C1Part III Independent Radio Services
C1Chapter II Sound Broadcasting Services
Local and other services
104 Applications for other licences.
1
Where F5OFCOM propose to grant a licence to provide a local service, they shall publish, in such manner as they consider appropriate, a notice—
a
stating that they propose to grant such a licence;
b
specifying the area or locality in the United Kingdom for which the service is to be provided;
c
inviting applications for the licence and specifying the closing date for applications; and
d
stating the fee payable on any application made in pursuance of the notice.
2
Any application made in pursuance of a notice under subsection (1) must be in writing and accompanied by—
a
the fee specified in the notice under paragraph (d) of that subsection;
b
the applicant’s proposals for providing a service that would—
i
cater for the tastes and interests of persons living in the area or locality for which it would be provided or for any particular tastes and interests of such persons, and
ii
broaden the range of programmes available by way of local services to persons living in that area or locality;
c
such information as F5OFCOM may reasonably require—
i
as to the applicant’s present financial position and his projected financial position during the period for which the licence would be in force, and
ii
as to the arrangements which the applicant proposes to make for, and in connection with, the transmission of his proposed service; and
d
such other information as F5OFCOM may reasonably require for the purpose of considering the application.
3
At any time after receiving such an application and before determining it F5OFCOM may require the applicant to furnish additional information under subsection (2)(b), (c) or (d).
4
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6
7
In this section and sections 105 and 106 “programme” does not include an advertisement.
104AF2 Renewal of local licences.
1
F221A
A local licence may be renewed under this section only if it is granted before the day on which section 104AA comes into force.
2
No application for the renewal of a local licence under subsection (1) may be made before F12OFCOM first publish a notice pursuant to section 50(2) of the Broadcasting Act 1996 inviting applications for a licence to provide a relevant local radio multiplex service.
C23
Subject to subsection (2), an application for the renewal of a local licence under subsection (1) may be made by the licence holder not earlier than three years before the date on which it would otherwise cease to be in force and not later than F9the day falling three months before the relevant date.
4
The applicant must, in his application or at any time before the consideration of his application, nominate—
a
a local digital sound programme service provided or to be provided by him, and
b
a relevant local radio multiplex service F31or a relevant small-scale radio multiplex service,
but may not nominate together a local digital sound programme service and a local radio multiplex service F30or a local digital sound programme service and a small-scale radio multiplex service if another local licence held by him includes a condition in pursuance of subsection (12) relating to the broadcasting of that local digital sound programme service by that local radio multiplex service F29or (as the case may be) that small-scale radio multiplex service.
5
Where an application for the renewal of a local licence has been duly made to F12OFCOM, they shall grant the application if—
a
they are satisfied that the applicant would, if his licence were renewed, provide a local service which complied with the conditions included in the licence in pursuance of section 106 (whether as originally imposed or as varied under that section), F11...
b
the nominated local digital sound programme service provided by the applicant is being broadcast by means of the nominated local radio multiplex service F28or the nominated small-scale radio multiplex service.
F10c
they are satisfied that the period for which the nominated local digital sound programme service will be available for reception and the times at which it will be available will not be significantly different, week by week, from those for which and at which the licensed local service will be broadcast;
6
Where the condition specified in subsection (5)(a) is satisfied, F12OFCOM may grant the application even though the condition specified in subsection (5)(b) is not satisfied if—
a
the applicant holds a licence to provide local digital sound programme services,
b
a licence to provide the nominated local radio multiplex service F27or the nominated small-scale radio multiplex service has been awarded, and
c
it appears to F12OFCOM that, under a contract between the applicant and the person to whom that licence has been awarded, the applicant is obliged to provide the nominated local digital sound programme service for broadcasting by means of the nominated local radio multiplex service F27or the nominated small-scale radio multiplex service.
7
F12OFCOM may in any case postpone consideration of the application until the relevant date.
8
If, at the relevant date, the condition specified in subsection (5)(b) is not satisfied, and any of the conditions specified in subsection (6) is not satisfied, F12OFCOM may postpone consideration of the application for such period not exceeding twelve months as they think appropriate.
9
Where F12OFCOM postpone consideration of an application under this section for any period beyond the relevant date (the “postponement period”), they shall extend the period for which the licence is in force by a period equal to the postponement period; and section 86(3) shall not limit the powers of F12OFCOM under this subsection.
10
On the grant of any application under this section F12OFCOM shall—
a
where the nominated local digital sound programme service provided by the applicant is not being broadcast by means of the nominated local radio multiplex service F26or the nominated small-scale radio multiplex service, determine a date by which that service must have begun to be so broadcast; and
b
specify a fee payable to F12OFCOM in respect of the renewal.
11
Where F12OFCOM have granted a person’s application under this section they shall formally renew his licence as soon afterwards as is reasonably practicable; and they shall not so renew his licence unless they have notified him of—
a
any date determined by them under subsection (10)(a), and
b
the renewal fee specified by them under subsection (10)(b),
and he has, within such period as is specified in that notification, notified them that he consents to the licence being renewed on those terms.
12
Where F12OFCOM renew a licence under this section they shall include in the licence as renewed a condition requiring the licence holder to do all that he can to ensure that the nominated local digital sound programme service is broadcast by means of the nominated local radio multiplex service F25or the nominated small-scale radio multiplex service throughout the period beginning with whichever is the later of—
a
the date on which the licence would expire if not renewed, and
b
any date determined by them under subsection (10)(a),
and ending with the date on which the licence (as renewed) is to expire.
F612A
In the case of a pre-transfer local licence (including one for a period extended under section 253 of the Communications Act 2003)—
a
the licence is not to be capable of being renewed under this section if it has already been renewed under this section before the radio transfer date; and
b
on the renewal of the licence, it shall be the duty of OFCOM to secure that the renewed licence contains only such provision as would be included in a local licence granted by OFCOM under this Part after the radio transfer date.
13
In this section—
a
“local digital sound programme service” has the same meaning as in Part II of the Broadcasting Act 1996;
b
“nominated” means nominated by the applicant under subsection (4);
c
“relevant date”, in relation to a local licence, means the date which F12OFCOM determine to be that by which they would need to publish a notice under section 104(1) if they were to grant, as from the date on which that licence would expire if not renewed, a fresh licence to provide the local service formerly provided under that licence; F24...
d
“relevant local radio multiplex service”, in relation to a local licence, means a local radio multiplex service (within the meaning of Part II of the Broadcasting Act 1996) with a F33the coverage area for a local service or local radio multiplex service is the area determined by OFCOM to be the area in the United Kingdom within which the 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; and
F32e
“relevant small-scale radio multiplex service”, in relation to a local licence, means a small-scale radio multiplex service (within the meaning of section 258A of the Communications Act 2003) with a coverage area which to a significant extent includes the coverage area of the local service provided under the local licence; and for this purpose the coverage area for a local service or small-scale radio multiplex service is the area determined by OFCOM to be the area in the United Kingdom within which the 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.
C3F714
A determination for the purposes of subsection (13)(c)—
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.
104AAF20Further renewal of local licences
1
A local licence may be renewed under this section on F35three occasions for a period of not more than 7 years F23(on the F36first occasion), 5 years (on the second occasion)F37or 10 years (on the third occasion) beginning with the date of renewal (subject to the following provisions of this section and section 104AB).
2
A local licence may be renewed under this section only if—
a
it has been renewed under section 104A, or
b
it is granted on or after the day on which this section comes into force F38....
3
Subsections (3) to (12), (13) and (14) of section 104A apply in relation to the renewal of a licence under this section as they apply in relation to the renewal of a licence under section 104A, subject to subsections (4) F39, (4A) and (5).
4
Section 104A(3) (as applied) has effect as if the words “Subject to subsection (2)” were omitted.
F344A
Section 104A(14) (as applied) does not prevent the determination of a date falling less than one year after the making of the determination where—
a
the renewal of the licence in question would be the third renewal under this section,
b
OFCOM consider that the relevant date for the purposes of section 104A (as applied) is a date which is not more than 15 months after the day on which this subsection comes into force, and
c
the determination is made as soon as practicable after that day.
5
In the case of an approved licence, if an applicant for renewal of the licence under this section makes a national nomination in accordance with section 104AB, section 104A (as applied) has effect as if—
a
subsections (4) and (13)(b) were omitted,
b
references to the nominated local digital sound programme service were references to the national digital sound programme service nominated under section 104AB, F40...
c
references to the nominated local radio multiplex service were references to the national radio multiplex service nominated under section 104AB F41, and
d
references to the nominated small-scale radio multiplex service were omitted.
6
In this section and sections 104AB and 104AC—
“approved licence” means a local licence approved by OFCOM for the purposes of this section;
“local digital sound programme service”, “local radio multiplex service”, “national digital sound programme service” and “national radio multiplex service” have the same meanings as in Part 2 of the Broadcasting Act 1996.
F42“small-scale radio multiplex service” has the same meaning as in section 258A of the Communications Act 2003.
7
Before approving a licence for the purposes of this section, OFCOM must publish a document specifying—
a
the licence proposed to be approved, and
b
a period in which representations may be made to OFCOM.
104ABRenewal under section 104AA: nomination of national services
1
For the purposes of section 104AA, a “national nomination” by an applicant for the renewal of an approved licence is the nomination of—
a
a national digital sound programme service provided or to be provided by the applicant, and
b
a national radio multiplex service.
2
A national nomination must be made in the application for the renewal of the approved licence or before OFCOM consider the application.
3
The applicant may not nominate a national digital sound programme service unless OFCOM are satisfied that, if the application in question were granted, the programmes included in that service in each calendar month would include at least 80% of the programmes included in the service provided under the approved licence.
4
A national nomination must specify the other approved licences (if any) in relation to which, in reliance on the nomination, an application may be made under section 104AC.
104ACVariation of conditions relating to digital services
1
This section applies where—
a
a licence that is an approved licence has been renewed under section 104A and includes a local digital services condition,
b
an application has been made under section 104AA for the renewal of another approved licence and the applicant has made a national nomination under section 104AB, and
c
the nomination specifies the licence mentioned in paragraph (a) in accordance with section 104AB(4).
2
OFCOM may, if the requirements of subsections (3) and (4) are met, vary the licence mentioned in subsection (1)(a) by—
a
removing the local digital services condition, and
b
adding a national digital services condition.
3
OFCOM must have received an application for the variation from the licence holder.
4
OFCOM must be satisfied that, if they varied the licence, the programmes included in the nominated national digital sound programme service in each calendar month would include at least 80% of the programmes included in the service provided under that licence.
5
In this section—
“local digital services condition” means a condition requiring the licence holder to do all that the licence holder can to ensure that a local digital sound programme service is broadcast by means of a local radio multiplex service;
“national digital services condition” means a condition requiring the licence holder to do all that the licence holder can to ensure that the nominated national digital sound programme service is broadcast by means of the nominated national radio multiplex service until the day on which the licence (as renewed under section 104A) is to expire;
“nominated” means nominated in the nomination referred to in subsection (1)(b).
104BF3 Special application procedure for local licences.
1
Where—
a
a local licence is due to expire (otherwise than by virtue of section 110), F14and
F15b
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c
F17OFCOM propose to grant a further licence to provide the service in question,
F17OFCOM may if they think fit publish a notice under subsection (2) instead of a notice under section 104(1).
F131A
In subsection (1)(c) the reference to the service in question, in relation to a case in which it is a pre-transfer local licence that is due to expire, is a reference to the equivalent local service for which a licence is capable of being granted at times on or after the radio transfer date.
2
A notice under this subsection is a notice—
a
stating that F17OFCOM propose to grant a further licence to provide a specified local service,
b
specifying the area or locality in the United Kingdom for which the service is to be provided,
c
inviting declarations of intent to apply for a licence to provide the service,
d
specifying the closing date for such declarations, and
e
specifying—
i
the application fee payable on any declaration made in pursuance of the notice, and
ii
a deposit of such amount as F17OFCOM may think fit.
3
A declaration of intent made in pursuance of a notice under subsection (2) must be in writing and accompanied by the application fee and deposit specified under subsection (2)(e)(i) and (ii).
4
Where F17OFCOM receive a declaration of intent in accordance with the provisions of this section from a person other than the licence holder in relation to the service in question, they shall—
a
publish a notice under section 104(1),
b
specify—
i
in relation to persons who have made a declaration of intent in accordance with the provisions of this section, no further application fee, and
ii
in relation to all other applicants, an application fee of the same amount as the fee referred to in subsection (2)(e)(i), and
c
repay the deposit referred to in subsection (2)(e)(ii) to every person—
i
who has made a declaration of intent in accordance with the provisions of this section, and
ii
who duly submits an application in pursuance of the notice referred to in paragraph (a).
5
Where F17OFCOM receive a declaration of intent in accordance with the provisions of this section from the licence holder in relation to the service in question, and no such declaration from any other person, they shall—
a
invite the licence holder to apply for the licence in such manner as they may determine (but without requiring any further application fee), and
b
on receiving an application duly made by him, repay to him the deposit referred to in subsection (2)(e)(ii).
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F167
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105 Special requirements relating to grant of local licences.
Where F19OFCOM have published a notice under section 104(1), they shall, in determining whether, or to whom, to grant the local licence in question, have regard to the following matters, namely—
a
the ability of each of the applicants for the licence to maintain, throughout the period for which the licence would be in force, the service which he proposes to provide;
b
the extent to which any such proposed service would cater for the tastes and interests of persons living in the area or locality for which the service would be provided, and, where it is proposed to cater for any particular tastes and interests of such persons, the extent to which the service would cater for those tastes and interests;
c
the extent to which any such proposed service would broaden the range of programmes available by way of local services to persons living in the area or locality for which it would be provided, and, in particular, the extent to which the service would cater for tastes and interests different from those already catered for by local services provided for that area or locality; and
F18d
the extent to which there is evidence that, amongst persons living in that area or locality, there is a demand for, or support for, the provision of the proposed service.
Pt. III: transfer of functions (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 1 para. 5 (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)