2A)(b) is to be construed as referring to 5 per cent. of the amount which OFCOM estimate to be the share of multiplex revenue attributable to him for that accounting period.

(2C) Section 15(1) and (3) applies for determining or estimating the share of multiplex revenue attributable to a person for the purposes of subsection (2A) or (2B) above.”

(3) This paragraph applies in relation to a failure to comply with a condition or direction only if it is one occurring after the commencement of this paragraph.

Digital television programme licences E+W+S+N.I.

14 (1) In subsection (2) of section 23 (penalty for failure by holder of digital television programme licence to comply with licence conditions or directions), for the words from “whichever is the greater” onwards there shall be substituted “ the maximum penalty given by subsection (2A). ” E+W+S+N.I.

(2) For subsection (3) of that section (maximum penalties) there shall be substituted—

“(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 television multiplex services and general multiplex services in respect of relevant accounting periods.”

(3) In subsection (4) of that section (meaning of “relevant accounting period”), for “subsection (3)(a)” there shall be substituted “ subsection (2A) ”.

(4) In subsection (5) of that section, for “not yet ended, then for the purposes of subsection (3)” there shall be substituted “ not ended when the penalty is imposed, then for the purposes of this section ”.

(5) Before subsection (6) of that section there shall be inserted—

“(5B) Section 15(2) and (3) applies for determining or estimating the share of multiplex revenue attributable to a person for the purposes of subsection (2A) or (5) above.”

(6) This paragraph applies in relation to a failure to comply with a condition or direction only if it is one occurring after the commencement of this paragraph.

Digital additional television services licences E+W+S+N.I.

15 (1) In subsection (2) of section 27 (penalty for failure by holder of digital additional services licence to comply with licence conditions or directions), for the words from “whichever is the greater” onwards there shall be substituted “ the maximum penalty given by subsection (2A). ” E+W+S+N.I.

(2) For subsection (3) of that section (maximum penalties) there shall be substituted—

“(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 television multiplex services and general multiplex services in respect of relevant accounting periods.”

(3) In subsection (4) of that section (meaning of “relevant accounting period”), for “subsection (3)(a)” there shall be substituted “ subsection (2A) ”.

(4) In subsection (5) of that section, for “not yet ended, then for the purposes of subsection (3)” there shall be substituted “ not ended when the penalty is imposed, then for the purposes of this section ”.

(5) Before subsection (6) of that section there shall be inserted—

“(5B) Section 15(2) and (3) applies for determining or estimating the share of multiplex revenue attributable to a person for the purposes of subsection (2A) or (5) above.”

(6) This paragraph applies in relation to a failure to comply with a condition or direction only if it is one occurring after the commencement of this paragraph.

Power to amend digital television penalties E+W+S+N.I.

16 For section 36(2) and (3) (provisions that may be amended and negative resolution procedure) there shall be substituted— E+W+S+N.I.

“(2) The provisions referred to in subsection (1) are—

(a) section 11(5B)(a) and (5C)(a);

(b) section 17(2A)(a);

(c) section 23(2A)(a); and

(d) section 27(2A)(a).

(3) No order is to be made under subsection (1) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.”

Revocation of radio multiplex licences E+W+S+N.I.

17 (1) In section 53(5) (maximum penalty on revocation of radio multiplex licence), for “£50,000”, in both places, there shall be substituted “ £250,000 ”. E+W+S+N.I.

(2) This paragraph applies only in a case of a revocation in relation to which—

(a) the notice required by section 53(2) of the 1996 Act, or

(b) the notice revoking the licence,

is served after the commencement of this paragraph.

Attribution of radio multiplex revenue E+W+S+N.I.

18 (1) In subsection (1) of section 57 (attribution of multiplex revenue for the purposes of sections 59(3)), for “59(3)” there shall be substituted “ 59(2A) and (2B) ”. E+W+S+N.I.

(2) In subsection (2) of that section, (attribution for the purposes of sections 62(3) and 66(3)), for “section 62(3) or section 66(3)” there shall be substituted “ sections 62(2A) to (5) and 66(2A) to (5) ”.

(3) This paragraph has effect in relation only to cases in which section 59, 62 or 66 applies as amended by this Schedule.

Contraventions of conditions of radio multiplex licences E+W+S+N.I.

19 (1) In subsection (2) of section 59 (penalty for failure by holder of radio multiplex licence to comply with licence conditions or directions), for the words from “whichever is the greater” onwards there shall be substituted “ the maximum penalty given by subsection (2A). ” E+W+S+N.I.

(2) For subsection (3) of that section (maximum penalties) there shall be substituted—

“(2A) The maximum penalty is whichever is the greater of—

(a) £250,000; and

(b) 5 per cent. of the aggregate amount of the share of multiplex revenue attributable to him for his last complete accounting period falling within a period for which his licence has been in force (“the relevant period”).

(2B) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (2A)(b) is to be construed as referring to 5 per cent. of the amount which OFCOM estimate to be the share of multiplex revenue attributable to him for that accounting period.

(2C) Section 57(1) and (3) applies for determining or estimating the share of multiplex revenue attributable to a person for the purposes of subsection (2A) or (2B) above.”

(3) In subsection (4) of that section (maximum penalty to be imposed on holder of local radio multiplex licences for failure to comply with conditions or directions), for “£50,000” there shall be substituted “ £250,000 ”.

(4) This paragraph applies in relation to a failure to comply with a condition or direction only if it is one occurring after the commencement of this paragraph.

Digital sound programme licences E+W+S+N.I.

20 (1) In subsection (2) of section 62 (penalty for failure by holder of digital sound programme licence to comply with licence conditions or directions), for the words from “whichever is the greater” onwards there shall be substituted “ the maximum penalty given by subsection (2A). ” E+W+S+N.I.

(2) For subsection (3) of that section (maximum penalties) there shall be substituted—

“(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.”

(3) In subsection (4) of that section (meaning of “relevant accounting period”), for “subsection (3)” there shall be substituted “ subsection (2A) ”.

(4) In subsection (5) of that section, for “not yet ended, then for the purposes of subsection (3)” there shall be substituted “ not ended when the penalty is imposed, then for the purposes of this section ”.

(5) After that subsection there shall be inserted—

“(5A) A determination or estimate for the purposes of subsection (2A) or (5) 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).

(5B) A determination or estimate for the purposes of subsection (2A) or (5) above of the share of multiplex revenue attributable to a person in relation to television multiplex services or general multiplex services is to be in accordance with section 15(2) and (3).”

(6) In subsection (6) of that section (maximum penalty where licence is a local digital sound programme licence), for “£50,000” there shall be substituted “ £250,000 ”.

(7) This paragraph applies in relation to a failure to comply with a condition or direction only if it is one occurring after the commencement of this paragraph.

Licences for digital additional sound services E+W+S+N.I.

21 (1) In subsection (2) of section 66 (penalty for failure by holder of digital additional sound services licence to comply with licence conditions or directions), for the words from “whichever is the greater” onwards there shall be substituted “ the maximum penalty given by subsection (2A). ” E+W+S+N.I.

(2) For subsection (3) of that section (maximum penalties) there shall be substituted—

“(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.”

(3) In subsection (4) of that section (maximum penalty where licence is a local digital sound programme licence), for “£50,000” there shall be substituted “ £250,000 ”.

(4) In subsection (5) of that section (meaning of “relevant accounting period”) for “subsection (3)” there shall be substituted “ subsection (2A) ”.

(5) In subsection (6) of that section, for “not yet ended, then for the purposes of subsection (3)” there shall be substituted “ not ended when the penalty is imposed, then for the purposes of this section ”.

(6) After that subsection there shall be inserted—

“(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).”

(7) This paragraph applies in relation to a failure to comply with a condition or direction only if it is one occurring after the commencement of this paragraph.

Power to amend digital television penalties E+W+S+N.I.

22 For section 69(2) and (3) (provisions that may be amended and negative resolution procedure) there shall be substituted— E+W+S+N.I.

“(2) The provisions referred to in subsection (1) are—

(a) section 53(5)(a) and (b)(i);

(b) section 59(2A)(a) and (4);

(c) section 62(2A)(a) and (6); and

(d) section 66(2A)(a) and (4).

(3) No order is to be made under subsection (1) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.”

Section 350

SCHEDULE 14 E+W+S+N.I. Media ownership rules

Part 1 E+W+S+N.I. Channel 3 services

Ban on newspaper proprietors holding Channel 3 licences E+W+S+N.I.

1 (1) A person is not to hold a licence to provide a Channel 3 service if— E+W+S+N.I.

(a) he runs a national newspaper which for the time being has a national market share of 20 per cent. or more; or

(b) he runs national newspapers which for the time being together have a national market share of 20 per cent. or more.

(2) A person is not to hold a licence to provide a regional Channel 3 service if—

(a) he runs a local newspaper which for the time being has a local market share of 20 per cent. or more in the coverage area of the service; or

(b) he runs local newspapers which for the time being together have a local market share of 20 per cent. or more in that coverage area.

(3) For the purposes of this paragraph, where there is a licence to provide a Channel 3 service, each of the following shall be treated as holding that licence—

(a) the actual licence holder; and

(b) every person connected with the actual licence holder.

Restrictions on participation E+W+S+N.I.

2 (1) A person who is— E+W+S+N.I.

(a) the proprietor of a national newspaper which for the time being has a national market share of 20 per cent. or more, or

(b) the proprietor of national newspapers which for the time being together have a national market share of 20 per cent. or more,

is not to be a participant with more than a 20 per cent. interest in a body corporate which is the holder of a licence to provide a Channel 3 service.

(2) A person who is the holder of a licence to provide a Channel 3 service is not to be a participant with more than a 20 per cent. interest in a body corporate which is a relevant national newspaper proprietor.

(3) A body corporate is not to be a participant with more than a 20 per cent. interest in a body corporate which holds a licence to provide a Channel 3 service if the first body corporate is one in which a relevant national newspaper proprietor is a participant with more than a 20 per cent. interest.

(4) A restriction imposed by this paragraph on participation in a body corporate which is the holder of a Channel 3 licence applies equally to participation in a body corporate which controls the holder of such a licence.

(5) Any restriction on participation imposed by this paragraph—

(a) on the proprietor of a newspaper, or

(b) on the holder of a licence,

is to apply as if he and every person connected with him were one person.

(6) In this paragraph “a relevant national newspaper proprietor” means a person who runs—

(a) a national newspaper which for the time being has a national market share of 20 per cent. or more; or

(b) national newspapers which for the time being together have a national market share of 20 per cent. or more.

National and local newspapers and their respective national and local market shares E+W+S+N.I.

3 (1) In this Part of this Schedule references to a national or local newspaper are references to a national or local newspaper circulating wholly or mainly in the United Kingdom or in a part of the United Kingdom. E+W+S+N.I.

(2) Where a newspaper is published in different regional editions on the same day, OFCOM have the power to determine whether those regional editions should be treated for the purposes of this Part of this Schedule as constituting—

(a) one national newspaper;

(b) two or more local newspapers; or

(c) one national newspaper and one or more local newspapers.

(3) In the case of a newspaper which would otherwise be neither a national nor a local newspaper for the purposes of this Part of this Schedule, OFCOM have the power to determine, if they consider it appropriate to do so in the light of—

(a) its circulation and influence in the United Kingdom, or

(b) its circulation or influence in a part of the United Kingdom,

that the newspaper is to be treated as a national or as a local newspaper for such of those purposes as they may determine.

(4) For the purposes of this Part of this Schedule, the national market share of a national newspaper at any time is the percentage of the total number of copies of all national newspapers sold in the United Kingdom in the relevant six months which is represented by the total number of copies of that newspaper sold in the United Kingdom in that six months.

(5) For the purposes of this Part of this Schedule, the local market share of a local newspaper in any area at any time is the percentage of the total number of copies of all local newspapers sold in that area in the relevant six months which is represented by the total number of copies of that newspaper sold in that area in that six months.

(6) In sub-paragraphs (4) and (5) “the relevant six months” means the six months ending with the last whole calendar month to end before the time in question.

(7) For the purposes of sub-paragraphs (4) and (5), the number of copies of a newspaper sold in the United Kingdom, or in a particular area, during any period may be taken to be such number as is estimated by OFCOM—

(a) in such manner, or

(b) by reference to such statistics prepared by any other person,

as they think fit.

(8) In relation to a newspaper which is distributed free of charge (rather than sold), references in this paragraph to the number of copies sold include references to the number of copies distributed.

Construction of references to running a newspaper E+W+S+N.I.

4 For the purposes of this Part of this Schedule a person runs a national or local newspaper if— E+W+S+N.I.

(a) he is the proprietor of the newspaper; or

(b) he controls a body which is the proprietor of the newspaper.

Coverage area for a Channel 3 service E+W+S+N.I.

5 For the purposes of this Part of this Schedule the coverage area for a Channel 3 service is the area that is determined by OFCOM to be the area of 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 them for the purposes of this paragraph. E+W+S+N.I.

Power to amend Part 1 of Schedule E+W+S+N.I.

6 The Secretary of State may by order repeal or otherwise modify any of the restrictions imposed by this Part of this Schedule. E+W+S+N.I.

Part 2 E+W+S+N.I. Radio multiplex services

Restriction on holding of national radio multiplex licences E+W+S+N.I.

7 A person is not to hold more than one national radio multiplex licence at the same time. E+W+S+N.I.

Restriction on holding of local radio multiplex licences E+W+S+N.I.

8 (1) A person is not to hold any two local radio multiplex licences at the same time where the coverage area of one of the licensed services overlaps with the coverage area of the other in a way that means that the potential audience for one of them is or includes at least half the potential audience of the other. E+W+S+N.I.

(2) For the purposes of this paragraph the coverage area for a local radio multiplex service is the area determined by OFCOM to be 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 them for the purposes of this sub-paragraph.

(3) Where a person is in contravention of this paragraph in respect of the holding by him of local radio multiplex licences, that contravention is to be disregarded in relation to any time if—

(a) he held those licences immediately before the commencement of this paragraph;

(b) his holding of those licences immediately before the commencement of this paragraph was not in contravention of paragraph 11(4) of Part 3 of Schedule 2 to the 1990 Act; and

(c) there has not been a relevant change of circumstances between the commencement of this paragraph and that time.

(4) There is a relevant change of circumstances in the case of the person in contravention if another person becomes the holder of the two pre-commencement licences in relation to which the contravention arises.

(5) In sub-paragraph (4) “pre-commencement licence”, in relation to a person and a time, means a local radio multiplex licence held by him immediately before the commencement of this paragraph and still held by him at that time.

Connected persons rules etc. E+W+S+N.I.

9 For the purposes of this Part of this Schedule, where there is a licence to provide a radio multiplex service, each of the following shall be treated as holding that licence— E+W+S+N.I.

(a) the actual licence holder; and

(b) every person connected with the actual licence holder.

Power to amend Part 2 of Schedule E+W+S+N.I.

10 The Secretary of State may by order repeal or otherwise modify any of the restrictions imposed by this Part of this Schedule. E+W+S+N.I.

Part 3 E+W+S+N.I. Local sound programme services

Restriction on holding of local sound broadcasting licences E+W+S+N.I.

11 (1) The Secretary of State may by order impose— E+W+S+N.I.

(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 E+W+S+N.I.

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. E+W+S+N.I.

(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 E+W+S+N.I.

13 (1) An order under paragraph 11 or 12 may make provision for treating— E+W+S+N.I.

(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 E+W+S+N.I.

14 (1) This paragraph applies where— E+W+S+N.I.

(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.

Part 4 E+W+S+N.I. Religious bodies etc.

Approval required for religious bodies etc. to hold licences E+W+S+N.I.

15 (1) A person mentioned in paragraph 2(1) of Part 2 of Schedule 2 to the 1990 Act (religious bodies etc.) is not to hold a Broadcasting Act licence not mentioned in paragraph 2(1A) of that Part unless— E+W+S+N.I.

(a) OFCOM have made a determination in his case as respects a description of licences applicable to that licence; and

(b) that determination remains in force.

(2) OFCOM are to make a determination under this paragraph in a person’s case and as respects a particular description of licence if, and only if, they are satisfied that it is appropriate for that person to hold a licence of that description.

(3) OFCOM are not to make a determination under this paragraph except on an application made to them for the purpose.

(4) OFCOM must publish guidance for persons making applications to them under this paragraph as to the principles that they will apply when determining for the purposes of sub-paragraph (2) what is appropriate.

(5) OFCOM must have regard to guidance for the time being in force under sub-paragraph (4) when making determinations under this paragraph.

(6) OFCOM may revise any guidance under sub-paragraph (4) by publishing their revisions of it.

(7) The publication of guidance under sub-paragraph (4), or of any revisions of it, is to be in whatever manner OFCOM consider appropriate.

Power to amend Part 4 of Schedule E+W+S+N.I.

16 The Secretary of State may by order repeal or otherwise modify the restriction imposed by this Part of this Schedule. E+W+S+N.I.

Part 5 E+W+S+N.I. Supplemental provisions of Schedule

Procedure for orders E+W+S+N.I.

17 (1) Before making an order under any provision of this Schedule (other than one that is confined to giving effect to recommendations made by OFCOM in a report of a review under section 391), the Secretary of State must consult OFCOM. E+W+S+N.I.

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

Interpretation of Schedule E+W+S+N.I.

18 (1) Part 1 of Schedule 2 to the 1990 Act applies for construing this Schedule as it applies for construing Part 2 of that Schedule. E+W+S+N.I.

(2) References in this paragraph to an area overlapping another include references to its being the same as, or lying wholly inside, the other area.

Section 360

SCHEDULE 15 E+W+S+N.I. Amendments of Broadcasting Acts

Part 1 E+W+S+N.I. Amendments of the 1990 Act

Licences under Part 1 E+W+S+N.I.

1 (1) Section 3 of the 1990 Act (licensing under Part 1) shall be amended as follows. E+W+S+N.I.

(2) For “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1), for “Chapter II, III, IV or V of this Part” there shall be substituted “ Chapter 2 or 5 of this Part or section 235 of the Communications Act 2003 ”.

(4) For subsection (8) (saving for telecommunications licences) there shall be substituted—

“(8) The holding by a person of a licence under this Part shall not relieve him of—

(a) any liability in respect of a failure to hold a licence under section 1 of the Wireless Telegraphy Act 1949; or

(b) any obligation to comply with requirements imposed by or under Chapter 1 of Part 2 of the Communications Act 2003 (electronic communications networks and electronic communications services).”

General licence conditions E+W+S+N.I.

2 (1) Section 4 of the 1990 Act (general licence conditions) shall be amended as follows. E+W+S+N.I.

(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1), in each of paragraphs (a) and (c), after “this Act” there shall be inserted “ , the Broadcasting Act 1996 or the Communications Act 2003 ”.

(4) In subsection (3) (fixing of fees), the words from “and the amount” onwards shall be omitted.

(5) In subsection (5) (provision of false information to be breach of condition)—

(a) for “imposed under this Part” there shall be substituted “ contained in the licence ”; and

(b) after “and 42” there shall be inserted “ or (as the case may be) sections 237 and 238 of the Communications Act 2003 (enforcement of television licensable content service licences) ”.

Restrictions on licence holding E+W+S+N.I.

3 (1) Section 5 of the 1990 Act (restrictions on licence holding) shall be amended as follows. E+W+S+N.I.

(2) For “The Commission” and “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (2) (incidental requirements to provide information), after paragraph (d) there shall be inserted—

“(da) impose conditions in a licence requiring the licence holder, if a body corporate, to give OFCOM notice, after they have occurred and irrespective of whether proposals for them have fallen to be notified, of changes, transactions or events affecting—

(i) shareholdings in the body; or

(ii) the directors of the body;

(db) impose conditions in a licence enabling OFCOM to require the licence holder to provide them with such information as they may reasonably require for determining—

(i) whether the licence holder is a disqualified person in relation to that licence by virtue of Part 2 of Schedule 2; or

(ii) whether any such requirements as are mentioned in subsection (1)(b) have been and are being complied with by or in relation to the licence holder;”.

(4) In subsection (6)—

(a) in paragraph (a), for “complained of” there shall be substituted “ constituting their grounds for revoking the licence ”; and

(b) in paragraph (b)(i), for “Parts III and IV of Schedule 2” there shall be substituted “ the requirements imposed by or under Schedule 14 to the Communications Act 2003, ”.

(5) In subsection (6A)—

(a) paragraph (a) shall cease to have effect; and

(b) in paragraph (b), for “Part IV of that Schedule” there shall be substituted “ Part 1 of Schedule 14 to the Communications Act 2003 ”.

(6) Subsection (6B) shall cease to have effect.

(7) In subsection (7), for the words from “a failure” to the end of paragraph (c) there shall be substituted “ a disqualification under Part 2 of Schedule 2 to this Act or a contravention of a requirement imposed by or under Schedule 14 to the Communications Act 2003 ”.

Repeal of previous regulatory regime E+W+S+N.I.

4 Sections 6 to 12 of the 1990 Act (which contain the mechanism for regulation in relation to licences under Part 1 of that Act) shall cease to have effect. E+W+S+N.I.

Prohibition on providing television services without a licence E+W+S+N.I.

5 (1) Section 13 of the 1990 Act (prohibition on providing television services without a licence) shall be amended as follows. E+W+S+N.I.

(2) In subsection (1) (offence of providing such service without a licence), for “service falling within section 2(1)(a), (aa), (b), (c), (cc) or (d)” there shall be substituted “ relevant regulated television service ”.

(3) After that subsection there shall be inserted—

“(1A) In subsection (1) “relevant regulated television service” means a service falling, in pursuance of section 211(1) of the Communications Act 2003, to be regulated by OFCOM, other than a television multiplex service.”

(4) In subsection (2) (exemption orders made after consulting the ITC), for “the Commission” there shall be substituted “ OFCOM ”.

Television broadcasting on Channel 3 E+W+S+N.I.

6 In section 14 of the 1990 Act (establishment of Channel 3), for “The Commission” and “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”. E+W+S+N.I.

Applications for Channel 3 licences E+W+S+N.I.

7 (1) Section 15 of the 1990 Act (applications for Channel 3 licences) shall be amended as follows. E+W+S+N.I.

(2) For “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (2), for “specified in section 16(2) or (3) (as the case may be)” there shall be substituted “that have to be imposed under Chapter 4 of Part 3 of the Communications Act 2003 by conditions relating to—

(a) the public service remit for that service,

(b) programming quotas,

(c) news and current affairs programmes, and

(d) programme production and regional programming.”

(4) In subsection (3)—

(a) in paragraph (b), for “specified in section 16(2) or (3) (as the case may be)” there shall be substituted “that have to be imposed under Chapter 4 of Part 3 of the Communications Act 2003 by conditions relating to—

(i) the public service remit for that service,

(ii) programming quotas,

(iii) news and current affairs programmes, and

(iv) programme production and regional programming”;

(b) paragraphs (c) to (e) shall be omitted.

(5) After subsection (3) there shall be inserted—

“(3A) For the purposes of subsection (1)(d)(ii)—

(a) different percentages may be specified for different accounting periods; and

(b) the percentages that may be specified for an accounting period include a nil percentage.”

(6) In subsection (4), for “paragraphs (b) to (e)” there shall be substituted “ paragraphs (b) ”.

Procedure on consideration of applications for Channel 3 licences E+W+S+N.I.

8 (1) Section 16 of the 1990 Act (consideration of applications for Channel 3 licences) shall be amended as follows. E+W+S+N.I.

(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1), for “specified in subsection (2) or (3) below (as the case may be)” there shall be substituted “that have to be imposed under Chapter 4 of Part 3 of the Communications Act 2003 by conditions relating to—

(i) the public service remit for that service,

(ii) programming quotas,

(iii) news and current affairs programmes, and

(iv) programme production and regional programming”.

(4) Subsections (2) and (3) of that section shall cease to have effect.

(5) In subsection (4) of that section—

(a) for “specified in subsection (2) or (3) (as the case may be),” there shall be substituted “that have to be imposed under Chapter 4 of Part 3 of the Communications Act 2003 by conditions relating to—

(a) the public service remit for that service,

(b) programming quotas,

(c) news and current affairs programmes, and

(d) programme production and regional programming,”;

(b) the words from “and in applying” onwards shall be omitted.

(6) Subsections (5) to (8) shall cease to have effect.

Television broadcasting on Channel 3 E+W+S+N.I.

9 (1) Section 17 of the 1990 Act (award of licences to person submitting highest bid) shall be amended as follows. E+W+S+N.I.

(2) For “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (12)(b), for “specified in section 16(2) or (3) (as the case may be)” there shall be substituted “that have to be imposed under Chapter 4 of Part 3 of the Communications Act 2003 by conditions relating to—

(i) the public service remit for that service,

(ii) programming quotas,

(iii) news and current affairs programmes, and

(iv) programme production and regional programming”.

Financial conditions of licence and failures to begin a service E+W+S+N.I.

10 In sections 17A to 19 of the 1990 Act (financial conditions in Channel 3 licences and failures to begin a service), for “The Commission” and “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”. E+W+S+N.I.

Changes of control in period after award of licence E+W+S+N.I.

11 (1) Section 21 of the 1990 Act (changes of control in period immediately after award of licence) shall be amended as follows. E+W+S+N.I.

(2) For “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (2), in the definition of “associated programme provider”, for the words from “appears” to “inclusion” there shall be substituted “ is or is likely to be involved, to a substantial extent, in the provision of the programmes included ”.

Temporary provision of Channel 3 service for an additional area E+W+S+N.I.

12 In section 22 of the 1990 Act (temporary provision of regional Channel 3 Service for additional area), for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”. E+W+S+N.I.

Appointment of members of C4 Corporation E+W+S+N.I.

13 In section 23 of the 1990 Act (appointment of C4C members), for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”. E+W+S+N.I.

Channel 4 licence E+W+S+N.I.

14 In section 24(3) of the 1990 Act (Channel 4 licence), for “the Commission” there shall be substituted “ OFCOM ”. E+W+S+N.I.

Channel 5 E+W+S+N.I.

15 In section 28 of the 1990 Act (Channel 5), for “The Commission” and “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”. E+W+S+N.I.

Application to Channel 5 of Channel 3 provisions E+W+S+N.I.

16 (1) In section 29 of the 1990 Act (application to Channel 5 of Channel 3 provisions)— E+W+S+N.I.

(a) subsection (2)(b) and the word “and” immediately preceding it, and

(b) subsection (3),

shall cease to have effect.

(2) In subsection (2)(a) of that section, for “the Commission” there shall be substituted “ OFCOM ”.

Announcement of programme Schedules E+W+S+N.I.

17 In section 37(1) of the 1990 Act (conditions requiring announcement of programme Schedules), for “the Commission” there shall be substituted “ OFCOM ”. E+W+S+N.I.

Enforcement of conditions of Channel 3, Channel 4 and Channel 5 licences E+W+S+N.I.

18 (1) In sections 40 to 42 of the 1990 Act (enforcement of licences), for “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”. E+W+S+N.I.

(2) In sections 41(1) and 42(1)(a) of that Act (which contain provisions relating to the enforcement of directions under Part 1 of that Act), after “this Part”, in each place, there shall be inserted “ , Part 5 of the Broadcasting Act 1996 or Part 3 of the Communications Act 2003 ”.

Restricted services E+W+S+N.I.

19 In section 42B(1) of the 1990 Act (licensing of restricted services), for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”. E+W+S+N.I.

Additional television services E+W+S+N.I.

20 (1) Section 48 of the 1990 Act (additional services) shall be further amended as follows. E+W+S+N.I.

(2) In subsection (1)—

(a) for “telecommunication” there shall be substituted “ electronic ”; and

(b) for paragraphs (a) and (b) there shall be substituted “ on a relevant frequency ”.

(3) In subsection (2), for paragraphs (a) and (b) there shall be substituted “any part of the signals which—

(a) is not required for the purposes of the television broadcasting service for the purposes of which the frequency has been made available; and

(b) is determined by OFCOM to be available for the provision of additional services;”.

(4) After that subsection there shall be inserted—

“(2A) For the purposes of this Part, if they consider it appropriate to do so, OFCOM may, while an additional services licence is in force, from time to time modify the determination made under subsection (2)(b) for the purposes of that licence in any manner that does not reduce the amount of spare capacity made available for the licensed services; and when so modified any such licence shall have effect accordingly.”

(5) In subsection (3)—

(a) for “The Commission” there shall be substituted “ OFCOM ”; and

(b) for “(2)(a)” there shall be substituted “ (2)(b) ”; and

(c) for paragraphs (a) to (c) there shall be substituted—

“(a) to the obligations contained in any code under section 303 of the Communications Act 2003 by virtue of subsection (5) of that section; and

(aa) to any need of the person providing the television broadcasting service in question to be able to use part of the signals carrying it for providing services (in addition to those provided for satisfying those obligations) which—

(i) are ancillary to programmes included in the service and directly related to their contents; or

(ii) relate to the promotion or listing of such programmes.”

(6) In subsection (4), for paragraphs (a) and (b) there shall be substituted—

“(a) to provide services for the satisfaction in his case of obligations mentioned in subsection (3)(a); and

(b) to provide in relation to his television broadcasting service any such services as are mentioned in subsection (3)(aa).”

(7) For subsection (6) there shall be substituted—

“(6) In this section—

“electronic signals” means signals within the meaning of section 32 of the Communications Act 2003;

“relevant frequency” means a frequency made available by OFCOM for the purposes of a television broadcasting service.”

(8) This paragraph does not affect the validity of a licence granted or last renewed before the television transfer date, or the services licensed by any such licence.

Licensing of additional television services E+W+S+N.I.

21 (1) Section 49 of the 1990 Act (licensing of additional television services) shall be amended as follows. E+W+S+N.I.

(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1), for the words from “of the following” to “48(1)(b)” there shall be substituted “ relevant frequency ”.

(4) For subsections (2) and (3) there shall be substituted—

“(1A) An additional services licence is not required for an additional service that is comprised in the public teletext service (within the meaning of Part 3 of the Communications Act 2003).”

(5) In subsection (10), at the end there shall be inserted “ and “relevant frequency” has the same meaning as in section 48. ”

Applications for additional services licences E+W+S+N.I.

22 (1) Section 50 of the 1990 Act (applications for additional services licences) shall be amended as follows. E+W+S+N.I.

(2) For “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1)(b)(ii), the words “(subject to the approval of the Secretary of State)” shall be omitted.

(4) Subsection (7) shall cease to have effect.

Procedure on application etc. for additional television services licences E+W+S+N.I.

23 (1) Section 51 of the 1990 Act (consideration of applications for licences for additional television services) shall be amended as follows. E+W+S+N.I.

(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1), for paragraph (a) (requirement of approval of technical plans) there shall be substituted—

“(a) that the technical plan submitted under section 50(3)(b), in so far as it involves the use of an electronic communications network (within the meaning of the Communications Act 2003), contains proposals that are acceptable to them; and”.

(4) Subsections (2) and (7) shall cease to have effect.

Additional payments in respect of additional television services licences E+W+S+N.I.

24 In section 52 of the 1990 Act (additional payments in respect of additional television services licences), for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”. E+W+S+N.I.

Duration of additional television services licences E+W+S+N.I.

25 (1) Section 53 of the 1990 Act (duration and renewal of additional television services licences) shall be amended as follows. E+W+S+N.I.

(2) In subsection (1), for the words before paragraph (a) there shall be substituted—

“(1) A licence to provide additional services on a frequency which is a relevant frequency for the purposes of section 48 or (in the case of a licence granted before the television transfer date) was assigned under section 65—”.

(3) In subsection (2), after “not later than” there shall be inserted “ the day falling three months before ”.

(4) In subsections (4) to (11), for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(5) In subsection (8), for the words from “payable” onwards there shall be substituted “ the cash bid of the licence holder were the licence (instead of being renewed) to be granted for the period of the renewal on an application made in accordance with section 50(3). ”

(6) After that subsection there shall be inserted—

“(8A) For the purposes of subsection (7)(b)—

(a) different percentages may be specified for different accounting periods; and

(b) the percentages that may be specified for an accounting period include a nil percentage.”

(7) After subsection (11) there shall be inserted—

“(12) A determination for the purposes of subsection (11)—

(a) must be made at least one year before the date determined; and

(b) must be notified by OFCOM to the person who holds the licence in question.

(13) In this section “the television transfer date” has the same meaning as in the Communications Act 2003.”

Additional television services not to interfere with other transmissions E+W+S+N.I.

26 (1) Section 54 of the 1990 Act (additional television services not to interfere with other transmissions) shall be amended as follows. E+W+S+N.I.

(2) In subsection (1), for “the Commission” there shall be substituted “ OFCOM ”.

(3) Subsection (2) shall cease to have effect.

Enforcement of additional television services licences E+W+S+N.I.

27 (1) Section 55 of the 1990 Act (further provision in relation to additional television services licences) shall be amended as follows. E+W+S+N.I.

(2) For “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (4) at the end there shall be inserted “ and, in the case of a licence renewed under section 53 as if the reference in section 42(4) to the end of the period for which the licence is to continue in force were a reference to the end of the period for which it has been renewed. ”

The Welsh Authority E+W+S+N.I.

28 (1) Section 58 of the 1990 Act (sources of programmes for S4C) shall be amended as follows. E+W+S+N.I.

(2) In subsection (1), for “comply with their duty under section 57(2)(b)” there shall be substituted “ fulfil so much of their public service remit in relation to S4C under paragraph 3 of Schedule 12 to the Communications Act 2003 as is contained in sub-paragraph (2)(a) and (b) of that paragraph ”.

(3) In subsection (2)(a), for “comply with section 57(3)” there shall be substituted “ fulfil so much of their public service remit in relation to S4C under paragraph 3 of Schedule 12 to the Communications Act 2003 as is contained in sub-paragraph (2)(c) of that paragraph ”.

(4) After subsection (5) there shall be inserted—

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

Distribution of licensed public service channels E+W+S+N.I.

29 (1) Section 66 of the 1990 Act (requirements relating to transmission and distribution of services) shall be amended as follows. E+W+S+N.I.

(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsections (1) and (2), for “for general reception” there shall be substituted “ so as to be available for reception by members of the public ”.

(4) After subsection (2) there shall be inserted—

“(2A) In subsections (1) and (2) “available for reception by members of the public” shall be construed in accordance with section 361 of the Communications Act 2003”.

Enforcement of licences held by BBC companies E+W+S+N.I.

30 In section 66A of the 1990 Act (enforcement of licences held by BBC companies), for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”. E+W+S+N.I.

Interpretation of Part 1 E+W+S+N.I.

31 (1) Section 71 of the 1990 Act (interpretation) shall be amended as follows. E+W+S+N.I.

(2) For the definitions of “S4C” and “on S4C” there shall be substituted—

““S4C” has the same meaning as in Part 3 of the Communications Act 2003;”.

(3) For the definitions of “television broadcasting service” and “television programme service” there shall be substituted—

““television broadcasting service”, “television licensable content service” and “television programme service” each has the same meaning as in Part 3 of the Communications Act 2003;”.

Licensing functions of OFCOM E+W+S+N.I.

32 (1) Section 85 of the 1990 Act (licensing of independent radio services) shall be amended as follows. E+W+S+N.I.

(2) In subsections (1) and (2), for “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1), for “such licences to provide independent radio services as they may determine” there shall be substituted “ licences to provide relevant independent radio services ”.

(4) Subsections (3) and (4) (duty to secure the meeting of a variety of tastes and interests and to ensure fair and effective competition) shall cease to have effect.

(5) After subsection (7) there shall be inserted—

“(8) In this section “relevant independent radio services” means the following services so far as they are services falling to be regulated under section 245 of the Communications Act 2003—

(a) sound broadcasting services;

(b) radio licensable content services;

(c) additional radio services.”

Licences under Part 3 of the 1990 Act E+W+S+N.I.

33 (1) Section 86 of the 1990 Act (licences under Part 3) shall be amended as follows. E+W+S+N.I.

(2) For “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

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

“(9) The holding of a licence by a person shall not relieve him of—

(a) any liability in respect of a failure to hold a licence under section 1 of the Wireless Telegraphy Act 1949; or

(b) any obligation to comply with requirements imposed by or under Chapter 1 of Part 2 of the Communications Act 2003 (electronic communications networks and electronic communications services).”

General licence conditions E+W+S+N.I.

34 (1) Section 87 of the 1990 Act (general licence conditions) shall be amended as follows. E+W+S+N.I.

(2) For “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1), in each of paragraphs (a) and (d), after “this Act” there shall be inserted “ , the Broadcasting Act 1996 or the Communications Act 2003 ”.

(4) In subsection (2), sub-paragraph (ii) of paragraph (b) and the word “or” immediately preceding it shall be omitted.

(5) In subsection (3) (fixing of fees), the words from “and the amount” onwards shall be omitted.

Restrictions on holding licences E+W+S+N.I.

35 (1) Section 88 of the 1990 Act (restrictions on the holding of licences) shall be amended as follows. E+W+S+N.I.

(2) For “The Authority” and “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (2) (incidental requirements to provide information), after paragraph (d) there shall be inserted—

“(da) impose conditions in a licence requiring the licence holder, if a body corporate, to give OFCOM notice, after they have occurred and irrespective of whether proposals for them have fallen to be notified, of changes, transactions or events affecting—

(i) shareholdings in the body; or

(ii) the directors of the body;

(db) impose conditions in a licence enabling OFCOM to require the licence holder to provide them with such information as they may reasonably require for determining—

(i) whether the licence holder is a disqualified person in relation to that licence by virtue of Part 2 of Schedule 2; or

(ii) whether any such requirements as are mentioned in subsection (1)(b) have been and are being complied with by or in relation to the licence holder;”.

(4) In subsection (6)—

(a) in paragraph (a), for “complained of” there shall be substituted “ constituting their grounds for revoking the licence ”; and

(b) in paragraph (b)(i), for “Parts III and IV of Schedule 2” there shall be substituted “ the requirements imposed by or under Schedule 14 to the Communications Act 2003 ”.

(5) In subsection (6A)—

(a) paragraph (a) shall cease to have effect; and

(b) in paragraph (b), for “Part IV of that Schedule” there shall be substituted “ Part 1 of Schedule 14 to the Communications Act 2003 ”.

(6) Subsection (6B) shall cease to have effect.

(7) In subsection (7), for the words from “a failure” to the end of paragraph (c) there shall be substituted “ a disqualification under Part 2 of Schedule 2 to this Act or a contravention of a requirement imposed by or under Schedule 14 to the Communications Act 2003, ”.

Disqualification of persons convicted of transmission offences E+W+S+N.I.

36 (1) Section 89 of the 1990 Act (offences giving rise to disqualification) shall be amended as follows. E+W+S+N.I.

(2) In subsection (1), for paragraph (a) there shall be substituted—

“(a) an offence under section 1(1) of the Wireless Telegraphy Act 1949 (“the 1949 Act”) consisting in the establishment or use of a station for wireless telegraphy, or the installation or use of wireless telegraphy apparatus, for the purpose of making a broadcast (within the meaning of section 9 of the Marine, &c., Broadcasting (Offences) Act 1967);

(aa) an offence under section 1A of the 1949 Act (keeping wireless telegraphy station or apparatus available for unauthorised use) where the relevant contravention of section 1 would constitute an offence falling within paragraph (a);

(ab) an offence under section 1B or 1C of the 1949 Act (unlawful broadcasting offences);”.

(3) In subsection (3), for the words from “concerned” onwards there shall be substituted “concerned in—

(a) the provision of the licensed service or the making of programmes included in it; or

(b) the operation of a station for wireless telegraphy used for broadcasting the service.”

(4) This paragraph does not impose a disqualification in respect of any offence committed before the commencement of this paragraph.

Offence of providing regulated radio services E+W+S+N.I.

37 (1) Section 97 of the 1990 Act (prohibition on providing services without a licence) shall be amended as follows. E+W+S+N.I.

(2) In subsection (1), for the words from “independent” to “84(1)(d), (e) or (f)” there shall be substituted “ relevant regulated radio service ”.

(3) After that subsection there shall be inserted—

“(1A) In subsection (1) “relevant regulated radio service” means a service falling to be regulated by OFCOM under section 245 of the Communications Act 2003, other than a radio multiplex service.”

(4) In subsection (2) (exemption orders made after consulting the Radio Authority), for “the Authority” there shall be substituted “ OFCOM ”.

Applications for national licences E+W+S+N.I.

38 (1) Section 98 of the 1990 Act (applications for national licences) shall be amended as follows. E+W+S+N.I.

(2) For “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (3)(a) (proposals to accompany application)—

(a) the word “both”, and

(b) sub-paragraph (ii) and the word “and” immediately preceding it,

shall be omitted.

(4) After subsection (3) there shall be inserted—

“(3A) For the purposes of subsection (1)(d)(ii)—

(a) different percentages may be specified for different accounting periods; and

(b) the percentages that may be specified for an accounting period include a nil percentage.”

(5) In subsection (4) (provision of further information), after “paragraphs (a),” there shall be inserted “ (aa), ”.

(6) In subsection (6)(b) (publication of details of successful applicant), after “subsection (3)(a)” there shall be inserted “ and (aa) ”.

Consideration of applications for a national licence E+W+S+N.I.

39 (1) Section 99 of the 1990 Act (consideration of applications for national licence) shall be amended as follows. E+W+S+N.I.

(2) For “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In paragraph (a) of subsection (1) (proposals to accompany application)—

(a) the word “both”, and

(b) sub-paragraph (ii) and the word “and” immediately preceding it,

shall be omitted.

(4) In paragraph (b) of that subsection, after “maintain that service” there shall be inserted “ and any proposed simulcast radio service corresponding to that service ”.

Award of national licences E+W+S+N.I.

40 In section 100 of the 1990 Act (award of national licences to person submitting highest cash bid), for “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”. E+W+S+N.I.

Failure to begin providing licensed service E+W+S+N.I.

41 (1) Section 101 of the 1990 Act (failure to begin providing licensed service) shall be amended as follows. E+W+S+N.I.

(2) For “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1)—

(a) in paragraph (a) for “the service in question” there shall be substituted “ the licensed national service or that he does not intend to provide a corresponding simulcast radio service that he is required to provide by a condition imposed under section 100A ”; and

(b) in paragraph (b), for “that service” there shall be substituted “ the licensed national service or any such simulcast radio service ”.

(4) In subsection (2), for “the service in question” there shall be substituted “ the licensed national service or the simulcast radio service ”.

Additional payments in respect of national licences E+W+S+N.I.

42 In section 102 of the 1990 Act (additional payments in respect of national licences), for “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”. E+W+S+N.I.

Restrictions affecting change in control of holder of national licence E+W+S+N.I.

43 (1) Section 103 of the 1990 Act (restrictions on change of control of national licence) shall be amended as follows. E+W+S+N.I.

(2) For “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (2) (interpretation)—

(a) in the definition of “associated programme provider”, for the words from “appears” to “inclusion” there shall be substituted “ is or is likely to be involved, to a substantial extent, in the provision of the programmes included ”; and

(b) in the words after the definition of “the relevant period”, for the words from “as if” onwards there shall be substituted “ as it has effect for the purposes of that Schedule. ”

Renewal of national licences E+W+S+N.I.

44 (1) Section 103A of the 1990 Act (renewal of national licences) shall be amended as follows. E+W+S+N.I.

(2) For “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1), for “eight” there shall be substituted “ twelve ”.

(4) In subsection (2), after “not later than” there shall be inserted “ the day falling three months before ”.

(5) In subsection (3), paragraph (a) and in paragraph (b) the words “in any other case” shall cease to have effect.

(6) In subsection (4), for paragraph (b) there shall be substituted—

“(b) the applicant gave notice to OFCOM, within the period of one month beginning with the commencement of section 42 of the Broadcasting Act 1996, of his intention to provide a simulcast radio service, and”.

(7) For subsection (7) there shall be substituted—

“(7) The amount determined under subsection (6)(b) must be equal to the amount which, in OFCOM’s opinion, would have been the cash bid of the licence holder were the licence (instead of being renewed) to be granted for the period of the renewal on an application made in accordance with section 98.

(7A) For the purposes of subsection (6)(c)—