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Communications Act 2003 (Chapter 21, as updated up to March 19, 2021), 联合王国

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主要文本 主要文本 英语 Communications Act 2003 (Chapter 21, as updated up to March 19, 2021)         
 Communications Act 2003 (Chapter 21, as updated up to November 1, 2019)

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Communications Act 2003 2003 CHAPTER 21

An Act to confer functions on the Office of Communications; to make provision about the regulation of the provision of electronic communications networks and services and of the use of the electro-magnetic spectrum; to make provision about the regulation of broadcasting and of the provision of television and radio services; to make provision about mergers involving newspaper and other media enterprises and, in that connection, to amend the Enterprise Act 2002; and for connected purposes. [17th July 2003]

BE IT ENACTED by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Modifications etc. (not altering text) C1 Act: specified provisions extended (Guernsey) (with modifications) (with effect in accordance with

art. 1(4)(5) of the amending S.I.) by Communications (Bailiwick of Guernsey) Order 2003 (S.I. 2003/3195), art. 6, Sch. 2 (as amended (26.3.2004) by Communications (Bailiwick of Guernsey) (No.2) Order 2004 (S.I. 2004/715), art. 3, Sch.; and (23.4.2004) by Communications (Bailiwick of Guernsey) (No.3) Order 2004 (S.I. 2004/1116), art. 2; and (31.3.2005) by The Communications (Bailiwick of Guernsey) (Amendment) Order 2005 (S.I. 2005/856), art. 2)

C2 Act: amendment to earlier affecting provision S.I. 2003/3195, Sch. 2 (5.12.2012) by The Communications (Bailiwick of Guernsey) (Amendment) Order 2012 (S.I. 2012/2688), arts. 2, 3

C3 Act: specified provisions extended (Jersey) (with modifications) (with effect in accordance with art. 1(3)-(5) of the amending S.I.) by Communications (Jersey) Order 2003 (S.I. 2003/3197), art. 6, Sch. 2 (as amended (27.2.2004) by Broadcasting and Communications (Jersey) Order 2004 (S.I. 2004/308), art. 6(3), Sch. 2; and (26.3.2004) by Broadcasting and Communications (Jersey) (No.2) Order 2004 (S.I. 2004/716), art. 3; and (23.4.2004) by Broadcasting and Communications (Jersey) (No.3) Order 2004 (S.I. 2004/1114), art. 2; and (31.3.2005) by The Communications (Jersey) (Amendment) Order 2005 (S.I. 2005/855), art. 2)

C4 Act: specified provisions extended (Isle of Man) (with modifications) (with effect in accordance with art. 1(3)(4) of the amending S.I.) by Communications (Isle of Man) Order 2003 (S.I. 2003/3198), art. 6, Sch. 2 (as amended (27.2.2004) by Broadcasting and Communications (Isle of Man) Order 2004

2 Communications Act 2003 (c. 21) Part 1 – Functions of OFCOM

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(S.I. 2004/309), art. 2(2), Sch. Pt. 2; and (26.3.2004) by Broadcasting and Communications (Isle of Man) (No.2) Order 2004 (S.I. 2004/718), art. 2)

C5 Act: amendment to earlier affecting provision S.I. 2003/3198, art. 6, Sch. 2 (8.2.2007) by Wireless Telegraphy (Isle of Man) Order 2007 (S.I. 2007/278), art. 3, Sch. 2 Pt. 1

C6 Act: specified provisions extended (Guernsey) (with modifications) (27.2.2004) by Communications (Bailiwick of Guernsey) Order 2004 (S.I. 2004/307), art. 4, Sch. (with art. 1(2))

C7 Act applied (with modifications) (20.7.2004) by Community Radio Order 2004 (S.I. 2004/1944), art. 4, Sch. Pt. 2

C8 Act: amendment to earlier affecting provision S.I. 2004/1944, art. 4, Sch. Pt. 2 (22.1.2010) by The Community Radio (Amendment) Order 2010 (S.I. 2010/118), arts. 1, 5

C9 Act: amendment to earlier affecting provision S.I. 2004/1944, art. 4, Sch. Pt. 2 (27.3.2015) by The Community Radio (Amendment) Order 2015 (S.I. 2015/1000), arts. 3, 8 (with art. 9)

C10 Act: amendment to earlier affecting provision S.I. 2004/1944, art. 4, Sch. Pt. 2 (25.10.2019) by The Small-scale Radio Multiplex and Community Digital Radio Order 2019 (S.I. 2019/1387), arts. 1, 7

C11 Act modified (3.5.2007) by National Assembly for Wales Commission (Crown Status) Order 2007 (S.I. 2007/1118), art. 7

C12 Act applied (with modifications) (5.12.2012) by The Community Radio (Guernsey) Order 2012 (S.I. 2012/2690), art. 4, Sch.

C13 Act modified (Guernsey) (19.3.2013) by The Community Radio (Guernsey) Order 2013 (S.I. 2013/243), art. 5, Sch. Pt. 2

C14 Act: power to extend conferred (27.4.2017) by Digital Economy Act 2017 (c. 30), ss. 118(1), 119(7)(8) (d)

C15 Act applied by S.I. 1991/1220 (N.I. 11), art. 104(5) (as substituted (28.12.2017) by The Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017 (S.I. 2017/1285), reg. 1(1), Sch. 1 para. 28(2)(c))

C16 Act modified (temp.) (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 49 (with Pt. 7)

PART 1

FUNCTIONS OF OFCOM

Transferred and assigned functions

1 Functions and general powers of OFCOM

(1) The Office of Communications (“OFCOM”) shall have the following functions— (a) the functions transferred to OFCOM under section 2; and (b) such other functions as may be conferred on OFCOM by or under any

enactment (including this Act).

(2) OFCOM shall also have any functions in relation to telephone numbers that are conferred on them by the law of the Isle of Man or of any of the Channel Islands.

(3) OFCOM may do anything which appears to them to be incidental or conducive to the carrying out of their functions, including borrow money.

(4) OFCOM are not to borrow money except with the consent of the Secretary of State, or in accordance with a general authorisation given by him.

(5) OFCOM’s powers under subsection (3) include, in particular—

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(a) power to undertake research and development work in connection with any matter in relation to which they have functions;

(b) power to promote the carrying out of such research and development by others, or otherwise to arrange for it to be carried out by others;

(c) power to institute and carry on criminal proceedings in England and Wales or Northern Ireland for an offence relating to a matter in relation to which they have functions; and

(d) power, in such cases and in such circumstances as they may think fit, to make payments (where no legal liability arises) to persons adversely affected by the carrying out by OFCOM of any of their functions.

(6) In exercise of their powers under subsection (3), OFCOM must establish and maintain separate offices in each of the following parts of the United Kingdom—

(a) England; (b) Wales; (c) Scotland; and (d) Northern Ireland.

(7) Part 2 of the Deregulation and Contracting Out Act 1994 (c. 40) (contracting out) is to have effect in relation to the functions conferred on OFCOM by or under any enactment as if—

(a) OFCOM were an office holder within the meaning of that Part; and (b) a power of OFCOM to make subordinate legislation were excluded from

section 69 of that Act to the extent only that it is exercisable by statutory instrument.

(8) In this section “telephone numbers” has the same meaning as in Chapter 1 of Part 2.

Commencement Information I1 S. 1(1) (2) (4) (5)(a) (b) (d) (6)-(8) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art.

11) I2 S. 1(3) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I3 S. 1(3) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with

art. 11) I4 S. 1(5)(c) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I5 S. 1(5)(c) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1

(with art. 11)

2 Transfer of functions of pre-commencement regulators

(1) As from such date as the Secretary of State may appoint for the coming into force of this section, the functions that are set out in Schedule 1 (functions of the Secretary of State and of the pre-commencement regulators) shall become functions of OFCOM in accordance with that Schedule.

(2) References in any enactment to a person who is a person from whom functions are transferred by virtue of this section are to have effect, so far as necessary for the purposes of the transfers, as references to OFCOM.

4 Communications Act 2003 (c. 21) Part 1 – Functions of OFCOM

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(3) The functions of OFCOM are to include the carrying out of the transferred functions, at times after the time when they become functions of OFCOM, in relation to anything occurring before that time.

(4) The provisions of this section have effect subject to— (a) the modifications made by this Act of the enactments relating to the

transferred functions; and (b) any express transitional or consequential provisions made by or under this Act

in relation to those enactments.

Commencement Information I6 S. 2 in force at 29.12.2003 for specified purposes by S.I. 2003/3142, art. 3(1)(3), Sch. 1 (with art. 11) I7 S. 2 in force at 1.4.2004 in so far as not already in force by S.I. 2003/3142, art. 4(2), Sch. 2 (with art.

11) (as amended (4.3.2004) by S.I. 2004/545, art. 2(2)(3)(a))

[F1Strategic priorities

Textual Amendments F1 Ss. 2A-2C and cross-heading inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 98(1),

118(6); S.I. 2017/765, reg. 2(aa)

2A Statement of strategic priorities

(1) The Secretary of State may designate a statement for the purposes of this section if the requirements set out in section 2C (consultation and parliamentary procedure) are satisfied.

(2) The statement is a statement prepared by the Secretary of State that sets out strategic priorities of Her Majesty's Government in the United Kingdom relating to—

(a) telecommunications, (b) the management of the radio spectrum, and (c) postal services.

(3) The statement may, among other things, set out particular outcomes identified with a view to achieving the strategic priorities.

(4) This section does not restrict the Secretary of State's powers under any other provision of this Act or any other enactment.

(5) A statement designated under subsection (1) must be published in such manner as the Secretary of State considers appropriate.

(6) A statement designated under subsection (1) may be amended (including by replacing the whole or a part of the statement with new content) by a subsequent statement designated under that subsection, and this section and sections 2B and 2C apply in relation to any such subsequent statement as in relation to the original statement.

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(7) Except as provided by subsection (8), no amendment may be made under subsection (6) within the period of 5 years beginning with the day on which a statement was most recently designated under subsection (1).

(8) An earlier amendment may be made under subsection (6) if— (a) since that day—

(i) a Parliamentary general election has taken place, or (ii) there has been a significant change in the policy of Her Majesty's

government affecting any matter mentioned in subsection (2)(a), (b) or (c), or

(b) the Secretary of State considers that the statement, or any part of it, conflicts with any of OFCOM's general duties (within the meaning of section 3).

2B Duties of OFCOM in relation to strategic priorities

(1) This section applies where a statement has been designated under section 2A(1).

(2) OFCOM must have regard to the statement when carrying out— (a) their functions relating to telecommunications, (b) their functions under the enactments relating to the management of the radio

spectrum, and (c) their functions relating to postal services.

(3) OFCOM must within the period of 40 days beginning with the day on which the statement is designated, or such longer period as the Secretary of State may allow—

(a) explain in writing what they propose to do in consequence of the statement, and

(b) publish a copy of that explanation in such manner as OFCOM consider appropriate.

(4) OFCOM must, as soon as practicable after the end of— (a) the period of 12 months beginning with the day on which the first statement

is designated under section 2A(1), and (b) every subsequent period of 12 months,

publish a review of what they have done during the period in question in consequence of the statement.

2C Consultation and parliamentary procedure

(1) This section sets out the requirements that must be satisfied in relation to a statement before the Secretary of State may designate it under section 2A.

(2) The Secretary of State must consult the following on a draft of the statement— (a) OFCOM, and (b) such other persons as the Secretary of State considers appropriate.

(3) The Secretary of State must allow OFCOM a period of at least 40 days to respond to any consultation under subsection (2)(a).

(4) After that period has ended the Secretary of State— (a) must make any changes to the draft that appear to the Secretary of State to be

necessary in view of responses to the consultation, and

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(b) must then lay the draft before Parliament.

(5) The Secretary of State must then wait until the end of the 40-day period and may not designate the statement if, within that period, either House of Parliament resolves not to approve it.

(6) “The 40-day period” is the period of 40 days beginning with the day on which the draft is laid before Parliament (or, if it is not laid before each House on the same day, the later of the days on which it is laid).

(7) When calculating the 40-day period, ignore any period during which Parliament is dissolved or prorogued or during which both Houses are adjourned for more than 4 days.]

General duties in carrying out functions

3 General duties of OFCOM

(1) It shall be the principal duty of OFCOM, in carrying out their functions— (a) to further the interests of citizens in relation to communications matters; and (b) to further the interests of consumers in relevant markets, where appropriate

by promoting competition.

(2) The things which, by virtue of subsection (1), OFCOM are required to secure in the carrying out of their functions include, in particular, each of the following—

(a) the optimal use for wireless telegraphy of the electro-magnetic spectrum; (b) the availability throughout the United Kingdom of a wide range of electronic

communications services; (c) the availability throughout the United Kingdom of a wide range of television

and radio services which (taken as a whole) are both of high quality and calculated to appeal to a variety of tastes and interests;

(d) the maintenance of a sufficient plurality of providers of different television and radio services;

(e) the application, in the case of all television and radio services, of standards that provide adequate protection to members of the public from the inclusion of offensive and harmful material in such services;

(f) the application, in the case of all television and radio services, of standards that provide adequate protection to members of the public and all other persons from both—

(i) unfair treatment in programmes included in such services; and (ii) unwarranted infringements of privacy resulting from activities carried

on for the purposes of such services.

(3) In performing their duties under subsection (1), OFCOM must have regard, in all cases, to—

(a) the principles under which regulatory activities should be transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and

(b) any other principles appearing to OFCOM to represent the best regulatory practice.

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(4) OFCOM must also have regard, in performing those duties, to such of the following as appear to them to be relevant in the circumstances—

(a) the desirability of promoting the fulfilment of the purposes of public service television broadcasting in the United Kingdom;

(b) the desirability of promoting competition in relevant markets; (c) the desirability of promoting and facilitating the development and use of

effective forms of self-regulation; (d) the desirability of encouraging investment and innovation in relevant markets; (e) the desirability of encouraging the availability and use of high speed data

transfer services throughout the United Kingdom; (f) the different needs and interests, so far as the use of the electro-magnetic

spectrum for wireless telegraphy is concerned, of all persons who may wish to make use of it;

(g) the need to secure that the application in the case of television and radio services of standards falling within subsection (2)(e) and (f) is in the manner that best guarantees an appropriate level of freedom of expression;

(h) the vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection;

(i) the needs of persons with disabilities, of the elderly and of those on low incomes;

(j) the desirability of preventing crime and disorder; (k) the opinions of consumers in relevant markets and of members of the public

generally; (l) the different interests of persons in the different parts of the United Kingdom,

of the different ethnic communities within the United Kingdom and of persons living in rural and in urban areas;

(m) the extent to which, in the circumstances of the case, the furthering or securing of the matters mentioned in subsections (1) and (2) is reasonably practicable.

(5) In performing their duty under this section of furthering the interests of consumers, OFCOM must have regard, in particular, to the interests of those consumers in respect of choice, price, quality of service and value for money.

(6) Where it appears to OFCOM, in relation to the carrying out of any of the functions mentioned in section 4(1), that any of their general duties conflict with one or more of their duties under sections 4, 24 and 25, priority must be given to their duties under those sections.

[F2(6A) Where it appears to OFCOM, in relation to the carrying out of any of their functions in relation to postal services, that any of their general duties conflict with their duty under section 29 of the Postal Services Act 2011 (duty to secure provision of universal postal service), priority must be given to their duty under that section.]

(7) Where it appears to OFCOM that any of their general duties conflict with each other in a particular case, they must secure that the conflict is resolved in the manner they think best in the circumstances.

(8) Where OFCOM resolve a conflict in an important case between their duties under paragraphs (a) and (b) of subsection (1), they must publish a statement setting out—

(a) the nature of the conflict; (b) the manner in which they have decided to resolve it; and

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(c) the reasons for their decision to resolve it in that manner.

(9) Where OFCOM are required to publish a statement under subsection (8), they must— (a) publish it as soon as possible after making their decision but not while

they would (apart from a statutory requirement to publish) be subject to an obligation not to publish a matter that needs to be included in the statement; and

(b) so publish it in such manner as they consider appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters to which the decision relates.

(10) Every report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (c. 11) (OFCOM’s annual report) for a financial year must contain a summary of the manner in which, in that year, OFCOM resolved conflicts arising in important cases between their general duties.

(11) A case is an important case for the purposes of subsection (8) or (10) only if— (a) it involved one or more of the matters mentioned in subsection (12); or (b) it otherwise appears to OFCOM to have been of unusual importance.

(12) Those matters are— (a) a major change in the activities carried on by OFCOM; (b) matters likely to have a significant impact on persons carrying on businesses

in any of the relevant markets; or (c) matters likely to have a significant impact on the general public in the United

Kingdom or in a part of the United Kingdom.

(13) This section is subject to sections 370(11) and 371(11) of this Act and to section 119A(4) of the Enterprise Act 2002 (c. 40) (which applies to functions conferred on OFCOM by Chapter 2 of Part 5 of this Act).

(14) In this section— “citizens” means all members of the public in the United Kingdom; “communications matters” means the matters in relation to which OFCOM

have functions; “general duties”, in relation to OFCOM, means—

(a) their duties under subsections (1) to (5); and (b) the duty which, under section 107(5), is to rank equally for the purposes

of subsections (6) and (7) with their duties under this section; “relevant markets” means markets for any of the services, facilities,

apparatus or directories in relation to which OFCOM have functions.

Textual Amendments F2 S. 3(6A) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 57; S.I.

2011/2329, art. 3

Modifications etc. (not altering text) C17 S. 3 excluded by 2002 c. 40, s. 119(4) (as inserted (29.12.2003) by Communications Act 2003 (c. 21),

ss. 385, 411(2) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11))

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Commencement Information I8 S. 3 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

4 Duties for the purpose of fulfilling [F3EU] obligations

(1) This section applies to the following functions of OFCOM— (a) their functions under Chapter 1 of Part 2; (b) their functions under the enactments relating to the management of the radio

spectrum; (c) their functions under Chapter 3 of Part 2 in relation to disputes referred to

them under section 185; (d) their functions under sections 24 and 25 so far as they relate to information

required for purposes connected with matters in relation to which functions specified in this subsection are conferred on OFCOM; and

(e) their functions under section 26 so far as they are carried out for the purpose of making information available to persons mentioned in subsection (2)(a) to (c) of that section.

(2) It shall be the duty of OFCOM, in carrying out any of those functions, to act in accordance with the six Community requirements (which give effect, amongst other things, to the requirements of Article 8 of the Framework Directive and are to be read accordingly).

(3) The first Community requirement is a requirement to promote competition— (a) in relation to the provision of electronic communications networks and

electronic communications services; (b) in relation to the provision and making available of services and facilities that

are provided or made available in association with the provision of electronic communications networks or electronic communications services; and

(c) in relation to the supply of directories capable of being used in connection with the use of electronic communications networks or electronic communications services.

(4) The second Community requirement is a requirement to secure that OFCOM’s activities contribute to the development of the European internal market.

(5) The third Community requirement is a requirement to promote the interests of all persons who are citizens of the European Union (within the meaning of [F4Article 20 of the Treaty on the Functioning of the European Union] ).

(6) The fourth Community requirement is a requirement to take account of the desirability of OFCOM’s carrying out their functions in a manner which, so far as practicable, does not favour—

(a) one form of electronic communications network, electronic communications service or associated facility; or

(b) one means of providing or making available such a network, service or facility, over another.

[F5(6A) The fourth Community requirement does not apply to— (a) the imposition, in relation to a wireless telegraphy licence, of a limitation of

a kind falling within section 9ZA(1) of the Wireless Telegraphy Act 2006; or

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(b) the review, variation or removal of such a limitation.]

(7) The fifth Community requirement is a requirement to encourage, to such extent as OFCOM consider appropriate for the purpose mentioned in subsection (8), the provision of network access and service interoperability.

(8) That purpose is the purpose of securing— (a) efficiency and sustainable competition F6...; F7...

[F8(aa) efficient investment and innovation; and] (b) the maximum benefit for the persons who are customers of communications

providers and of persons who make [F9associated facilities] available.

(9) The sixth Community requirement is a requirement to encourage such compliance with the standards mentioned in subsection (10) as is necessary for—

(a) facilitating service interoperability; and (b) securing freedom of choice for the customers of communications providers.

(10) Those standards are— (a) standards or specifications from time to time drawn up and published in

accordance with Article 17 of the Framework Directive; (b) the standards and specifications from time to time adopted by—

(i) the European Committee for Standardisation; (ii) the European Committee for Electrotechnical Standardisation;

[F10and] (iii) the European Telecommunications Standards Institute; and

(c) the international standards and recommendations from time to time adopted by—

(i) the International Telecommunication Union; (ii) the International Organisation for Standardisation; F11...

[F12(iia) the European Conference of Postal and Telecommunications Administrations; and]

(iii) the International Electrotechnical Committee.

(11) Where it appears to OFCOM that any of the Community requirements conflict with each other, they must secure that the conflict is resolved in the manner they think best in the circumstances.

(12) In this section— F13... “network access” and “service interoperability” each has the same meaning

as in Chapter 1 of Part 2.

[F14(13) In this section and sections 4A and 5, “the Framework Directive” has the same meaning as in Chapter 1 of Part 2.]

Textual Amendments F3 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5)) F4 Words in s. 4(5) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or

Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

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F5 S. 4(6A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(a) (with Sch. 3 para. 2)

F6 Words in s. 4(8)(a) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(b)(i) (with Sch. 3 para. 2)

F7 Word in s. 4(8) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(b)(ii) (with Sch. 3 para. 2)

F8 S. 4(8)(aa) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(b)(ii) (with Sch. 3 para. 2)

F9 Words in s. 4(8)(b) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(b)(iii) (with Sch. 3 para. 2)

F10 Word in s. 4(10)(b) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(c)(i) (with Sch. 3 para. 2)

F11 Word in s. 4(10)(c)(ii) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(c)(ii) (with Sch. 3 para. 2)

F12 S. 4(10)(c)(iia) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(c)(ii) (with Sch. 3 para. 2)

F13 Words in s. 4(12) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(d) (with Sch. 3 para. 2)

F14 S. 4(13) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 5(e) (with Sch. 3 para. 2)

Commencement Information I9 S. 4 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3)

(as amended by S.I. 2003/3142, art. 1(3)) I10 S. 4 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F154A. Duty to take account of European Commission recommendations for harmonisation

(1) This section applies to the following functions of OFCOM— (a) their functions under Chapter 1 of Part 2; (b) their functions under the enactments relating to the management of the radio

spectrum; (c) their functions under Chapter 3 of Part 2 in relation to disputes referred to

them under section 185; (d) their functions under sections 24 and 25 so far as they relate to information

required for purposes connected with matters in relation to which functions specified in this subsection are conferred on OFCOM; and

(e) their functions under section 26 so far as they are carried out for the purpose of making information available to persons mentioned in subsection (2)(a) to (c) of that section.

(2) In carrying out those functions, OFCOM must take due account of all applicable recommendations issued (whether before or after the coming into force of this section) by the European Commission under Article 19(1) of the Framework Directive.

(3) Where OFCOM decide not to follow such a recommendation they must notify the Commission of their decision, and of the reasons for it.]

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Textual Amendments F15 S. 4A inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 6 (with Sch. 3 para. 2)

5 Directions in respect of networks and spectrum functions

(1) This section applies to the following functions of OFCOM— (a) their functions under Part 2; and (b) their functions under the enactments relating to the management of the radio

spectrum that are not contained in that Part.

(2) It shall be the duty of OFCOM to carry out those functions in accordance with such general or specific directions as may be given to them by the Secretary of State.

(3) The Secretary of State’s power to give directions under this section shall be confined to a power to give directions for one or more of the following purposes—

(a) in the interests of national security; (b) in the interests of relations with the government of a country or territory

outside the United Kingdom; (c) for the purpose of securing compliance with international obligations of the

United Kingdom; (d) in the interests of the safety of the public or of public health.

[F16(3A) The Secretary of State may not give a direction under this section in respect of a function that Article 3(3a) of the Framework Directive requires OFCOM to exercise without seeking or taking instructions from any other body.]

(4) The Secretary of State is not entitled by virtue of any provision of this section to direct OFCOM to suspend or restrict—

(a) a person’s entitlement to provide an electronic communications network or electronic communications service; or

(b) a person’s entitlement to make available associated facilities.

[F17(4A) Before giving a direction under this section, the Secretary of State must take due account of the desirability of not favouring—

(a) one form of electronic communications network, electronic communications service or associated facility, or

(b) one means of providing or making available such a network, service or facility, over another.]

(5) The Secretary of State must publish a direction under this section in such manner as appears to him to be appropriate for bringing it to the attention of the persons who, in his opinion, are likely to be affected by it.

(6) The Secretary of State is not required by subsection (5) to publish a direction, and he may exclude matter from a direction he does publish, if he considers the publication of the direction or matter to be—

(a) against the interests of national security; or (b) against the interests of relations with the government of a country or territory

outside the United Kingdom.

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(7) Subsection (4) does not affect the Secretary of State’s powers under section 132.

Textual Amendments F16 S. 5(3A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 7(a) (with Sch. 3 para. 2) F17 S. 5(4A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 7(b) (with Sch. 3 para. 2)

Commencement Information I11 S. 5 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3)

(as amended by S.I. 2003/3142, art. 1(3)) I12 S. 5 in force at 18.9.2003 in so far as not already in force by S.I. 2003/1900, art. 2(2), Sch. 2 I13 S. 5 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

6 Duties to review regulatory burdens

(1) OFCOM must keep the carrying out of their functions under review with a view to securing that regulation by OFCOM does not involve—

(a) the imposition of burdens which are unnecessary; or (b) the maintenance of burdens which have become unnecessary.

(2) In reviewing their functions under this section it shall be the duty of OFCOM— (a) to have regard to the extent to which the matters which they are required under

section 3 to further or to secure are already furthered or secured, or are likely to be furthered or secured, by effective self-regulation; and

(b) in the light of that, to consider to what extent it would be appropriate to remove or reduce regulatory burdens imposed by OFCOM.

(3) In determining for the purposes of this section whether procedures for self-regulation are effective OFCOM must consider, in particular—

(a) whether those procedures are administered by a person who is sufficiently independent of the persons who may be subjected to the procedures; and

(b) whether adequate arrangements are in force for funding the activities of that person in relation to those procedures.

(4) OFCOM must, from time to time, publish a statement setting out how they propose, during the period for which the statement is made, to secure that regulation by OFCOM does not involve the imposition or maintenance of unnecessary burdens.

(5) The first statement to be published under this section— (a) must be published as soon as practicable after the commencement of this

section; and (b) shall be a statement for the period of twelve months beginning with the day

of its publication.

(6) A subsequent statement— (a) must be published during the period to which the previous statement related;

and (b) must be a statement for the period of twelve months beginning with the end

of the previous period.

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(7) It shall be the duty of OFCOM, in carrying out their functions at times during a period for which a statement is in force under this section, to have regard to that statement.

(8) OFCOM may, if they think fit, revise a statement under this section at any time before or during the period for which it is made.

(9) Where OFCOM revise a statement, they must publish the revision as soon as practicable.

(10) The publication under this section of a statement, or of a revision of a statement, must be in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by the matters to which it relates.

Commencement Information I14 S. 6 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

7 Duty to carry out impact assessments

(1) This section applies where— (a) OFCOM are proposing to do anything for the purposes of, or in connection

with, the carrying out of their functions; and (b) it appears to them that the proposal is important;

but this section does not apply if it appears to OFCOM that the urgency of the matter makes it impracticable or inappropriate for them to comply with the requirements of this section.

(2) A proposal is important for the purposes of this section only if its implementation would be likely to do one or more of the following—

(a) to involve a major change in the activities carried on by OFCOM; (b) to have a significant impact on persons carrying on businesses in the markets

for any of the services, facilities, apparatus or directories in relation to which OFCOM have functions; or

(c) to have a significant impact on the general public in the United Kingdom or in a part of the United Kingdom.

(3) Before implementing their proposal, OFCOM must either— (a) carry out and publish an assessment of the likely impact of implementing the

proposal; or (b) publish a statement setting out their reasons for thinking that it is unnecessary

for them to carry out an assessment.

(4) An assessment under subsection (3)(a) must set out how, in OFCOM’s opinion, the performance of their general duties (within the meaning of section 3) is secured or furthered by or in relation to what they propose.

(5) An assessment carried out under this section— (a) may take such form, and (b) must relate to such matters,

as OFCOM consider appropriate.

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(6) In determining the matters to which an assessment under this section should relate, OFCOM must have regard to such general guidance relating to the carrying out of impact assessments as they consider appropriate.

(7) Where OFCOM publish an assessment under this section— (a) they must provide an opportunity of making representations to them about

their proposal to members of the public and other persons who, in OFCOM’s opinion, are likely to be affected to a significant extent by its implementation;

(b) the published assessment must be accompanied by a statement setting out how representations may be made; and

(c) OFCOM are not to implement their proposal unless the period for making representations about it has expired and they have considered all the representations that were made in that period.

(8) Where OFCOM are required (apart from this section)— (a) to consult about a proposal to which this section applies, or (b) to give a person an opportunity of making representations about it,

the requirements of this section are in addition to, but may be performed contemporaneously with, the other requirements.

(9) Every report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (c. 11) (OFCOM’s annual report) must set out—

(a) a list of the assessments under this section carried out during the financial year to which the report relates; and

(b) a summary of the decisions taken during that year in relation to proposals to which assessments carried out in that year or previous financial years relate.

(10) The publication of anything under this section must be in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected if their proposal is implemented.

Commencement Information I15 S. 7 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

8 Duty to publish and meet promptness standards

(1) It shall be the duty of OFCOM to publish a statement setting out the standards they are proposing to meet with respect to promptness in—

(a) the carrying out of their different functions; and (b) the transaction of business for purposes connected with the carrying out of

those functions.

(2) This section does not require standards to be set out with respect to anything which (apart from this section) is required to be done by a time, or within a period, provided for by or under an enactment.

(3) OFCOM may, if they think fit, at any time revise the statement for the time being in force under this section.

(4) It shall be the duty of OFCOM— (a) in carrying out their functions, and

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(b) in transacting business for purposes connected with the carrying out of their functions,

to have regard to the statement for the time being in force under this section.

(5) Where OFCOM revise a statement under this section, they must publish the revision as soon as practicable.

(6) The publication under this section of a statement, or of a revision of a statement, must be in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by the matters to which it relates.

(7) OFCOM’s report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (c. 11) (annual report) for each financial year must contain a statement by OFCOM summarising the extent to which they have complied during that year with the standards set out under this section.

Commencement Information I16 S. 8 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

9 Secretary of State’s powers in relation to promptness standards

(1) Where the Secretary of State considers that the statement published by OFCOM under section 8 is not adequate for securing that they meet satisfactory promptness standards, he may give them a notification to that effect.

(2) If the period of three months after the date of the giving of a notification under subsection (1) expires without OFCOM taking steps which the Secretary of State is satisfied remedy the situation, he may give them a direction under this section.

(3) A direction under this section is one requiring OFCOM to issue a new or revised statement under section 8 in accordance with the direction.

(4) Before giving a direction under this section, the Secretary of State must— (a) give OFCOM an opportunity of making representations to him about his

proposed direction; and (b) have regard to any representations made to him by them.

(5) Where the Secretary of State gives a direction to OFCOM under this section, he must publish a copy of it in such manner as he considers appropriate for bringing it to the attention of persons who, in his opinion, are likely to be affected by OFCOM’s promptness standards.

(6) It shall be the duty of OFCOM to revise their statement under section 8 in accordance with any direction of the Secretary of State under this section.

(7) In this section “promptness standards” means standards of promptness in— (a) the carrying out by OFCOM of their different functions; and (b) the transaction by them of business for purposes connected with the carrying

out of those functions.

(8) No notification is to be given under subsection (1) at any time in the period of twelve months beginning with the commencement of section 8.

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Commencement Information I17 S. 9 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Accessible domestic communications apparatus

10 Duty to encourage availability of easily usable apparatus

(1) It shall be the duty of OFCOM to take such steps, and to enter into such arrangements, as appear to them calculated to encourage others to secure—

(a) that domestic electronic communications apparatus is developed which is capable of being used with ease, and without modification, by the widest possible range of individuals (including those with disabilities); and

(b) that domestic electronic communications apparatus which is capable of being so used is as widely available as possible for acquisition by those wishing to use it.

(2) It shall be the duty of OFCOM from time to time to review whether they need to take further steps, or to enter into further arrangements, for the purpose of performing their duty under this section.

(3) OFCOM must not do anything under this section that would be inconsistent with the Community requirements set out in section 4.

(4) In this section “electronic communications apparatus” means apparatus 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.

(5) For the purposes of this section electronic communications apparatus is domestic electronic communications apparatus except to the extent that it is designed or adapted for use solely for the purposes of, or in connection with, a business.

(6) In this section “signal” includes— (a) anything comprising speech, music, sounds, visual images or communications

or data of any description; and (b) signals serving for the impartation of anything between persons, between

a person and a thing or between things, or for the actuation or control of apparatus.

Commencement Information I18 S. 10 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Media literacy

11 Duty to promote media literacy

(1) It shall be the duty of OFCOM to take such steps, and to enter into such arrangements, as appear to them calculated—

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(a) to bring about, or to encourage others to bring about, a better public understanding of the nature and characteristics of material published by means of the electronic media;

(b) to bring about, or to encourage others to bring about, a better public awareness and understanding of the processes by which such material is selected, or made available, for publication by such means;

(c) to bring about, or to encourage others to bring about, the development of a better public awareness of the available systems by which access to material published by means of the electronic media is or can be regulated;

(d) to bring about, or to encourage others to bring about, the development of a better public awareness of the available systems by which persons to whom such material is made available may control what is received and of the uses to which such systems may be put; and

(e) to encourage the development and use of technologies and systems for regulating access to such material, and for facilitating control over what material is received, that are both effective and easy to use.

(2) In this section, references to the publication of anything by means of the electronic media are references to its being—

(a) broadcast so as to be available for reception by members of the public or of a section of the public; or

(b) distributed by means of an electronic communications network to members of the public or of a section of the public.

Commencement Information I19 S. 11 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

OFCOM’s Content Board

12 Duty to establish and maintain Content Board

(1) It shall be the duty of OFCOM, in accordance with the following provisions of this section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002 (c. 11) (committees of OFCOM) to establish and maintain a committee to be known as “the Content Board”.

(2) The Content Board shall consist of— (a) a chairman appointed by OFCOM; and (b) such number of other members appointed by OFCOM as OFCOM think fit.

(3) The chairman of the Content Board must be a non-executive member of OFCOM but is not to be the chairman of OFCOM.

(4) At least one of the other members of the Content Board must also be a non-executive member of OFCOM other than the chairman of OFCOM.

(5) In appointing persons to be members of the Content Board, OFCOM must secure that, for each of the following parts of the United Kingdom—

(a) England, (b) Scotland,

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(c) Wales, and (d) Northern Ireland,

there is a different member of the Board capable of representing the interests and opinions of persons living in that part of the United Kingdom.

(6) In appointing a person for the purposes of subsection (5)(a), OFCOM must have regard to the desirability of ensuring that the person appointed is able to represent the interests and opinions of persons living in all the different regions of England.

(7) The validity of any proceedings of the Content Board shall not be affected by any failure by OFCOM to comply with subsection (5) or (6).

(8) It shall be the duty of OFCOM when appointing members of the Content Board to secure, so far as practicable, that a majority of the members of the Board (counting the chairman) consists of persons who are neither members nor employees of OFCOM.

(9) The following shall be disqualified from being the chairman or another member of the Content Board—

(a) governors and employees of the BBC; (b) members and employees of the Welsh Authority; and (c) members and employees of C4C.

(10) Before appointing a person to be the chairman or another member of the Content Board, OFCOM must satisfy themselves that he will not have any financial or other interest which would be likely prejudicially to affect the carrying out by him of any of his functions as chairman or member of the Content Board.

(11) A person is not to be taken to have such an interest by reason only that he is or will be a member or employee of OFCOM.

(12) Every person whom OFCOM propose to appoint to be the chairman or another member of the Content Board, shall, whenever requested to do so by OFCOM, furnish OFCOM with any information they consider necessary for the performance of their duty under subsection (10).

(13) In addition to paying remuneration and expenses under paragraph 14(4) of the Schedule to the Office of Communications Act 2002 (c. 11), OFCOM may—

(a) pay to, or in respect of, any member of the Content Board who is not a member or employee of OFCOM, such sums by way of pensions, allowances or gratuities as OFCOM may determine; and

(b) provide for the making of such payments to or in respect of any such member of the Content Board.

(14) In subsection (13)— (a) the reference to pensions, allowances and gratuities includes a reference to

similar benefits payable on death or retirement; and (b) the reference to providing for the payment of a pension, allowance or gratuity

to, or in respect of, a person includes a reference to the making of payments towards the provision or payment of a pension, allowance or gratuity, or of any such similar benefits, to or in respect of that person.

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Commencement Information I20 S. 12 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

13 Functions of the Content Board

(1) The Content Board shall have such functions as OFCOM, in exercise of their powers under the Schedule to the Office of Communications Act 2002 (c. 11), may confer on the Board.

(2) The functions conferred on the Board must include, to such extent and subject to such restrictions and approvals as OFCOM may determine, the carrying out on OFCOM’s behalf of—

(a) functions in relation to matters that concern the contents of anything which is or may be broadcast or otherwise transmitted by means of electronic communications networks; and

(b) functions in relation to the promotion of public understanding or awareness of matters relating to the publication of matter by means of the electronic media.

(3) In determining what functions to confer on the Content Board, OFCOM must have particular regard to the desirability of securing that the Board have at least a significant influence on decisions which—

(a) relate to the matters mentioned in subsection (2); and (b) involve the consideration of different interests and other factors as respects

different parts of the United Kingdom.

(4) It shall be the duty of the Content Board to ensure, in relation to— (a) the carrying out of OFCOM’s functions under Part 3 of this Act, Parts 1 and

3 of the 1990 Act and Parts 1 and 2 of the 1996 Act, (b) the matters with respect to which functions are conferred on the Board, and (c) such other matters mentioned in subsection (2) as OFCOM may determine,

that OFCOM are aware of the different interests and other factors which, in the Board’s opinion, need to be taken into account as respects the different parts of the United Kingdom in relation to the carrying out of OFCOM’s functions.

(5) The power of OFCOM to determine the Content Board’s functions includes power to authorise the Board to establish committees and panels to advise the Board on the carrying out of some or all of the Board’s functions.

(6) The power of OFCOM to authorise the establishment of a committee or panel by the Content Board includes power to authorise the establishment of a committee or panel that includes persons who are not members of the Board.

(7) In this section references to the publication of anything by means of the electronic media are references to its being—

(a) broadcast so as to be available for reception by members of the public or of a section of the public; or

(b) distributed by means of an electronic communications network to members of the public or of a section of the public.

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Commencement Information I21 S. 13 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Functions for the protection of consumers

14 Consumer research

(1) OFCOM must make arrangements for ascertaining— (a) the state of public opinion from time to time about the manner in which

electronic communications networks and electronic communications services are provided;

(b) the state of public opinion from time to time about the manner in which associated facilities are made available;

(c) the experiences of consumers in the markets for electronic communications services and associated facilities, in relation to the manner in which electronic communications networks and electronic communications services are provided and associated facilities made available;

(d) the experiences of such consumers in relation to the handling, by communications providers and by persons making such facilities available, of complaints made to them by such consumers;

(e) the experiences of such consumers in relation to the resolution of disputes with communications providers or with persons making associated facilities available; and

(f) the interests and experiences of such consumers in relation to other matters that are incidental to, or are otherwise connected with, their experiences of the provision of electronic communications networks and electronic communications services or of the availability of associated facilities.

(2) The matters to which the arrangements must relate do not include the incidence or investigation of interference (within the meaning of [F18the Wireless Telegraphy Act 2006] ) with wireless telegraphy.

(3) The matters to which the arrangements must relate do not (except so far as authorised or required by subsections (4) to (6)) include public opinion with respect to—

(a) the contents of anything broadcast or otherwise published by means of an electronic communications network; or

(b) the experiences or interests of consumers in any market for electronic communications services with respect to anything so broadcast or published.

(4) OFCOM must make arrangements for ascertaining— (a) the state of public opinion from time to time concerning programmes included

in television and radio services; (b) any effects of such programmes, or of other material published by means of the

electronic media, on the attitudes or behaviour of persons who watch, listen to or receive the programmes or material; and

(c) so far as necessary for the purpose mentioned in subsection (5), the types of programmes that members of the public would like to see included in television and radio services.

22 Communications Act 2003 (c. 21) Part 1 – Functions of OFCOM

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(5) That purpose is the carrying out by OFCOM of their functions under Chapter 4 of Part 3 of this Act.

(6) OFCOM must make arrangements for the carrying out of research into the following— (a) the matters mentioned in section 11(1); (b) matters relating to, or connected with, the setting of standards under

section 319 of this Act; (c) matters relating to, or connected with, the observance of those standards by

persons providing television and radio services; (d) matters relating to, or connected with, the prevention of unjust or unfair

treatment in programmes included in such services; and (e) matters relating to, or connected with, the prevention of unwarranted

infringements of privacy resulting from activities carried on for the purposes of such services.

[F19(6A) OFCOM must make arrangements for ascertaining— (a) the state of public opinion from time to time about the way in which postal

services are provided; (b) the experiences of consumers in the markets for postal services, in relation to

the way in which those services are provided; (c) the experiences of such consumers in relation to the handling, by persons

providing postal services, of complaints made to them by such consumers; (d) the experiences of such consumers in relation to the resolution of disputes

with persons providing postal services; (e) the interests and experiences of such consumers in relation to matters that are

incidental to or otherwise connected with their experiences of the provision of postal services.]

(7) Arrangements made by OFCOM for the purposes of this section may include arrangements for the carrying out of research in one or more of the following ways—

(a) by members or employees of OFCOM; (b) by the Content Board; (c) in accordance with arrangements made by that Board; (d) by persons who are neither members nor employees of OFCOM.

(8) In this section references to the publication of anything by means of the electronic media are references to its being—

(a) broadcast so as to be available for reception by members of the public or of a section of the public; or

(b) distributed by means of an electronic communications network to members of the public or of a section of the public.

(9) This section does not restrict OFCOM’s power to make any arrangements they consider to be incidental or conducive to the carrying out of any of their functions.

Textual Amendments F18 Words in s. 14(2) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 26 F19 S. 14(6A) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 58; S.I.

2011/2329, art. 3

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Commencement Information I22 S. 14 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

15 Duty to publish and take account of research

(1) It shall be the duty of OFCOM— (a) to publish the results of any research carried out by them or on their behalf

under section 14; and (b) to consider and, to such extent as they think fit, to take account of the results

of such research in the carrying out of their functions.

(2) OFCOM are not required under this section— (a) to publish any matter that is confidential in accordance with subsection (3)

or (4); or (b) to publish anything that it would not be reasonably practicable to publish

without disclosing such a matter.

(3) A matter is confidential under this subsection 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.

(4) A matter is confidential under this subsection 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.

(5) The publication of research under this section must be in such manner as OFCOM consider appropriate.

Commencement Information I23 S. 15 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

16 Consumer consultation

(1) It shall be the duty of OFCOM to establish and maintain effective arrangements for consultation about the carrying out of their functions with—

(a) consumers in the markets for the services and facilities in relation to which OFCOM have functions;

(b) consumers in the markets for apparatus used in connection with any such services or facilities [F20(other than postal services)] ;

(c) consumers in the markets for directories capable of being used in connection with the use of an electronic communications network or electronic communications service.

(2) The arrangements must include the establishment and maintenance of a panel of persons (in this Act referred to as “the Consumer Panel”) with the function of advising both—

(a) OFCOM; and

24 Communications Act 2003 (c. 21) Part 1 – Functions of OFCOM

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(b) such other persons as the Panel think fit.

(3) The arrangements must secure that the matters about which the Consumer Panel are able to give advice include the interests of domestic and small business consumers in relation to the following matters—

(a) the provision of electronic communications networks; (b) the provision and making available of the services and facilities mentioned

in subsection (4); (c) the supply of apparatus designed or adapted for use in connection with [F21a

service or facility mentioned in subsection (4)(a) to (e)] ; (d) the supply of directories capable of being used in connection with the use of

an electronic communications network or electronic communications service; (e) the financial and other terms on which [F22services or facilities mentioned in

subsection (4)] are provided or made available, or on which such apparatus or such a directory is supplied;

(f) standards of service, quality and safety for such services, facilities, apparatus and directories;

(g) the handling of complaints made by persons who are consumers in the markets for such services, facilities, apparatus or directories to the persons who provide the services or make the facilities available, or who are suppliers of the apparatus or directories;

(h) the resolution of disputes between such consumers and the persons who provide such services or make such facilities available, or who are suppliers of such apparatus or directories;

(i) the provision of remedies and redress in respect of matters that form the subject-matter of such complaints or disputes;

(j) the information about service standards and the rights of consumers that is made available by persons who provide or make available such services or facilities, or who are suppliers of such apparatus or directories;

(k) any other matter appearing to the Panel to be necessary for securing effective protection for persons who are consumers in the markets for any such services, facilities, apparatus or directories.

(4) Those services and facilities are— (a) electronic communications services; (b) associated facilities; (c) directory enquiry facilities; (d) a service consisting in the supply of information for use in responding to

directory enquiries or of an electronic programme guide; F23... (e) every service or facility not falling within any of the preceding paragraphs

which is provided or made available to members of the public— (i) by means of an electronic communications network; and

(ii) in pursuance of agreements entered into between the person by whom the service or facility is provided or made available and each of those members of the public.

[F24(f) postal services.]

(5) The matters about which the Consumer Panel are to be able to give advice do not include any matter that concerns the contents of anything which is or may be broadcast or otherwise transmitted by means of electronic communications networks.

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(6) The arrangements made by OFCOM under this section must also secure that the Consumer Panel are able, in addition to giving advice on the matters mentioned in subsection (3), to do each of the following—

(a) at the request of OFCOM, to carry out research for OFCOM in relation to any of the matters in relation to which OFCOM have functions under section 14;

(b) to make arrangements for the carrying out of research into such other matters appearing to the Panel to be relevant to the carrying out of the Panel’s functions as they think fit;

(c) to give advice to OFCOM in relation to any matter referred to the Panel by OFCOM for advice;

(d) to publish such information as the Panel think fit about the advice they give, about the carrying out of the Panel’s other functions and about the results of research carried out by them or on their behalf.

(7) It shall be the duty of OFCOM, in the carrying out of their functions, to consider and, to such extent as they think appropriate, to have regard to—

(a) any advice given to OFCOM by the Consumer Panel; and (b) any results notified to OFCOM of any research undertaken by that Panel.

(8) It shall also be the duty of OFCOM (subject to subsection (9))— (a) to provide the Consumer Panel with all such information as, having regard,

in particular, to the need to preserve commercial confidentiality, OFCOM consider appropriate to disclose to the Panel for the purpose of enabling the Panel to carry out their functions; and

(b) to provide the Panel with all such further information as the Panel may require.

(9) OFCOM are not required to provide information by virtue of subsection (8)(b) if, having regard to—

(a) the need to preserve commercial confidentiality, and (b) any other matters that appear to OFCOM to be relevant,

it is reasonable for OFCOM to refuse to disclose it to the Panel.

(10) It shall be the duty of OFCOM, in the case of any advice or opinion received from and published by the Panel which OFCOM propose to disregard in whole or in part, or with which OFCOM disagree in whole or in part—

(a) to ensure that the Panel know OFCOM’s reasons for disregarding or disagreeing with the advice or opinion; and

(b) to ensure that those reasons are or have been published in such manner as OFCOM consider appropriate for bringing them to the attention of persons who are aware of the Panel’s advice or opinion.

(11) The Consumer Panel must— (a) as soon as practicable after the end of the period of twelve months beginning

with the commencement of this section, and (b) as soon as practicable after the end of each subsequent period of twelve

months, prepare a report on the carrying out of their functions in that period.

(12) The Consumer Panel must publish each report— (a) as soon as practicable after its preparation is complete; and (b) in such manner as they consider appropriate.

26 Communications Act 2003 (c. 21) Part 1 – Functions of OFCOM

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(13) In this section— “domestic and small business consumer” means a person who—

(a) is a consumer in the market for services or facilities mentioned in subsection (4) or for apparatus designed or adapted for use in connection with [F25a service or facility mentioned in subsection (4)(a) to (e)] ; but

(b) is neither— (i) a communications provider or a person who makes associated

facilities available; nor (ii) a person who is a consumer in the market in respect of

an undertaking carried on by him for which more than ten individuals work (whether as employees or volunteers or otherwise);

“electronic programme guide” means a service which consists of— (a) the listing or promotion, or both the listing and the promotion, of some or

all of the programmes included in any one or more programme services the providers of which are or include persons other than the provider of the guide; and

(b) a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide.

Textual Amendments F20 Words in s. 16(1)(b) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para.

59(2); S.I. 2011/2329, art. 3 F21 Words in s. 16(3)(c) substituted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12

para. 59(3)(a); S.I. 2011/2329, art. 3 F22 Words in s. 16(3)(e) substituted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12

para. 59(3)(b); S.I. 2011/2329, art. 3 F23 Word in s. 16(4)(d) omitted (1.10.2011) by virtue of Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch.

12 para. 59(4)(a); S.I. 2011/2329, art. 3 F24 S. 16(4)(f) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 59(4)(b);

S.I. 2011/2329, art. 3 F25 Words in s. 16(13) substituted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12

para. 59(5); S.I. 2011/2329, art. 3

Commencement Information I24 S. 16 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

17 Membership etc. of the Consumer Panel

(1) The members of the Consumer Panel shall be appointed by OFCOM and shall comprise a chairman and such other members as OFCOM may determine.

(2) The approval of the Secretary of State is required for the appointment of a person to be the chairman or to be another member of the Panel.

(3) In appointing persons to be members of the Consumer Panel, OFCOM must secure that, for each of the following parts of the United Kingdom—

(a) England, (b) Scotland,

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(c) Wales, and (d) Northern Ireland,

there is a different member of the Panel capable of representing the interests and opinions of persons living in that part of the United Kingdom.

(4) In appointing persons to be members of the Consumer Panel, OFCOM must secure, so far as practicable, that the Panel are able to give informed advice about matters referable to each of the following—

(a) the interests of persons living in rural areas; (b) the interests of persons living in urban areas; (c) the interests of small businesses; (d) the interests of disadvantaged persons, persons with low incomes and persons

with disabilities; and (e) the interests of the elderly.

[F26(4A) The Secretary of State may direct OFCOM to appoint as a member of the Consumer Panel a person specified by the Secretary of State who— [F27(a) is an employee of the National Association of Citizens Advice Bureaux

(“Citizens Advice”), and (b) is nominated for the purposes of this subsection by Citizens Advice after

consultation with OFCOM.]

(4B) Only one person may, at any time, be a member of the Consumer Panel appointed in accordance with a direction under subsection (4A); but that does not prevent OFCOM appointing as a member of the Consumer Panel any person who is also [F28an employee of Citizens Advice] .

[ F29(4BA)

The Secretary of State may direct OFCOM to appoint as a member of the Consumer Panel a person specified by the Secretary of State who—

(a) is an employee of the Scottish Association of Citizens Advice Bureaux (“Citizens Advice Scotland”) Citizens Advice Scotland, and

(b) is nominated for the purposes of this subsection by Citizens Advice Scotland after consultation with OFCOM.

(4BB) Only one person may, at any time, be a member of the Consumer Panel appointed in accordance with a direction under subsection (4BA); but that does not prevent OFCOM appointing as a member of the Consumer Panel any person who is also an employee of Citizens Advice Scotland.]

[F30(4C) A person appointed in accordance with a direction under subsection (4A) or (4BA) ceases to be a member of the Consumer Panel—

(a) on ceasing to be an employee of Citizens Advice or, as the case may be, Citizens Advice Scotland, or

(b) if Citizens Advice or, as the case may be, Citizens Advice Scotland decide that the person is no longer to be on the Consumer Panel.]]

(5) The validity of any proceedings of the Consumer Panel shall not be affected by any failure by OFCOM to comply with [F31subsections (3) to (4A) ][F32and (4BA)] .

(6) It shall be the duty of the Consumer Panel, in carrying out their functions, to have regard to the following interests—

(a) the interests of persons from the different parts of the United Kingdom; and (b) the interests specified in subsection (4).

28 Communications Act 2003 (c. 21) Part 1 – Functions of OFCOM

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(7) A person shall be disqualified from being the chairman or a member of the Consumer Panel if he is a member or employee of OFCOM.

(8) The chairman and every member of the Consumer Panel— (a) shall be appointed for a fixed period specified in the terms of his appointment

but shall be eligible for re-appointment at the end of that period; and (b) may at any time be removed from the Panel by a notice given by OFCOM

with the approval of the Secretary of State.

(9) OFCOM may pay to the chairman and to any other member of the Consumer Panel such remuneration and allowances as OFCOM consider appropriate.

Textual Amendments F26 S. 17(4A)-(4C) inserted (21.12.2007) by Consumers, Estate Agents and Redress Act 2007 (c. 17), ss.

40(a), 66(2) (with s. 6(9)); S.I. 2007/3546, art. 3, Sch. F27 S. 17(4A)(a)(b) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer

Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 11(2)(a) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F28 Words in s. 17(4B) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 11(2)(b) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F29 S. 17(4BA)(4BB) inserted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 11(2)(c) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F30 S. 17(4C) substituted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 11(2)(d) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

F31 Words in s. 17(5) substituted (21.12.2007) by Consumers, Estate Agents and Redress Act 2007 (c. 17), ss. 40(b), 66(2) (with s. 6(9)); S.I. 2007/3546, art. 3, Sch.

F32 Words in s. 17(5) inserted (1.4.2014) by The Public Bodies (Abolition of the National Consumer Council and Transfer of the Office of Fair Trading’s Functions in relation to Estate Agents etc) Order 2014 (S.I. 2014/631), art. 1(3), Sch. 1 para. 11(2)(e) (with Sch. 1 para. 28, Sch. 2 paras. 13-15)

Commencement Information I25 S. 17 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

18 Committees and other procedure of the Consumer Panel

(1) The Consumer Panel may make such arrangements as they think fit for committees established by the Panel to give advice to them about matters relating to the carrying out of the Panel’s functions.

(2) The Consumer Panel may make such other arrangements for regulating their own procedure, and for regulating the procedure of the committees established by them, as they think fit.

(3) Those arrangements may include arrangements as to quorums and as to the making of decisions by a majority.

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(4) The committees established by the Panel may include committees the membership of which includes persons (including persons constituting a majority of the committee) who are not members of the Panel.

(5) The membership of every committee established by the Consumer Panel must contain at least one person who is a member of the Panel.

(6) Where a person who is not a member of the Consumer Panel is a member of a committee established by the Panel, OFCOM may pay to that person such remuneration and expenses as OFCOM may determine.

Commencement Information I26 S. 18 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

19 Power to amend remit of Consumer Panel

(1) The Secretary of State may by order modify subsection (3) of section 16 so as to add to the matters about which the Consumer Panel are required to be able to give advice.

(2) Before making an order under this section the Secretary of State must consult OFCOM and such other persons as he thinks fit.

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

(4) The power to amend or revoke an order under this section does not include power to provide for a matter to cease to be a matter about which the Consumer Panel are required to be able to give advice.

Commencement Information I27 S. 19 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Advisory committees

20 Advisory committees for different parts of the United Kingdom

(1) It shall be the duty of OFCOM, in accordance with the following provisions of this section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002 (c. 11) (committees of OFCOM) to establish and maintain a committee for each of the following parts of the United Kingdom—

(a) England; (b) Wales; (c) Scotland; and (d) Northern Ireland.

(2) Each committee shall consist of— (a) a chairman appointed by OFCOM; and (b) such number of other members appointed by OFCOM as OFCOM think fit.

30 Communications Act 2003 (c. 21) Part 1 – Functions of OFCOM

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(3) In appointing a person in accordance with this section to be a member of a committee, OFCOM must have regard to the desirability of ensuring that the person appointed is able to represent the interests and opinions, in relation to communications matters, of persons living in the part of the United Kingdom for which the committee has been established.

(4) The function of each committee shall be to provide advice to OFCOM (including other committees established by OFCOM) about the interests and opinions, in relation to communications matters, of persons living in the part of the United Kingdom for which the committee has been established.

(5) A committee established under this section may also, at the request of the Consumer Panel, provide advice about those interests and opinions to the Consumer Panel.

(6) The consent of OFCOM is required for the giving of advice under subsection (5).

(7) In this section “communications matters” has the same meaning as in section 3.

Commencement Information I28 S. 20 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

21 Advisory committee on elderly and disabled persons

(1) It shall be the duty of OFCOM, in accordance with the following provisions of this section, to exercise their powers under paragraph 14 of the Schedule to the Office of Communications Act 2002 (c. 11) (committees of OFCOM) to establish and maintain a committee to provide the advice specified in this section.

(2) The committee shall consist of— (a) a chairman appointed by OFCOM; and (b) such number of other members appointed by OFCOM as OFCOM think fit.

(3) In appointing persons to be members of the committee, OFCOM must have regard to the desirability of ensuring that the members of the committee include—

(a) persons who are familiar with the needs of the elderly; and (b) persons who are familiar with the needs of persons with disabilities.

(4) The function of the committee shall be to provide advice to OFCOM (including other committees established by OFCOM) about the interests, in relation to communications matters, of—

(a) the elderly; and (b) persons with disabilities.

(5) The committee may also, at the request of the Consumer Panel, provide advice about those interests to the Consumer Panel.

(6) The consent of OFCOM is required for the giving of advice under subsection (5).

(7) In this section “communications matters” has the same meaning as in section 3.

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Commencement Information I29 S. 21 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

International matters

22 Representation on international and other bodies

(1) It shall be the duty of OFCOM to do, as respects the United Kingdom, such of the following things as they are required to do by the Secretary of State—

(a) provide representation on behalf of Her Majesty’s Government in the United Kingdom on international and other bodies having communications functions;

(b) become or serve as a member of an international or other body having such functions;

(c) subscribe to such a body; (d) provide representation on behalf of Her Majesty’s Government in the United

Kingdom at international meetings about communications.

(2) OFCOM shall also have the power, if requested to do so by the Secretary of State, to do one or more of those things as respects any of the Channel Islands, the Isle of Man or a British overseas territory.

(3) It shall be the duty of OFCOM to carry out their functions under this section in accordance with such general or specific directions as may be given to them by the Secretary of State.

(4) The Secretary of State— (a) is not entitled to direct OFCOM to comply with a request made under

subsection (2); but (b) may give directions about how OFCOM are to carry out any representative

role that they undertake in accordance with such a request.

(5) In this section— “communications functions” means—

(a) functions relating to the use of the electro-magnetic spectrum for wireless telegraphy;

(b) functions relating to the regulation of television or radio broadcasting or the provision of television and radio services ; F33...

(ba) [F34functions relating to postal services; and] (c) any other function which relates to, or is connected with, a matter in

respect of which OFCOM have functions; “international meetings about communications” means international

meetings relating to, or to matters connected with, one or more of the following—

(a) the use of the electro-magnetic spectrum for wireless telegraphy; (b) the regulation of television or radio broadcasting or of the provision of

television and radio services; (ba) [F35the regulation of postal services;] (c) any other matter in respect of which OFCOM have functions.

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(6) In relation to— (a) a part of the British Islands outside the United Kingdom, or (b) a British overseas territory,

the references in subsection (5) to matters in respect of which OFCOM have functions include references to matters corresponding, in the case of that part of those Islands or of that territory, to matters in respect of which OFCOM’s functions are confined to the United Kingdom.

(7) In subsection (5) “television or radio broadcasting” includes the provision by means other than broadcasting of services similar to those provided by television or radio broadcasts.

Textual Amendments F33 Word in s. 22(5) omitted (1.10.2011) by virtue of Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12

para. 60(2); S.I. 2011/2329, art. 3 F34 Words in s. 22(5) inserted (1.10.2011) by virtue of Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12

para. 60(2); S.I. 2011/2329, art. 3 F35 Words in s. 22(5) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para.

60(3); S.I. 2011/2329, art. 3

Commencement Information I30 S. 22 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

23 Directions for international purposes in respect of broadcasting functions

(1) This section applies to— (a) OFCOM’s functions under the enactments relating to broadcasting; and (b) the matters in relation to which those functions are conferred.

(2) It shall be the duty of OFCOM— (a) to carry out those functions in accordance with any general or specific

directions given to them by the Secretary of State for the purpose mentioned in subsection (3); and

(b) to carry out such other functions in relation to the matters to which this this section applies as they are required to carry out by any general or specific directions so given.

(3) The Secretary of State is not to give a direction under this section except for the purpose of securing compliance, in relation to a matter to which this section applies, with an international obligation of the United Kingdom.

(4) A direction under this section must be contained in an order made by the Secretary of State.

(5) In this section “the enactments relating to broadcasting” means— (a) the 1990 Act; (b) the 1996 Act; (c) Part 3 of this Act; and (d) the other provisions of this Act so far as relating to the 1990 Act, the 1996

Act or that Part.

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Modifications etc. (not altering text) C18 S. 23(1) applied (with modifications) (8.5.2017) by The Greater Manchester Combined Authority (Fire

and Rescue Functions) Order 2017 (S.I. 2017/469), art. 1(3), Sch. para. 5

Commencement Information I31 S. 23 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

General information functions

24 Provision of information to the Secretary of State

(1) It shall be the duty of OFCOM to comply with a direction by the Secretary of State to provide him with information falling within subsection (2).

(2) The information that may be the subject of a direction under this section is any information reasonably required by the Secretary of State for the purpose of enabling him to secure compliance with an international obligation of the United Kingdom.

(3) Information that is required to be provided by a direction under this section must be provided in such manner and at such times as may be required by the direction.

Commencement Information I32 S. 24 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I33 S. 24 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F3624A Provision of information before publication

(1) OFCOM must provide the Secretary of State, at least 24 hours before publication, with any information that they propose to publish.

(2) If exceptional circumstances make it impracticable to provide the information to the Secretary of State 24 hours before publication it must instead be provided to the Secretary of State as long before publication as is practicable.

(3) Subsections (1) and (2) have effect in any particular case subject to any agreement made between the Secretary of State and OFCOM in that case.

(4) The Secretary of State may by regulations specify descriptions of information in relation to which the duty under subsection (1) does not apply.

(5) Before making regulations under subsection (4), the Secretary of State must consult OFCOM.

(6) Information provided to the Secretary of State under this section may not be disclosed by the Secretary of State during the protected period, except to another Minister of the Crown.

(7) A Minister of the Crown to whom the information is disclosed under subsection (6) may not disclose the information during the protected period to any other person.

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(8) A Minister of the Crown may not make any representations to OFCOM during the protected period that specify or describe changes that the Minister considers should be made to information that has been provided under this section when it is published.

(9) In this section— “the protected period”, in relation to information provided to the Secretary

of State under this section, means the period beginning with the provision of the information and ending when either of the following occurs—

(a) OFCOM publish the information; (b) OFCOM inform the Secretary of State that they consent to the disclosure

of the information; “Minister of the Crown” has the same meaning as in the Ministers of the

Crown Act 1975.

Textual Amendments F36 Ss. 24A, 24B inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 98(2), 118(6) (with s.

98(3)); S.I. 2017/765, reg. 2(aa)

24B Provision of information to assist in formulation of policy

(1) OFCOM may provide the Secretary of State with any information that they consider may assist the Secretary of State in the formulation of policy.

(2) Information with respect to a particular business that has been obtained in the exercise of a power conferred by—

(a) this Act, (b) the 1990 Act, (c) the 1996 Act, (d) the Wireless Telegraphy Act 2006, or (e) Part 3 of the Postal Services Act 2011,

is not, so long as the business continues to be carried on, to be provided to the Secretary of State under this section without the consent of the person for the time being carrying on that business.]

Textual Amendments F36 Ss. 24A, 24B inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 98(2), 118(6) (with s.

98(3)); S.I. 2017/765, reg. 2(aa)

25 Community requirement to provide information

(1) This section applies if— (a) the European Commission requires OFCOM to provide it with information

for the purpose of enabling it to perform any of its functions in relation to electronic communications networks, electronic communications services or associated facilities; and

(b) the information is information obtained by OFCOM in the course of carrying out any of their functions under—

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(i) Part 2; or (ii) the enactments relating to the management of the radio spectrum that

are not contained in that Part.

(2) It shall be the duty of OFCOM to comply with the requirement.

(3) If information provided to the European Commission under this section has been obtained by OFCOM from a person who is or, at the time the information was obtained from him, was—

(a) a communications provider, or (b) a person making associated facilities available,

OFCOM must notify him that they have provided the information to the Commission.

(4) It shall be for OFCOM to determine the manner in which a notification is given under subsection (3).

Commencement Information I34 S. 25 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I35 S. 25 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

26 Publication of information and advice for consumers etc.

(1) OFCOM [F37must] arrange for the publication of such information and advice about matters in relation to which they have functions as it appears to them to be appropriate to make available to the persons mentioned in subsection (2).

(2) Those persons are— (a) the customers of communications providers; (b) the customers of persons who make associated facilities available;

[F38(ba) any person affected by the application of the electronic communications code (within the meaning of section 106(1));]

(c) persons who use electronic communications networks, electronic communications services or associated facilities; F39...

(d) persons to whom radio and television services are provided or who are otherwise able or likely to take advantage of any of those services.

[F40(e) the customers of persons who provide postal services.]

[F41(2A) In subsection (2)(e) the reference to customers of persons who provide postal services includes—

(a) persons who wish to be provided with such services, (b) persons who are likely to seek to be provided with such services, and (c) addressees.]

(3) In arranging for the publication of information or advice under this section, OFCOM must have regard to the need to exclude from publication, so far as that is practicable, the matters which are confidential in accordance with subsections (4) and (5).

(4) A matter is confidential under this subsection if— (a) it relates specifically to the affairs of a particular body; and

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(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

(5) A matter is confidential under this subsection 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.

(6) The publication of information or advice under this section must be in such manner as OFCOM consider appropriate.

Textual Amendments F37 Word in s. 26(1) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 8(a) (with Sch. 3 para. 2) F38 S. 26(2)(ba) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 8(b) (with Sch. 3 para. 2) F39 Word in s. 26(2)(c) omitted (1.10.2011) by virtue of Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch.

12 para. 61(2)(a); S.I. 2011/2329, art. 3 F40 S. 26(2)(e) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 61(2)(b);

S.I. 2011/2329, art. 3 F41 S. 26(2A) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 61(3); S.I.

2011/2329, art. 3

Commencement Information I36 S. 26(1)(2)(a)-(c)(3)-(6) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1),

Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I37 S. 26(1) (2)(a)-(c) (3)-(6) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art.

3(1), Sch. 1 (with art. 11) I38 S. 26(2)(d) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Employment in broadcasting

27 Training and equality of opportunity

(1) It shall be the duty of OFCOM to take all such steps as they consider appropriate for promoting the development of opportunities for the training and retraining of persons—

(a) for employment by persons providing television and radio services; and (b) for work in connection with the provision of such services otherwise than as

an employee.

(2) It shall be the duty of OFCOM to take all such steps as they consider appropriate for promoting equality of opportunity in relation to both—

(a) employment by those providing television and radio services; and (b) the training and retraining of persons for such employment.

(3) It shall also be the duty of OFCOM, in relation to such employment, training and retraining, to take all such steps as they consider appropriate for promoting the equalisation of opportunities for disabled persons.

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(4) The reference in subsection (2) to equality of opportunity is a reference to equality of opportunity—

(a) between men and women; and (b) between persons of different racial groups.

(5) In this section— “disabled” has the same meaning as in [F42the Equality Act 2010 or, in

Northern Ireland,] the Disability Discrimination Act 1995 (c. 50); “racial group” has the same meaning as in the [F43Equality Act 2010] or,

in Northern Ireland, the Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6)).

(6) The Secretary of State may by order amend subsection (4) by adding any other form of equality of opportunity that he considers appropriate.

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

Textual Amendments F42 Words in s. 27(5) inserted by 2010 c. 15, Sch. 26 Pt. 1 para. 54(a) (as inserted (E.W.S.) (1.10.2010) by

The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 5) (see S.I. 2010/2317, art. 2)

F43 Words in s. 27(5) substituted by 2010 c. 15, Sch. 26 Pt. 1 para. 54(b) (as inserted (E.W.S.) (1.10.2010) by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 5) (see S.I. 2010/2317, art. 2)

Commencement Information I39 S. 27 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Charging

28 General power to charge for services

(1) OFCOM may provide a service to which this section applies to any person on such terms as to the making of payments to OFCOM—

(a) as they may determine in advance; or (b) as may be agreed between that person and OFCOM.

(2) This section applies to a service which is provided by OFCOM to a person in the course of carrying out their functions and is neither—

(a) a service which OFCOM are under a duty to provide to that person; nor (b) one in respect of which express provision is made by or under an enactment

for authorising or forbidding the payment of fees or charges.

(3) In this section references to providing a service to a person include references to a service consisting in—

(a) the giving of advice to that person;

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(b) the entry of his particulars in a register or other record kept by OFCOM otherwise than in pursuance of an express statutory duty to keep the register or record; or

(c) the taking of steps for the purposes of determining whether to grant an application for an entry in a register or record so kept.

Commencement Information I40 S. 28 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

[F4428A International recognition of satellite frequency assignments: power to charge fees

(1) This section applies where functions conferred on OFCOM under section 22 include functions of the administration of the United Kingdom under the ITU Radio Regulations.

(2) OFCOM may require any person to pay them a fee for doing satellite filing work at the request of that person.

(3) In this section “satellite filing work” means anything connected with obtaining or maintaining international recognition under the ITU Radio Regulations of assignments (or changes in assignments) of radio frequencies to stations in satellite systems or satellite networks.

(4) OFCOM may vary from time to time the amount of any fee set by them under this section.

(5) OFCOM may not require a person to pay a fee under this section unless they have taken such steps as they consider appropriate to bring the fact that they charge the fee, and the amount of the fee, to the attention of those persons who, in their opinion, are likely to be required to pay it.

(6) As soon as reasonably practicable after the end of each reporting year, OFCOM must publish a statement setting out—

(a) the aggregate amount of the fees charged under this section that have been received by OFCOM during that year;

(b) the aggregate amount of the fees charged under this section during that year which remain outstanding and are likely to be paid or recovered; and

(c) the total cost to OFCOM of doing the requested satellite filing work they have done during that year.

(7) If the total of the amounts set out in a statement under subsection (6)(a) and (b) exceeds the total cost set out under subsection (6)(c), OFCOM must take this into account with a view to securing that the aggregate amount of fees charged under this section in the following reporting year does not exceed the likely total cost to them of doing requested satellite filing work during that year.

(8) In this section— “administration”, “assignment” (of a radio frequency), “station”, “satellite

system” and “satellite network” have the same meanings as in the ITU Radio Regulations;

“reporting year” means—

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(a) the period beginning with the coming into force of this section and ending with the next 31st March, or

(b) any subsequent period of twelve months beginning with 1st April; “the ITU Radio Regulations” means the radio regulations of the

International Telecommunication Union.]

Textual Amendments F44 S. 28A inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 101(2), 118(6) (with s. 101(4));

S.I. 2017/765, reg. 2(cc)

Guarantees

29 Secretary of State guarantees for OFCOM borrowing

(1) The Secretary of State may guarantee— (a) the repayment of the principal of any borrowing by OFCOM; (b) the payment of interest on any such borrowing; and (c) the discharge of other financial obligations incurred by OFCOM in connection

with any such borrowing.

(2) The power of the Secretary of State to give a guarantee under this section is a power (subject to subsection (3)) to give it in such manner and on such conditions as he thinks fit.

(3) The Secretary of State must not give a guarantee under this section if the aggregate of—

(a) the amounts that he may be required to pay for fulfilling that guarantee, and (b) the amounts that he may be required to pay for fulfilling other guarantees

previously given under this section and still in force, exceeds £5 million.

(4) The Secretary of State may by order substitute another amount for the amount for the time being specified in subsection (3).

(5) No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of the House of Commons.

(6) Immediately after a guarantee is given under this section, the Secretary of State must lay a statement of the guarantee before each House of Parliament.

(7) Where any sum is paid by the Secretary of State under a guarantee given under this section, he must lay a statement relating to that sum before each House of Parliament as soon as practicable after the end of each of the financial years—

(a) beginning with the one in which the sum is paid; and (b) ending with the one in which OFCOM’s liabilities under subsection (8) in

respect of that sum are finally discharged.

(8) If sums are paid by the Secretary of State in fulfilment of a guarantee given under this section OFCOM must pay him—

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(a) such amounts in or towards the repayment to him of those sums as he may direct; and

(b) interest, at such rates as he may determine, on amounts outstanding under this subsection.

(9) Payments to the Secretary of State under subsection (8) must be made at such times and in such manner as he may determine.

Commencement Information I41 S. 29 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

Provisions supplemental to transfer of functions

30 Transfers of property etc. from pre-commencement regulators

(1) The Secretary of State may, by a direction to any of the pre-commencement regulators, require that regulator to make one or more schemes for the transfer from that regulator to OFCOM of such of the regulator’s property, rights and liabilities as may be specified or described in the direction.

(2) Where a pre-commencement regulator is required to make a scheme, the scheme must be made by such date as may be specified in the direction.

(3) Before making a scheme in pursuance of a direction under subsection (1), a pre- commencement regulator must consult OFCOM.

(4) A pre-commencement regulator who makes a scheme in pursuance of a direction under subsection (1) shall submit that scheme to the Secretary of State for approval.

(5) A scheme that is required to be so submitted shall have effect only if, and to the extent that, it is approved by the Secretary of State.

(6) The Secretary of State, in approving a scheme, may do so subject to such modifications as he thinks fit.

(7) Where the Secretary of State approves a scheme subject to modifications specified by him, it shall have effect with those modifications.

(8) A scheme approved by the Secretary of State under this section shall come into force either—

(a) if no time is appointed under paragraph (b), at the time when the approval is given; or

(b) if the Secretary of State appoints a later time for the coming into force of the scheme (whether when approving the scheme or by subsequently varying a time appointed under this paragraph), at that later time.

(9) Where a scheme is submitted to the Secretary of State under this section, he must— (a) consult OFCOM about any proposal of his to approve the scheme; and (b) consult both OFCOM and the pre-commencement regulator in question about

any modifications subject to which he proposes to give his approval, or about any proposal of his to refuse approval.

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(10) The Secretary of State may, after consulting OFCOM, himself make a scheme for the transfer of property, rights and liabilities—

(a) from a pre-commencement regulator to OFCOM; or (b) from himself to OFCOM;

and such a scheme shall come into force on such day as the Secretary of State may appoint (whether in the scheme or subsequently).

(11) The Secretary of State is not to make a scheme for the transfer of property, rights and liabilities from a pre-commencement regulator to OFCOM unless—

(a) that regulator has failed to comply with a direction under subsection (1); or (b) that regulator has complied with such a direction by submitting a scheme to

the Secretary of State that he has decided not to approve (with or without modifications).

(12) Schedule 2 (which makes further provision about schemes under this section) shall have effect.

Commencement Information I42 S. 30 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

31 Transitional functions and abolition of pre-commencement regulators

(1) It shall be the duty of the pre-commencement regulators to take all such steps as are necessary or expedient for ensuring that OFCOM are able effectively to carry out OFCOM’s functions from the time when they are vested in OFCOM.

(2) The pre-commencement regulators, in taking those steps, must comply with every direction given to them by the Secretary of State.

(3) The pre-commencement regulators and OFCOM shall each have a duty to provide the Secretary of State with all such information and assistance as he may require for the purposes of, or in connection with—

(a) his power to give directions under subsection (1) of section 30; and (b) his powers and duties in relation to the approval and making of schemes under

that section.

(4) On such day as the Secretary of State may by order appoint— (a) the office of the Director General of Telecommunications shall be abolished;

and (b) the Broadcasting Standards Commission, the Independent Television

Commission and the Radio Authority shall cease to exist.

(5) Section 54 of the Telecommunications Act 1984 (c. 12) (which provides for the establishment of advisory bodies) shall cease to have effect; and each of the bodies established under that section shall cease to exist on such day as the Secretary of State may by order appoint.

(6) Different days may be appointed under this section for the Director General of Telecommunications and for each of the different bodies mentioned in subsections (4) (b) and (5).

42 Communications Act 2003 (c. 21) Part 2 – Networks, services and the radio spectrum

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Commencement Information I43 S. 31 partly in force; s. 31(1)(2)(3)(4)(6) in force at Royal Assent see s. 411(3) I44 S. 31(5) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

PART 2

NETWORKS, SERVICES AND THE RADIO SPECTRUM

CHAPTER 1

ELECTRONIC COMMUNICATIONS NETWORKS AND SERVICES

Preliminary

32 Meaning of electronic communications networks and services

(1) In this Act “electronic communications network” means— (a) a transmission system for the conveyance, by the use of electrical, magnetic

or electro-magnetic energy, of signals of any description; and (b) such of the following as are used, by the person providing the system and in

association with it, for the conveyance of the signals— (i) apparatus comprised in the system;

(ii) apparatus used for the switching or routing of the signals; F45... (iii) software and stored data[F46; and (iv) (except for the purposes of sections 125 to 127) other resources,

including network elements which are not active.]

(2) In this Act “electronic communications service” means a service consisting in, or having as its principal feature, the conveyance by means of an electronic communications network of signals, except in so far as it is a content service.

[F47(3) In this Act “associated facility” means a facility, element or service which is available for use, or has the potential to be used, in association with the use of an electronic communications network or electronic communications service (whether or not one provided by the person making the facility, element or service available) for the purpose of—

(a) making the provision of that network or service possible; (b) making possible the provision of other services provided by means of that

network or service; or (c) supporting the provision of such other services.]

(4) In this Act— (a) references to the provision of an electronic communications network include

references to its establishment, maintenance or operation; (b) references, where one or more persons are employed or engaged to provide

the network or service under the direction or control of another person, to the person by whom an electronic communications network or electronic

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communications service is provided are confined to references to that other person; and

(c) references, where one or more persons are employed or engaged to make facilities available under the direction or control of another person, to the person by whom any associated facilities are made available are confined to references to that other person.

(5) Paragraphs (a) and (b) of subsection (4) apply in relation to references in subsection (1) to the provision of a transmission system as they apply in relation to references in this Act to the provision of an electronic communications network.

(6) The reference in subsection (1) to a transmission system includes a reference to a transmission system consisting of no more than a transmitter used for the conveyance of signals.

(7) In subsection (2) “a content service” means so much of any service as consists in one or both of the following—

(a) the provision of material with a view to its being comprised in signals conveyed by means of an electronic communications network;

(b) the exercise of editorial control over the contents of signals conveyed by means of a such a network.

(8) In this section references to the conveyance of signals include references to the transmission or routing of signals or of parts of signals and to the broadcasting of signals for general reception.

(9) For the purposes of this section the cases in which software and stored data are to be taken as being used for a particular purpose include cases in which they—

(a) have been installed or stored in order to be used for that purpose; and (b) are available to be so used.

(10) In this section “signal” includes— (a) anything comprising speech, music, sounds, visual images or communications

or data of any description; and (b) signals serving for the impartation of anything between persons, between

a person and a thing or between things, or for the actuation or control of apparatus.

Textual Amendments F45 Word in s. 32(1)(b)(ii) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 9(a)(i) (with Sch. 3 para. 2) F46 S. 32(1)(b)(iv) and word inserted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 9(a)(ii) (with Sch. 3 para. 2) F47 S. 32(3) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 9(b) (with Sch. 3 para. 2)

Commencement Information I45 S. 32 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I46 S. 32 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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Notification by providers

33 Advance notification to OFCOM

(1) A person shall not— (a) provide a designated electronic communications network, (b) provide a designated electronic communications service, or (c) make available a designated associated facility,

unless, before beginning to provide it or to make it available, he has given a notification to OFCOM of his intention to provide that network or service, or to make that facility available.

(2) An electronic communications network, electronic communications service or associated facility is designated for the purposes of this section if it is of a description of networks, services or facilities that is for the time being designated by OFCOM as a description of networks, services or facilities for which notification under this section is required.

(3) A person who has given a notification for the purposes of subsection (1) must, before—

(a) providing or making available the notified network, service or facility with any significant differences, or

(b) ceasing to provide it or to make it available, give a notification to OFCOM of the differences or (as the case may be) of his intention to cease to provide the network or service or to make the facility available.

(4) A notification for the purposes of this section must— (a) be sent to OFCOM in such manner as OFCOM may require; and (b) contain all such information as OFCOM may require.

(5) The only information OFCOM may require a notification to contain is— (a) a declaration of the relevant proposal of the person giving the notification; (b) the time when it is intended that effect should be given to the relevant

proposal; (c) particulars identifying the person giving the notification; (d) particulars identifying one or more persons with addresses in the United

Kingdom who, for the purposes of matters relating to the notified network, service or facility, are authorised to accept service at an address in the United Kingdom on behalf of the person giving the notification;

(e) particulars identifying one or more persons who may be contacted if there is an emergency that is caused by or affects the provision of the notified network, service or facility;

(f) addresses and other particulars necessary for effecting service on or contacting each of the persons mentioned in paragraphs (c) to (e).

(6) The declaration of the relevant proposal that may be required under subsection (5) is whichever of the following is appropriate in the case of the person giving the notification—

(a) a declaration of his proposal to provide the network or service described in the notification or to make available the facility so described;

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(b) a declaration of his proposal to make the modifications that are so described of the network, service or facility specified in the notification; or

(c) a declaration of his proposal to cease to provide the network or service so specified or to cease to make available the facility so specified.

(7) Requirements imposed under subsection (4) are not to require a notification by a person to contain particulars falling within subsection (5)(d) in a case in which—

(a) that person is resident in a member State or has a place of business in a member State;

(b) the notification contains a statement under subsection (8); (c) the notification sets out an address in a member State at which service will be

accepted by the person who, in accordance with that statement, is authorised to accept it; and

(d) OFCOM are satisfied that adequate arrangements exist for effecting service on that person at that address.

(8) That statement is one which— (a) declares that the person authorised, for the purposes of matters relating to the

notified network, service or facilities, to accept service on behalf of the person giving the notification is that person himself; or

(b) identifies another person who is resident in a member State, or has a place of business in such State, as the person so authorised.

(9) The reference in subsection (3) to providing or making available a notified network, service or facility with significant differences is a reference to continuing to provide it, or to make it available, after a change in whatever falling within subsection (5)(a) to (f) was last notified to OFCOM under this section.

(10) References in this section to accepting service at an address are references— (a) to accepting service of documents or process at that address; or (b) otherwise to receiving notifications at that address;

and the reference in subsection (7) to effecting service at an address is to be construed accordingly.

(11) Where a description of electronic communications network, electronic communications service or associated facility is designated for the purposes of this section at a time when a network, service or facility of that description is already being provided or made available by a person—

(a) that person’s obligation under this section to give a notification before beginning to provide or make available that network, service or facility shall have effect as an obligation to give a notification within such period after the coming into force of the designation as may be specified in the notice in which the designation is contained; and

(b) that notification is to be one stating that that person is already providing the network or service, or making the facility available (rather than that it is his intention to do so).

(12) Subsection (11) has effect subject to any transitional provision— (a) which is contained in the notification setting out the designation; and (b) treats a person as having given the notification required by that subsection.

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Commencement Information I47 S. 33 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I48 S. 33 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

34 Designations and requirements for the purposes of s. 33

(1) Before— (a) making or withdrawing a designation for the purposes of section 33, or (b) imposing or modifying a requirement under subsection (4) of that section,

OFCOM must consult such of the persons who, in their opinion, are likely to be affected by it as they think fit.

(2) Before making or withdrawing a designation for the purposes of section 33 OFCOM must also consult the Secretary of State.

(3) The way in which a designation for the purposes of section 33 or a requirement under subsection (4) of that section—

(a) is to be made or imposed, or (b) may be withdrawn or modified,

is by a notice published in such manner as OFCOM consider appropriate for bringing the designation, requirement, withdrawal or modification to the attention of the persons who, in their opinion, are likely to be affected by it.

(4) A designation for the purposes of section 33 may be framed by reference to any such description of networks, services or facilities, or such other factors, as OFCOM think fit.

(5) Requirements imposed under section 33(4) may make different provision for different cases.

Commencement Information I49 S. 34 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I50 S. 34 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

35 Notification of contraventions of s. 33

(1) Where OFCOM determine that there are reasonable grounds for believing that a person has contravened section 33, they may give him a notification under this section.

(2) A notification under this section is one which— (a) sets out the determination made by OFCOM; F48...

[F49(b) specifies the contravention in respect of which the determination has been made;

(c) specifies the period during which the person notified has an opportunity to make representations;

(d) specifies information to be provided by the person to OFCOM; and

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(e) specifies any penalty which OFCOM are minded to impose in accordance with section 35A.]

F50(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F50(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F50(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F50(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F50(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) A notification under this section— (a) may be given in respect of more than one contravention of section 33; and (b) if it is given in respect of a continuing contravention, may be given in respect

of any period during which the contravention has continued.

(9) Where a notification under this section has been given to a person in respect of a contravention of section 33, OFCOM may give a further notification in respect of the same contravention if, and only if—

(a) the subsequent notification is in respect of so much of a period during which the contravention in question was continuing as falls after a period to which the earlier notification relates; or

(b) the earlier notification has been withdrawn without a penalty having been imposed by reference to the notified contravention.

F51(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F48 Word in s. 35(2)(a) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 10(a) (with Sch. 3 paras. 2, 3) F49 S. 35(2)(b)-(e) substituted for s. 35(2)(b) (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 10(a) (with Sch. 3 paras. 2, 3) F50 S. 35(3)-(7) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 10(b) (with Sch. 3 paras. 2, 3) F51 S. 35(10) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 10(b) (with Sch. 3 paras. 2, 3)

Commencement Information I51 S. 35 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I52 S. 35 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F5235A. Penalties for contravention of section 33

(1) This section applies where a person is given a notification under section 35 which specifies a proposed penalty.

(2) Where the notification relates to more than one contravention, a separate penalty may be specified in respect of each contravention.

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(3) Where the notification relates to a continuing contravention, no more than one penalty may be specified in respect of the period of contravention specified in the notification.

(4) But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a) the giving of a confirmation decision under section 36(4)(c) which requires immediate action; or

(b) the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(5) The amount of a penalty under subsection (4) is to be such amount not exceeding £100 per day as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.

(6) The amount of any other penalty specified in a notification under section 35 is to be such amount not exceeding £10,000 as OFCOM determine to be—

(a) appropriate, and (b) proportionate to the contravention in respect of which it is imposed.

(7) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (6).

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

Textual Amendments F52 S. 35A inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 11 (with Sch. 3 paras. 2, 3)

36 [F53Confirmation decision] for contravention of s. 33

(1) This section applies where— (a) a person (“the notified provider”) has been given a notification under

section 35; (b) OFCOM have allowed the notified provider an opportunity of making

representations about the notified determination; and (c) the period allowed for the making of the representations has expired.

[F54(2) OFCOM may— (a) give the notified provider a decision (a “confirmation decision”) confirming

the imposition of requirements in accordance with the notification under section 35; or

(b) inform the notified provider that they are satisfied with the notified provider’s representations and that no further action will be taken.

(3) OFCOM may not give a confirmation decision to the notified provider unless, after considering any representations, they are satisfied that the notified provider has, in one or more of the respects notified, been in contravention of section 33.]

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[F55(4) A confirmation decision— (a) must be given to the person without delay; (b) must include reasons for the decision; (c) may require immediate action by the person to comply with requirements

imposed by virtue of section 35(2)(d), or may specify a period within which the person must comply with those requirements; and

(d) may require the person to pay— (i) the penalty specified in the notification under section 35, or

(ii) such lesser penalty as OFCOM consider appropriate in the light of the person’s representations or steps taken by the person to comply with the condition or remedy the consequences of the contravention, and

may specify the period within which the penalty is to be paid.]

(5) It shall be the duty of a person to whom [F56a confirmation decision] has been given to comply with [F57any requirement imposed by it] .

(6) That duty 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.

[F58(7) A penalty imposed by a confirmation decision— (a) must be paid to OFCOM; and (b) if not paid within the period specified by them, is to be recoverable by them

accordingly.]

Textual Amendments F53 Words in s. 36 heading substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 12(e) (with Sch. 3 paras. 2, 3) F54 S. 36(2)(3) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 12(a) (with Sch. 3 paras. 2, 3) F55 S. 36(4) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 12(b) (with Sch. 3 paras. 2, 3) F56 Words in s. 36(5) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 12(c)(i) (with Sch. 3 paras. 2, 3) F57 Word in s. 36(5) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 12(c)(ii) (with Sch. 3 paras. 2, 3) F58 S. 36(7) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 12(d) (with Sch. 3 paras. 2, 3)

Commencement Information I53 S. 36 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I54 S. 36 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F5937 Penalties for contravention of s. 33

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Textual Amendments F59 S. 37 omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 13 (with Sch. 3 paras. 2, 3)

Commencement Information I55 S. 37 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I56 S. 37 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Administrative charges imposed on providers

38 Fixing of charges

(1) A person who, at any time in a charging year, is a person to whom this section applies shall—

(a) in respect of the network, service or facility provided or made available by him,

(b) in respect of the application to him of a universal service condition relating to matters mentioned in section 66(3),

(c) in respect of the application to him of an SMP apparatus condition, or (d) in respect of the application of the electronic communications code in his case,

pay to OFCOM the administrative charge (if any) that is fixed by them for the case that is applicable to him.

(2) This section applies to a person at a time if, at that time, he is— (a) providing an electronic communications network of a description which is, at

that time, designated for the purposes of this section; (b) providing an electronic communications service of a description which is, at

that time, so designated; (c) making available an associated facility of a description which is, at that time,

so designated; (d) a person who without being a communications provider is designated in

accordance with regulations under section 66; (e) a supplier of apparatus to whom an SMP apparatus condition applies; or (f) a person in whose case the electronic communications code applies by virtue

of a direction given under section 106 otherwise than for the purposes of the provision by him of an electronic communications network of a designated description.

(3) OFCOM are not to fix the administrative charge for a charging year unless— (a) at the time the charge is fixed there is in force a statement by OFCOM of the

principles that OFCOM are proposing to apply in fixing charges under this section for that year; and

(b) the charge is fixed in accordance with those charging principles.

(4) Those principles must be such as appear to OFCOM to be likely to secure, on the basis of such estimates of the likely costs as it is practicable for them to make—

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(a) that, on a year by year basis, the aggregate amount of the charges payable to OFCOM is sufficient to meet, but does not exceed, the annual cost to OFCOM of carrying out the functions mentioned in subsection (5);

(b) that the cost of carrying out those functions is met by the imposition of charges that are objectively justifiable and proportionate to the matters in respect of which they are imposed;

(c) that the relationship between meeting the cost of carrying out those functions and the amounts of the charges is transparent;

(d) that the charges fixed for persons who are liable to charges by reason only of being persons to whom SMP apparatus conditions apply are referable only to things done in, or in connection with, the setting, modification or enforcement of SMP apparatus conditions or the carrying out of the functions mentioned in subsection (6)(n( � and

(e) that the charges fixed for persons who are liable to charges by reason only of being persons falling within subsection (2)(f), are referable only to costs incurred in, or in connection with, the carrying out of the functions mentioned in subsection (6)(g) and (l).

(5) Those functions are— (a) the relevant Chapter 1 functions; (b) the carrying out for a Chapter 1 purpose of any research by OFCOM or the

Consumer Panel into any of the matters mentioned in section 14(1)(c) to (f); (c) the publication under section 26 of any information or advice that it appears

to OFCOM to be appropriate to make available to the persons mentioned in subsection (2)(a) to (c) of that section; and

(d) the function of taking any steps that OFCOM consider it necessary to take— (i) in preparation for the carrying out of any of the functions mentioned

in paragraphs (a) to (c) of this subsection; or (ii) for the purpose of facilitating the carrying out of those functions or

otherwise in connection with carrying them out.

(6) The relevant Chapter 1 functions are— (a) OFCOM’s functions under sections 33 to 37 and 44; (b) the setting, modification and enforcement of conditions under section 45; (c) the supervision, as respects the requirements of sections 33 to 37 and of

any such conditions, of communications providers and of persons who make associated facilities available;

(d) the monitoring of compliance with those requirements and with any such conditions;

(e) the functions conferred on OFCOM by or under section 55; F60(f) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(g) their functions under sections 106 to 119; (h) their functions under sections 185 to 191; (i) securing international co-operation in relation to the regulation of

electronic communications networks, electronic communications services and associated facilities;

(j) securing the harmonisation and standardisation of the regulation of electronic communications networks, electronic communications services and associated facilities;

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(k) market analysis and any monitoring of the controls operating in the markets for electronic communications networks, electronic communications services and associated facilities;

(l) OFCOM’s functions under this section and sections 39 to 43.

(7) A purpose is a Chapter 1 purpose for the purposes of subsection (5)(b) if it is the purpose of ascertaining the effectiveness of one or more of the following—

(a) the regulation of the provision of electronic communications networks or electronic communications services;

(b) the regulation of the making available of associated facilities; (c) the mechanisms in place for the handling, by communications providers and

by persons making such facilities available, of complaints made to them by consumers in markets for such services or facilities;

(d) the mechanisms in place for resolving disputes between such consumers and communications providers or persons who make such facilities available.

(8) OFCOM’s power to fix charges for a particular case includes— (a) power to provide that the charges in that case are to be equal to the amounts

produced by a computation made in the manner, and by reference to the factors, specified by them;

(b) power to provide for different charges to be imposed in that case on different descriptions of persons; and

(c) power to provide for particular descriptions of persons falling within subsection (2)(d) to (f) to be excluded from the liability to pay charges in that case.

(9) As soon as reasonably practicable after the end of each charging year, OFCOM must publish a statement setting out, in respect of that year—

(a) the aggregate amounts of the administrative charges for that year that have been received by OFCOM;

(b) the aggregate amount of the administrative charges for that year that remain outstanding and are likely to be paid or recovered; and

(c) the cost to OFCOM of carrying out the functions mentioned in subsection (5).

(10) Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (9) shall be carried forward and taken into account in determining what is required to satisfy the requirement imposed by virtue of subsection (4)(a) in relation to the following year.

(11) Section 34 applies in relation to the making and withdrawal of a designation for the purposes of this section as it applies to the making and withdrawal of a designation for the purposes of section 33.

[F61(11A) For the purposes of this section, the cost to OFCOM of carrying out the functions mentioned in subsection (5) does not include the cost to OFCOM of doing anything for which they charge a fee under section 28A.]

(12) In this section “charging year” means— (a) the period beginning with the commencement of this section and ending with

the next 31st March; or (b) any subsequent period of twelve months beginning with 1st April.

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Textual Amendments F60 S. 38(6)(f) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 14 (with Sch. 3 para. 2) F61 S. 38(11A) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 101(3), 118(6); S.I.

2017/765, reg. 2(cc)

Commencement Information I57 S. 38 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I58 S. 38 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

39 Supplemental provision about fixing charges

(1) OFCOM’s power to fix a charge under section 38— (a) is to be exercisable only by the publication or giving of such notification

as they consider appropriate for bringing the charge to the attention of the persons who, in their opinion, are likely to be affected by it; and

(b) includes power, by setting it out in that notification, to fix the time at which the charge is to become due to OFCOM.

(2) A charge fixed under section 38 for a charging year may be fixed in terms providing for a deduction from the charge on a proportionate basis to be made for a part of the year during which—

(a) the network, service or facility in respect of which it is fixed is not provided or made available by the person otherwise liable to the charge;

(b) the universal service condition in respect of which it is fixed does not apply in that person’s case;

(c) the SMP apparatus condition in respect of which it is fixed does not apply in that person’s case; or

(d) the electronic communications code does not apply in that person’s case.

(3) Such a charge may also be fixed (subject to subsection (4)) so that it is referable, in whole or in part—

(a) to the provision or making available of a network, service or facility during a part of the year falling before the fixing of the charge;

(b) to the application of a universal service condition to a person for a part of the year so falling;

(c) to a person’s being a person to whom an SMP apparatus condition applies for a part of the year so falling; or

(d) to the application of the electronic communications code in a person’s case during a part of the year so falling.

(4) A charge may be fixed so as to be referable to a time before it is fixed to the extent only that both—

(a) the imposition of the charge, and (b) the amount of the charge,

are required by, and consistent with, the statement of charging principles in force at the beginning of the charging year.

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(5) Before making or revising a statement of charging principles, OFCOM must consult such of the persons who, in OFCOM’s opinion, are likely to be affected by those principles as they think fit.

(6) The way in which a statement of charging principles must be made or may be revised is by the publication of the statement or revised statement in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(7) References in this section to a statement of charging principles are references to a statement by OFCOM of the principles that they are proposing to apply in fixing charges under section 38 for a charging year.

(8) In this section “charging year” has the same meaning as in section 38.

Commencement Information I59 S. 39 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I60 S. 39 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

40 Notification of non-payment of charges

(1) OFCOM are not entitled to bring proceedings for the recovery from a person of an administrative charge fixed for any year under section 38 unless they have given that person a notification under this section with respect to the amount they are seeking to recover.

(2) Where OFCOM determine that there are reasonable grounds for believing that a person is in contravention (whether in respect of the whole or a part of a charge) of a requirement to pay such an administrative charge, they may give him a notification under this section.

(3) A notification under this section is one which— (a) sets out the determination made by OFCOM; and (b) specifies the period during which the person notified has an opportunity of

[F62making representations about the notified determination] . F63(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F63(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F63(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F63(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F63(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) A notification under this section— (a) may be given in respect of contraventions of more than one requirement to

pay an administrative charge; and (b) if it is given in respect of a continuing contravention, may be given in respect

of any period during which the contravention has continued.

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(10) Where a notification under this section has been given to a person in respect of an amount outstanding, OFCOM may give a further notification in respect of the whole or a part of that amount if, and only if—

(a) the subsequent notification is in respect of so much of a period during which that amount was outstanding as falls after a period to which the earlier notification relates; or

(b) the earlier notification has been withdrawn without a penalty having been imposed in respect of the matters notified.

F64(11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F62 Words in s. 40(3)(b) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 15(a) (with Sch. 3 paras. 2, 4) F63 S. 40(4)-(8) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 15(b) (with Sch. 3 paras. 2, 4) F64 S. 40(11) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 15(b) (with Sch. 3 paras. 2, 4)

Commencement Information I61 S. 40 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I62 S. 40 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

41 Penalties for non-payment of charges

(1) This section applies where— (a) a person (“the notified charge payer”) has been given a notification under

section 40; (b) OFCOM have allowed the notified charge payer an opportunity of making

representations about the notified determination; and (c) the period allowed for the making of the representations has expired.

(2) OFCOM may impose a penalty on the notified charge payer if he— (a) has, in one or more of the respects notified, been in contravention of a

requirement to pay an administrative charge fixed under section 38; F65... F65(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Where a notification under section 40 relates to more than one contravention, a separate penalty may be imposed in respect of each contravention.

(4) Where such a notification relates to a continuing contravention, no more than one penalty may be imposed in respect of the period of contravention specified in the notification.

(5) The amount of a penalty imposed under this section is to be such amount, not exceeding twice the amount of the charge fixed for the relevant year, as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.

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(6) In making that determination OFCOM must have regard to— (a) any representations made to them by the notified charge payer; and (b) any steps taken by him towards paying the amounts that he was notified under

section 40 were outstanding.

(7) Where OFCOM impose a penalty on a person under this section, they shall— (a) [F66without delay,] notify that person of that decision and of their reasons for

that decision; and (b) in that notification, fix a reasonable period after it is given as the period within

which the penalty is to be paid.

(8) A penalty imposed under this section— (a) must be paid to OFCOM; and (b) if not paid within the period fixed by them, is to be recoverable by them

accordingly.

(9) In this section “the relevant year”, in relation to a contravention of a requirement to pay the whole or a part of the administrative charge fixed for any year, means that year.

(10) The provisions of this section do not affect OFCOM’s power, apart from those provisions, to bring proceedings (whether before or after the imposition of a penalty under this section) for the recovery of the whole or part of an amount due to them under section 38(1).

Textual Amendments F65 S. 41(2)(b) and preceding word omitted (26.5.2011) by virtue of The Electronic Communications and

Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 16(a) (with Sch. 3 paras. 2, 4)

F66 Words in s. 41(7)(a) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 16(b) (with Sch. 3 paras. 2, 4)

Commencement Information I63 S. 41 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I64 S. 41 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

42 Suspending service provision for non-payment

(1) OFCOM may give a direction under this section to a person who is a communications provider or who makes associated facilities available (“the contravening provider”) if they are satisfied—

(a) that he is or has been in [F67serious or repeated] contravention of requirements to pay administrative charges fixed under section 38 (whether in respect of the whole or a part of the charges);

(b) that the contraventions are not contraventions relating only to charges in respect of the application to the contravening provider of SMP apparatus conditions;

[F68(ba) that, in the case of a single serious contravention, a notification has been given to the contravening provider under section 40 and the period for making representations under that section has expired;]

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(c) that [F69, in the case of a repeated contravention,] the bringing of proceedings for the recovery of the amounts outstanding has failed to secure complete compliance by the contravening provider with the requirements to pay the charges fixed in his case, or has no reasonable prospect of securing such compliance;

(d) that [F70, in the case of a repeated contravention,] an attempt, by the imposition of penalties under section 41, to secure such compliance has failed; and

[F71(e) that the giving of the direction is appropriate and proportionate to the contravention in respect of which it is given.]

(2) A direction under this section is— (a) a direction that the entitlement of the contravening provider to provide

electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

(b) a direction that that entitlement is restricted in the respects set out in the direction.

(3) A direction under this section— (a) must specify the networks, services and facilities to which it relates; and (b) except so far as it otherwise provides, takes effect for an indefinite period

beginning with the time at which it is notified to the person to whom it is given.

(4) A direction under this section— (a) in providing for the effect of a suspension or restriction to be postponed may

provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

(5) Those conditions may include a condition requiring the making of payments— (a) by way of compensation for loss or damage suffered by the contravening

provider’s customers as a result of the direction; or (b) in respect of annoyance, inconvenience or anxiety to which they have been

put in consequence of the direction.

(6) OFCOM are not to give a direction under this section unless they have— (a) notified the contravening provider of the proposed direction and of the

conditions (if any) which they are proposing to impose by that direction; (b) provided him with an opportunity of making representations about the

proposals and of proposing steps for remedying the situation; and (c) considered every representation and proposal made to them during the period

allowed by them for the contravening provider to take advantage of that opportunity.

[F72(7) That period is such reasonable period as OFCOM may specify, beginning with the day of the giving of the notification.]

(8) If OFCOM consider it appropriate to do so (whether or not in consequence of any representations or proposals made to them), they may revoke a direction under this section, or modify its conditions—

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(a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such networks, services or facilities, or parts

of a network, service or facility, as they may determine.

(9) For the purposes of this section there are repeated contraventions by a person of requirements to pay administrative charges to the extent that—

(a) in the case of a previous notification given to that person under section 40, OFCOM have determined for the purposes of section 41(2) that such a contravention did occur; and

(b) in the period of [F7324] months following the day of the making of that determination, one or more further notifications have been given to that person in respect of the same or different failures to pay administrative charges.

Textual Amendments F67 Words in s. 42(1)(a) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 17(a)(i) (with Sch. 3 paras. 2, 4) F68 S. 42(1)(ba) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 17(a)(ii) (with Sch. 3 paras. 2, 4) F69 Words in s. 42(1)(c) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 17(a)(iii) (with Sch. 3 paras. 2, 4) F70 Words in s. 42(1)(d) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 17(a)(iv) (with Sch. 3 paras. 2, 4) F71 S. 42(1)(e) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 17(a)(v) (with Sch. 3 paras. 2, 4) F72 S. 42(7) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 17(b) (with Sch. 3 paras. 2, 4) F73 Word in s. 42(9)(b) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 17(c) (with Sch. 3 paras. 2, 4, 5)

Commencement Information I65 S. 42 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I66 S. 42 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

43 Enforcement of directions under s. 42

(1) A person is guilty of an offence if he provides an electronic communications network or electronic communications service, or makes available any associated facility—

(a) while his entitlement to do so is suspended by a direction under section 42; or (b) in contravention of a restriction contained in such a direction.

(2) A person guilty of an offence under subsection (1) shall be liable— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine.

(3) The duty of a person to comply with a condition of a direction under section 42 shall be a duty owed to every person who may be affected by a contravention of the condition.

(4) Where a duty is owed by virtue of subsection (3) to a person—

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(a) a breach of the duty that causes that person to sustain loss or damage, and (b) an act which—

(i) by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and

(ii) is done wholly or partly for achieving that result, shall be actionable at the suit or instance of that person.

(5) In proceedings brought against a person by virtue of subsection (4)(a) it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition in question.

(6) Sections [F7496A] to 99 apply in relation to a contravention of conditions imposed by a direction under section 42 as they apply in relation to a contravention of conditions set under section 45.

Textual Amendments F74 Word in s. 43(6) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 18 (with Sch. 3 paras. 2, 4)

Commencement Information I67 S. 43 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I68 S. 43 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Register of providers required to notify or to pay charges

44 Duty of OFCOM to keep publicly accessible register

(1) It shall be the duty of OFCOM to establish and maintain a register for the purposes of section 33.

(2) OFCOM must record in the register— (a) every designation by them for the purposes of section 33 or 38; (b) every withdrawal by them of such a designation; (c) every notification given to them under section 33; and (d) every notification treated as given to them under that section by a transitional

provision made under subsection (12) of that section.

(3) Information recorded in the register must be so recorded in such manner as OFCOM consider appropriate.

(4) It shall be the duty of OFCOM to publish a notification setting out— (a) the times at which the register is for the time being available for public

inspection; and (b) the fees that must be paid for, or in connection with, an inspection of the

register.

(5) The publication of a notification under subsection (4) must be in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

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(6) OFCOM must make the register available for public inspection— (a) during such hours, and (b) on payment of such fees,

as are set out in the notification for the time being in force under subsection (4).

Commencement Information I69 S. 44 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I70 S. 44 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Conditions of entitlement to provide network or service etc.

45 Power of OFCOM to set conditions

(1) OFCOM shall have the power to set conditions under this section binding the persons to whom they are applied in accordance with section 46.

(2) A condition set by OFCOM under this section must be either— (a) a general condition; or (b) a condition of one of the following descriptions—

(i) a universal service condition; (ii) an access-related condition;

(iii) a privileged supplier condition; (iv) a significant market power condition (an “SMP condition”).

(3) A general condition is a condition which contains only provisions authorised or required by one or more of sections 51, 52, 57, 58 or 64.

(4) A universal service condition is a condition which contains only provisions authorised or required by section 67.

(5) An access-related condition is a condition which contains only provisions authorised by section 73.

(6) A privileged supplier condition is a condition which contains only the provision required by section 77.

(7) An SMP condition is either— (a) an SMP services condition; or (b) an SMP apparatus condition.

(8) An SMP services condition is a condition which contains only provisions which— (a) are authorised or required by one or more of sections 87 to [F7591] ; or (b) in the case of a condition applying to a person falling within section 46(8)(b),

correspond to provision authorised or required by one or more of sections 87 to [F7689A] .

(9) An SMP apparatus condition is a condition containing only provisions authorised by section 93.

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(10) OFCOM’s power to set a condition under this section making provision authorised or required by this Chapter includes each of the following—

(a) power to impose a requirement on the person or persons to whom the condition is applied to comply with such directions with respect to the matters to which the condition relates as may be given from time to time by OFCOM or by another person specified in the condition;

(b) power to impose an obligation with respect to those matters that is framed by reference to, or is conditional upon, the giving of a consent or of an approval, or on the making of a recommendation, by OFCOM or by another person so specified;

(c) power, for the purposes of provision made by virtue of either of the preceding paragraphs, to confer a discretion exercisable from time to time by OFCOM or by another person specified in the condition or determined in accordance with provision contained in it;

(d) power (subject to section 51(3)) to set different conditions for different cases (including different conditions in relation to different parts of the United Kingdom); and

(e) power to revoke or modify the conditions for the time being in force.

(11) The directions that may be authorised by virtue of subsection (10) do not include directions withdrawing, suspending or restricting a person’s entitlement—

(a) to provide, in whole or in part, any electronic communications network or electronic communications service; or

(b) to make available, in whole or in part, any associated facilities.

Textual Amendments F75 Word in s. 45(8)(a) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 19(a) (with Sch. 3 para. 2) F76 Word in s. 45(8)(b) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 19(b) (with Sch. 3 para. 2)

Commencement Information I71 S. 45 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I72 S. 45 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

46 Persons to whom conditions may apply

(1) A condition set under section 45 is not to be applied to a person except in accordance with the following provisions of this section.

(2) A general condition may be applied generally— (a) to every person providing an electronic communications network or electronic

communications service; or (b) to every person providing such a network or service of a particular description

specified in the condition.

(3) A universal service condition, access-related condition, privileged supplier condition or SMP condition may be applied to a particular person specified in the condition.

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(4) A privileged supplier condition may also be applied generally— (a) to every person to whom such a condition is required to apply under

section 77; or (b) to every such person who is of a particular description specified in the

condition.

(5) The particular person to whom a universal service condition is applied— (a) except in the case of a condition relating to matters mentioned in

subsection (3) of section 66, must be a communications provider designated in accordance with regulations under that section; and

(b) in that excepted case, must be a communications provider so designated or a person who is not such a provider but who is so designated for the purposes only of conditions relating to those matters.

(6) The particular person to whom an access-related condition is applied— (a) in the case of a condition falling within section 74(1), may be any person

whatever; and (b) in any other case, must be a person who provides an electronic

communications network or makes associated facilities available.

(7) The particular person to whom an SMP services condition is applied must— (a) be a communications provider or a person who makes associated facilities

available; and (b) fall within subsection (8).

(8) A person falls within this subsection if— (a) he is a person whom OFCOM have determined to be a person having

significant market power in a specific market for electronic communications networks, electronic communications services or associated facilities (a “services market”); or

(b) it appears to OFCOM that he is a person on whom it is necessary, for the purpose of securing compliance with an international obligation of the United Kingdom, to impose a condition containing provision that corresponds to provision which, in the case of a person falling within paragraph (a), must be made (or may be made) under any of sections 87 to [F7789A] .

(9) The particular person to whom an SMP apparatus condition is applied must be— (a) a person who supplies electronic communications apparatus; and (b) a person whom OFCOM have determined to be a person having significant

market power in a specific market for electronic communications apparatus (an “apparatus market”).

Textual Amendments F77 Word in s. 46(8)(b) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 20 (with Sch. 3 para. 2)

Commencement Information I73 S. 46 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I74 S. 46 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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47 Test for setting or modifying conditions

(1) OFCOM must not, in exercise or performance of any power or duty under this Chapter—

(a) set a condition under section 45, or (b) modify such a condition,

unless they are satisfied that the condition or (as the case may be) the modification satisfies the test in subsection (2).

(2) That test is that the condition or modification is— (a) objectively justifiable in relation to the networks, services, facilities, apparatus

or directories to which it relates [F78(but this paragraph is subject to subsection (3))] ;

(b) not such as to discriminate unduly against particular persons or against a particular description of persons;

(c) proportionate to what the condition or modification is intended to achieve; and (d) in relation to what it is intended to achieve, transparent.

[F79(3) Subsection (2)(a) does not apply in relation to the setting of a general condition.]

Textual Amendments F78 Words in s. 47(2)(a) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 21(a) (with Sch. 3 para. 2) F79 S. 47(3) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 21(b) (with Sch. 3 para. 2)

Commencement Information I75 S. 47 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I76 S. 47 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

48 Procedure for setting, modifying and revoking conditions

(1) Subject to the following provisions of this Chapter— (a) the way in which conditions are to be set or modified under section 45 is by the

publication of a notification setting out the conditions or modifications; and (b) the way in which such a condition is to be revoked is by the publication of a

notification stating that the condition is revoked.

[F80(2) Where section 48A applies, OFCOM must comply with the applicable requirements of that section and section 48B before—

(a) setting conditions under section 45; or (b) modifying or revoking a condition so set.

(2A) Where section 48A does not apply to the setting, modification or revocation of conditions because of subsection (2) of that section—

(a) the conditions, or their modification or revocation, must be temporary; and (b) the notification published under subsection (1) of this section must state the

period for which the conditions, or their modification or revocation, are to have effect.

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(2B) Where OFCOM propose to extend or make permanent any such temporary conditions, modification or revocation—

(a) sections 48A and 48B(1) do not apply in relation to the proposal; and (b) subsections (2) to (9) of section 48B apply in relation to the proposal as if the

words from the beginning of subsection (2) to “appropriate” were omitted.]

(4) In the case of a [F81proposal by OFCOM] with respect to an SMP condition, the applicable requirements of sections 79 to 86 must also be complied with.

F82(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) The publication of a notification under this section [F83or section 48A] must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification—

(a) in the case of a notification setting general conditions, to the attention of such persons as OFCOM consider appropriate; and

(b) in any other case, to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the contents of the notification.

(7) Nothing in the following provisions of this Chapter imposing a duty on OFCOM to set or modify a condition shall be taken as dispensing with any of the requirements of this section [F84, section 48A or section 48B] .

Textual Amendments F80 S. 48(2)-(2B) substituted for s. 48(2)(3) (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 22(a) (with Sch. 3 paras. 2, 6) F81 Words in s. 48(4) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 22(b) (with Sch. 3 paras. 2, 6) F82 S. 48(5) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 22(c) (with Sch. 3 paras. 2, 6) F83 Words in s. 48(6) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 22(d) (with Sch. 3 paras. 2, 6) F84 Words in s. 48(7) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 22(e) (with Sch. 3 paras. 2, 6)

Commencement Information I77 S. 48 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I78 S. 48 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F8548A. Domestic consultation for section 45 conditions

(1) This section applies where OFCOM propose to set, modify or revoke— (a) SMP apparatus conditions; or (b) any other conditions set under section 45 where what is proposed would,

in OFCOM’s opinion, have a significant impact on a market for any of the services, facilities, apparatus or directories in relation to which they have functions under this Chapter.

(2) But this section does not apply where the proposal is of EU significance and in OFCOM’s opinion—

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(a) there are exceptional circumstances; and (b) there is an urgent need to act in order to safeguard competition and to protect

the interests of consumers.

(3) OFCOM must publish a notification— (a) stating that they are proposing to set, modify or revoke the conditions that are

specified in the notification; (b) setting out the effect of those conditions, modifications or revocations; (c) giving their reasons for making the proposal; and (d) specifying the period within which representations may be made to OFCOM

about their proposal.

(4) That period must end no less than one month after the day of the publication of the notification.

(5) But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM consider reasonable in those circumstances.

(6) OFCOM must— (a) consider every representation about the proposal made to them during the

period specified in the notification; and (b) have regard to every international obligation of the United Kingdom (if any)

which has been notified to them for the purposes of this paragraph by the Secretary of State.

(7) Where the proposal is not of EU significance, OFCOM may then give effect to it, with any modifications that appear to OFCOM to be appropriate.

Textual Amendments F85 Ss. 48A-48C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 23 (with Sch. 3 paras. 2, 6)

48B. EU consultation for section 45 conditions

(1) This section applies where, after complying with section 48A(6) in relation to a proposal of EU significance, OFCOM wish to proceed with the proposal.

(2) After making any modifications of the proposal that appear to OFCOM to be appropriate, OFCOM must send a copy of the proposal, and of a statement setting out the reasons for it, to—

(a) the European Commission; (b) BEREC; and (c) the regulatory authorities in every other member State.

(3) If at the end of the period of one month referred to in Article 7(3) of the Framework Directive no notification has been given to OFCOM by the Commission under Article 7a(1) of that Directive, OFCOM may give effect to the proposal, with any modifications that appear to OFCOM to be appropriate.

(4) Before giving effect to the proposal under subsection (3), OFCOM must consider any comments made by—

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(a) the Commission; (b) BEREC; and (c) any regulatory authority in any other member State.

(5) Subsections (6) to (9) apply where such a notification is given by the Commission to OFCOM during that period.

(6) During the period of 3 months beginning with the notification, OFCOM must co- operate with the Commission and BEREC to identify the most appropriate and effective measure.

(7) OFCOM may give effect to the proposal, with any modifications that appear to them to be appropriate, within one month (or such longer period as may be allowed under paragraph (6) of Article 7a of the Framework Directive) of the Commission—

(a) issuing a recommendation to amend or withdraw the proposal in accordance with paragraph (5)(a) of that Article; or

(b) taking a decision to lift its reservations in accordance with paragraph (5)(b) of that Article.

(8) In a case in which OFCOM give effect to the proposal despite a recommendation of the Commission to amend or withdraw the proposal, OFCOM must send to the Commission a copy of a reasoned justification for their decision.

(9) If at the end of the period of one month referred to in paragraph (5) of Article 7a of the Framework Directive the Commission has neither issued a recommendation nor lifted its reservations in accordance with that paragraph, OFCOM may give effect to the proposal, with any modifications that appear to them to be appropriate.

Textual Amendments F85 Ss. 48A-48C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 23 (with Sch. 3 paras. 2, 6)

48C. Delivery of copies of notifications etc. in respect of section 45 conditions

(1) OFCOM must send to the Secretary of State a copy of every notification published under section 48(1) or 48A(3).

(2) OFCOM must send to the European Commission a copy of every notification published under section 48(1) with respect to—

(a) a universal service condition; (b) an access-related condition falling within section 73(2); (c) an SMP services condition.

(3) OFCOM must send to BEREC a copy of every notification published under section 48(1) with respect to a proposal of EU significance.

(4) Where a notification published under section 48(1) relates to a proposal to which section 48A did not apply because of subsection (2) of that section, OFCOM must send a copy of a statement setting out the reasons for the proposal and for the urgent need to act to—

(a) the Commission; (b) BEREC; and

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(c) the regulatory authorities in every other member State.]

Textual Amendments F85 Ss. 48A-48C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 23 (with Sch. 3 paras. 2, 6)

49 Directions and approvals for the purposes of a s. 45 condition

(1) This section applies where— (a) a condition set under section 45 has effect by reference to directions, approvals

or consents given by a person (whether OFCOM themselves or another); and (b) that person [F86(referred to in this section and sections 49A to 49C as “the

responsible person”)] is proposing to give a direction, approval or consent that affects the operation of that condition or to modify or withdraw a direction, approval or consent so as to affect the condition’s operation.

(2) [F87The responsible person] must not give, modify or withdraw the direction, approval or consent unless he is satisfied that to do so is—

(a) objectively justifiable in relation to the networks, services, facilities, apparatus or directories to which it relates [F88(but this paragraph is subject to subsection (2A))] ;

(b) not such as to discriminate unduly against particular persons or against a particular description of persons;

(c) proportionate to what it is intended to achieve; and (d) in relation to what it is intended to achieve, transparent.

[F89(2A) Subsection (2)(a) does not apply in relation to a direction, approval or consent affecting a general condition.]

(3) [F90Where the responsible person is a person other than OFCOM, that person shall in giving, modifying or withdrawing the direction] be under the same duty as OFCOM to act in accordance with the six Community requirements set out in section 4.

[F91(4) Where section 49A applies, the applicable requirements of that section and section 49B must be complied with before the direction, approval or consent is given, modified or withdrawn.

(4A) Where section 49A does not apply because of subsection (2) of that section— (a) the direction, approval or consent given, or its modification or withdrawal,

must be temporary; and (b) the instrument that gives, modifies or withdraws the direction, approval or

consent must state the period for which it is to have effect.

(4B) Where it is proposed to extend or make permanent any such temporary direction, approval or consent, or modification or withdrawal—

(a) sections 49A and 49B(1) do not apply in relation to the proposal; and (b) subsections (2) to (10) of section 49B apply in relation to the proposal as

if for the words from the beginning of subsection (2) to “the person” were substituted “The responsible person”.

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(4C) Where the responsible person is a person other than OFCOM, that person must refer to OFCOM such of the following questions as are relevant in the case in question—

(a) whether OFCOM is of the opinion mentioned in section 49A(1)(b); (b) whether OFCOM is of the opinion mentioned in section 49A(2); and (c) whether the proposal is of EU significance.

(4D) OFCOM must immediately determine any question so referred to them.]

Textual Amendments F86 Words in s. 49(1)(b) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(a) (with Sch. 3 paras. 2, 7) F87 Words in s. 49(2) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(b)(i) (with Sch. 3 paras. 2, 7) F88 Words in s. 49(2)(a) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(b)(ii) (with Sch. 3 paras. 2, 7) F89 S. 49(2A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(c) (with Sch. 3 paras. 2, 7) F90 Words in s. 49(3) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(d) (with Sch. 3 paras. 2, 7) F91 S. 49(4)-(4D) substituted for s. 49(4)-(10) (26.5.2011) by The Electronic Communications and

Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 24(e) (with Sch. 3 paras. 2, 7)

Commencement Information I79 S. 49 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I80 S. 49 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F9249A. Domestic consultation for directions, approvals and consents

(1) This section applies where the responsible person is proposing to give, modify or withdraw a direction, approval or consent for the purposes of—

(a) an SMP apparatus condition; or (b) any other condition set under section 45 where what is proposed would, in

OFCOM’s opinion, have a significant impact on a market for any of the services, facilities, apparatus or directories in relation to which they have functions under this Chapter.

(2) But this section does not apply where the proposal is of EU significance and in OFCOM’s opinion—

(a) there are exceptional circumstances; and (b) there is an urgent need to act in order to safeguard competition and to protect

the interests of consumers.

(3) The responsible person must publish a notification— (a) stating that there is a proposal to give, modify or withdraw the direction,

approval or consent; (b) identifying the responsible person; (c) setting out the direction, approval or consent to which the proposal relates;

Communications Act 2003 (c. 21) Part 2 – Networks, services and the radio spectrum Chapter 1 – Electronic communications networks and services Document Generated: 2021-03-19

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(d) setting out the effect of the direction, approval or consent or of its proposed modification or withdrawal;

(e) giving reasons for the making of the proposal; and (f) specifying the period within which representations may be made about the

proposal to the responsible person.

(4) That period must be one ending not less than one month after the day of the publication of the notification.

(5) But where the responsible person is satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period that person considers reasonable in those circumstances.

(6) The responsible person must— (a) consider every representation about the proposal made to that person during

the period specified in the notification; and (b) have regard to every international obligation of the United Kingdom (if any)

which has been notified to OFCOM for the purposes of this paragraph by the Secretary of State.

(7) Where the proposal is not of EU significance, the responsible person may then give effect to the proposal, with any modifications that appear to that person to be appropriate.

(8) The publication of a notification under this section must be in such manner as appears to the responsible person to be appropriate for bringing the contents of the notification to the attention of such persons as that person considers appropriate.

Textual Amendments F92 Ss. 49A-49C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 25 (with Sch. 3 paras. 2, 7)

49B. EU consultation for directions, approvals and consents

(1) This section applies where, after complying with section 49A(6) in relation to a proposal of EU significance, the responsible person wishes to proceed with it.

(2) After the responsible person has made any modifications of the proposal that appear to the person to be appropriate, the person must send a copy of the proposal, and of a statement setting out the reasons for it, to—

(a) the European Commission; (b) BEREC; and (c) the regulatory authorities in every other member State.

(3) If at the end of the period of one month referred to in Article 7(3) of the Framework Directive no notification has been given to the responsible person by the Commission under Article 7a(1) of that Directive, the responsible person may give effect to the proposal, with any amendments that appear to the responsible person to be appropriate.

(4) Before giving effect to the proposal under subsection (3), the responsible person must consider any comments made by—

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team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

(a) the Commission; (b) BEREC; and (c) any regulatory authority in any other member State.

(5) Subsections (6) to (10) apply where such a notification is given by the Commission to the responsible person during that period.

(6) During the period of 3 months beginning with the notification, the responsible person must co-operate with the Commission and BEREC to identify the most appropriate and effective measure.

(7) The responsible person may give effect to the proposal, with any modifications that appear to that person to be appropriate, within one month (or such longer period as may be allowed under paragraph (6) of Article 7a of the Framework Directive) of the Commission—

(a) issuing a recommendation to amend or withdraw the proposal in accordance with paragraph (5)(a) of that Article; or

(b) taking a decision to lift its reservations in accordance with paragraph (5)(b) of that Article.

(8) In a case in which the responsible person is a person other than OFCOM and the Commission has recommended that the proposal be amended or withdrawn, the responsible person may give effect to the proposal only with the agreement of OFCOM.

(9) In a case in which the responsible person gives effect to the proposal despite a recommendation of the Commission to amend or withdraw it, the responsible person must send to the Commission a copy of the responsible person’s reasoned justification for the decision.

(10) If at the end of the period of one month referred to in paragraph (5) of Article 7a of the Framework Directive the Commission has neither issued a recommendation nor lifted its reservations in accordance with that paragraph, the responsible person may give effect to the proposal, with any modifications that appear to that person to be appropriate.

Textual Amendments F92 Ss. 49A-49C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 25 (with Sch. 3 paras. 2, 7)

49C. Delivery of copies of notifications etc. in respect of directions, approvals and consents

(1) The responsible person must send to the Secretary of State— (a) a copy of every notification published under section 49A(3); (b) a copy of every direction, approval or consent given for the purposes of a

condition set under section 45; and (c) a copy of every instrument modifying or withdrawing such a direction,

approval or consent.

(2) The responsible person must send to the European Commission—

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(a) a copy of every direction, approval or consent given for the purposes of a universal service condition, an access-related condition falling within section 73(2) or an SMP services condition; and

(b) a copy of every instrument modifying or withdrawing such a direction, approval or consent.

(3) The responsible person must send to BEREC— (a) a copy of every direction, approval or consent given for the purposes of

a condition set under section 45 where the proposal to give the direction, approval or consent was a proposal of EU significance;

(b) a copy of every instrument modifying or withdrawing a direction, approval or consent given for the purposes of a condition set under section 45 where the proposal to modify or withdraw the direction, approval or consent was a proposal of EU significance.

(4) In a case in which the responsible person is a person other than OFCOM, the responsible person must send to OFCOM—

(a) a copy of every notification published under section 49A(3); (b) a copy of every direction, approval or consent given for the purposes of a

condition set under section 45; (c) a copy of every instrument modifying or withdrawing such a direction,

approval or consent; (d) a copy of every proposal and statement to which section 49B(2) applies; (e) a copy of any comments about such a proposal made by the Commission,

BEREC or any regulatory authority in any other member State; (f) a copy of every notification given to the responsible person by the

Commission under Article 7a(1) of the Framework Directive; (g) a copy of every recommendation made in respect of the proposal by the

Commission under Article 7a(5)(a) of the Framework Directive.

(5) Where because of subsection (2) of section 49A, that section did not apply in relation to a proposal to give a direction, approval or consent for the purposes of a condition, or to modify or withdraw such a direction, approval or consent, the responsible person must send a copy of a statement setting out the reasons for the proposal and for the urgent need to act to—

(a) the Commission; (b) BEREC; and (c) the regulatory authorities in every other member State.

(6) In a case in which the responsible person is a person other than OFCOM, references to OFCOM in section 395(4), (5) and (6A) are to be read as references to the responsible person in relation to copies of directions, approvals, consents, instruments and statements to which subsections (2), (3) and (5) of this section apply.]

Textual Amendments F92 Ss. 49A-49C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 25 (with Sch. 3 paras. 2, 7)

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F9350 Delivery of copies of notifications etc.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F93 S. 50 omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 26 (with Sch. 3 paras. 2, 8)

Commencement Information I81 S. 50 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I82 S. 50 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

General conditions: subject-matter

51 Matters to which general conditions may relate

(1) Subject to sections 52 to 64, the only conditions that may be set under section 45 as general conditions are conditions falling within one or more of the following paragraphs—

(a) conditions making such provision as OFCOM consider appropriate for protecting the interests of the end-users of public electronic communications services;

(b) conditions making such provision as OFCOM consider appropriate for securing service interoperability and for securing, or otherwise relating to, network access;

(c) conditions making such provision as OFCOM consider appropriate for securing the proper and effective functioning of public electronic communications networks;

(d) conditions for giving effect to determinations or regulations made under section 71;

(e) conditions requiring F94... the provision, availability and use, in the event of a disaster, of electronic communications networks, electronic communications services and associated facilities;

(f) conditions making such provision as OFCOM consider appropriate for securing the protection of public health by the prevention or avoidance of the exposure of individuals to electro-magnetic fields created in connection with the operation of electronic communications networks;

(g) conditions requiring compliance with relevant international standards.

(2) The power under subsection (1)(a) to set conditions for protecting the interests of the end-users of public electronic communications services includes power to set conditions for that purpose which—

(a) relate to the supply, provision or making available of goods, services or facilities in association with the provision of public electronic communications services; F95...

(b) give effect to [F3EU] obligations to provide protection for such end-users in relation to the supply, provision or making available of those goods, services or facilities.

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[F96(c) specify requirements in relation to the provision of services to disabled end- users;

(d) require the provision, free of charge, of specified information, or information of a specified kind, to end-users;

[ F97(da)

require a communications provider to pay compensation to an end-user on failing to meet a specified standard or obligation;]

(e) in order to prevent the degradation of service and the hindering or slowing down of traffic over networks, impose minimum requirements in relation to the quality of public electronic communications networks;

(f) require a communications provider, in specified circumstances, to block access to telephone numbers or services in order to prevent fraud or misuse, and enable them to withhold fees payable to another communications provider in those circumstances;

(g) impose a limit on the duration of a contract between an end-user and a communications provider; F98...

(h) ensure that conditions and procedures for the termination of a contract do not act as a disincentive to an end-user changing communications provider.]

[F99(i) specify requirements in relation to arrangements that enable an end-user to change communications provider on request.]

[F100(2A) Where OFCOM propose to set a general condition of a kind specified in subsection (2) (e), they must—

(a) notify the European Commission and BEREC, and (b) take due account of comments and recommendations made by the

Commission.]

(3) The power to set general conditions in relation to a description of electronic communications network or electronic communications service does not include power—

(a) to set conditions that are made applicable according to the identity of the provider of a network or service; or

(b) to set conditions that differ according to the identity of the provider of the networks or services to which they relate.

(4) The power to set general conditions falling within subsection (1)(b) does not include power to set conditions containing provision which under—

(a) section 73, or (b) any of sections 87 to [F10191] ,

must be or may be included, in a case in which it appears to OFCOM to be appropriate to do so, in an access-related condition or SMP condition.

(5) The conditions falling within subsection (1)(c) include conditions making such provision as OFCOM consider appropriate for the purpose, in accordance with [F3EU] obligations, of preventing or restricting electro-magnetic interference—

(a) with the provision of an electronic communications network or electronic communications service; or

(b) with, or with the receipt of, anything conveyed or provided by means of such a network or service.

(6) In this section “electro-magnetic interference” means interference by means of the emission or reflection of electro-magnetic energy in the course of, or in

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connection with, the provision any electronic communications network or electronic communications service.

(7) In this section “disaster” includes any major incident having a significant effect on the general public; and for this purpose a major incident includes any incident of contamination involving radioactive substances or other toxic materials.

Textual Amendments F3 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5)) F94 Words in s. 51(1)(e) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 27(a) (with Sch. 3 para. 2) F95 Word in s. 51(2)(a) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 27(b)(i) (with Sch. 3 para. 2) F96 S. 51(2)(c)-(h) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 27(b)(ii) (with Sch. 3 para. 2) F97 S. 51(2)(da) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 3, 118(2) F98 Word in s. 51(2) omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 2(2), 118(2) F99 S. 51(2)(i) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 2(3), 118(2) F100 S. 51(2A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 27(c) (with Sch. 3 para. 2) F101 Word in s. 51(4)(b) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 27(d) (with Sch. 3 para. 2)

Commencement Information I83 S. 51 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I84 S. 51 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

General conditions: customer interests

52 Conditions relating to customer interests

(1) It shall be the duty of OFCOM to set such general conditions (if any) as they consider appropriate for securing that—

(a) public communications providers, or (b) such descriptions of them as OFCOM consider appropriate,

establish and maintain procedures, standards and policies with respect to the matters mentioned in subsection (2).

(2) Those matters are— (a) the handling of complaints made to public communications providers by any

of their domestic and small business customers [F102, where the complaint relates to contractual conditions, or to the performance of a contract for the supply of an electronic communications network or service] ;

(b) the resolution of disputes between such providers and any of their domestic and small business customers [F103, where the complaint relates to contractual conditions, or to the performance of a contract for the supply of an electronic communications network or service] ;

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(c) the provision of remedies and redress in respect of matters that form the subject-matter of such complaints or disputes;

[F104(ca) the payment of compensation to a person in respect of delay in porting a number to another public communications provider, or abuse of the process for porting a number;]

(d) the information about service standards and about the rights of domestic and small business customers that is to be made available to those customers by public communications providers;

(e) any other matter appearing to OFCOM to be necessary for securing effective protection for the domestic and small business customers of such providers.

(3) It shall be the duty of OFCOM, in setting conditions in accordance with subsection (1), to secure so far as they consider appropriate—

(a) that the procedures established and maintained for the handling of complaints and the resolution of disputes are easy to use, transparent [F105, non- discriminatory] and effective;

(b) that domestic and small business customers have the right to use those procedures free of charge; and

(c) that where public communications providers are in contravention of conditions set in accordance with the preceding provisions of this section, the providers follow such procedures as may be required by the general conditions.

(4) Subject to section 55, OFCOM’s duties under subsections (1) and (3) so far as relating to procedures for the handling of complaints are to be performed, to such extent as they consider appropriate, by the setting of general conditions requiring public communications providers to establish and maintain procedures that conform with a code of practice which is—

(a) applicable to the providers to whom the conditions apply; and (b) for the time being approved by OFCOM for the purposes of this subsection.

(5) Subject to section 55, OFCOM’s duties under subsections (1) and (3) so far as relating to procedures for resolving disputes are to be performed, to such extent as they consider appropriate, by the setting of general conditions requiring public communications providers—

(a) to establish and maintain procedures for resolving disputes; and (b) to secure that those procedures are, and continue to be, approved by OFCOM.

(6) In this section “domestic and small business customer”, in relation to a public communications provider, means a customer of that provider who is neither—

(a) himself a communications provider; nor (b) a person who is such a customer in respect of an undertaking carried on by him

for which more than ten individuals work (whether as employees or volunteers or otherwise).

Textual Amendments F102 Words in s. 52(2)(a) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 28(a) (with Sch. 3 para. 2) F103 Words in s. 52(2)(b) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 28(b) (with Sch. 3 para. 2)

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F104 S. 52(2)(ca) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 28(c) (with Sch. 3 para. 2)

F105 Words in s. 52(3)(a) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 28(d) (with Sch. 3 para. 2)

Commencement Information I85 S. 52 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I86 S. 52 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

53 Approval of codes of practice for the purposes of s. 52

(1) Where a code of practice is submitted to OFCOM for approval, they shall approve that code if and only if, in their opinion, it makes all such provision as they consider necessary in relation to the matters dealt with in the code for the protection of the domestic and small business customers of the public communications providers to whom the code applies.

(2) It shall be the duty of OFCOM to keep under review the codes of practice for the time being approved by them.

(3) OFCOM may at any time, by a notification given or published in such manner as they consider appropriate—

(a) approve modifications that have been made to an approved code; (b) withdraw their approval from a code; or (c) give notice that the withdrawal of their approval will take effect from such

time as may be specified in the notification unless such modifications of the code as are specified in the notification are made before that time.

(4) In considering— (a) whether to approve a code of practice, or (b) whether or in what manner to exercise their powers under subsections (2) and

(3) of this section, OFCOM must have regard to the matters mentioned in subsection (5).

(5) Those matters are— (a) the need to secure that customers are able readily to comprehend the

procedures that are provided for by an approved code of practice; (b) the need to secure that there is consistency between the different codes for the

time being approved by OFCOM; and (c) the need to secure that the number of different codes so approved is kept to

a minimum.

(6) In this section— “approval” means approval for the purposes of section 52(4) and “approve”

and “approved” are to be construed accordingly; and “domestic and small business customer” has the same meaning as in

section 52.

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Commencement Information I87 S. 53 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I88 S. 53 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

54 Approval of dispute procedures for the purposes of s. 52

(1) Before giving their approval to any dispute procedures, OFCOM must consult the Secretary of State.

(2) OFCOM are not to approve dispute procedures unless they are satisfied that the arrangements under which the procedures have effect—

(a) are administered by person who is for practical purposes independent (so far as decisions in relation to disputes are concerned) of both OFCOM and the communications providers to whom the arrangements apply;

(b) give effect to procedures that are easy to use, transparent [F106, non- discriminatory] and effective;

(c) give, in the case of every communications provider to whom the arrangements apply, a right to each of his domestic and small business customers to use the procedures free of charge;

(d) ensure that all information necessary for giving effect to the procedures is obtained;

(e) ensure that disputes are effectively investigated; (f) include provision conferring power to make awards of appropriate

compensation; and (g) are such as to enable awards of compensation to be properly enforced.

(3) OFCOM may approve dispute procedures subject to such conditions (including conditions as to the provision of information to OFCOM) as they may think fit.

(4) It shall be the duty of OFCOM to keep under review the dispute procedures for the time being approved by them.

(5) OFCOM may at any time, by a notification given or published in such manner as they consider appropriate—

(a) modify the conditions of their approval of any dispute procedures or withdraw such an approval; or

(b) give notice that the modification of those conditions, or the withdrawal of such an approval, will take effect from such time as may be specified in the notification unless the procedures (or the arrangements under which they have effect) are modified before that time in the manner required by the notification.

(6) In considering— (a) whether to approve dispute procedures, or (b) whether or in what manner to exercise their powers under subsections (3) to

(5), OFCOM must have regard to the matters mentioned in subsection (7).

(7) Those matters are—

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(a) the need to secure that customers are able readily to comprehend dispute procedures;

(b) the need to secure that there is consistency between the different procedures for the time being approved by OFCOM; and

(c) the need to secure that the number of different sets of procedures so approved is kept to a minimum.

(8) In this section— “approval” means approval for the purposes of subsection (5) of section 52

and “approve” and “approved” are to be construed accordingly; “dispute procedures” means any such procedures as may fall to be approved

for the purposes of that subsection; and “domestic and small business customer” has the same meaning as in

section 52.

Textual Amendments F106 Words in s. 54(2)(b) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 29 (with Sch. 3 para. 2)

Commencement Information I89 S. 54 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I90 S. 54 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

55 Orders by OFCOM in the absence of conditions under s. 52

(1) OFCOM may make an order under this section if, at any time, they consider in relation to any one or more public communications providers—

(a) that it is not practicable, or at least not appropriate, for OFCOM’s duties under subsections (1) and (3) of section 52 to be performed in a particular respect by the setting of general conditions; and

(b) that it is necessary to make the order for the purpose— (i) of securing the necessary protection for the customers of that provider

or of those providers; or (ii) of securing compliance with a [F3EU] obligation.

(2) An order under this section may make such of the following provisions as OFCOM think fit—

(a) provision imposing requirements with respect to the complaints and disputes mentioned in section 52(2);

(b) provision for the enforcement of those requirements; (c) provision making other arrangements for the purposes of those requirements.

(3) The power to make provision by an order under this section includes, in particular— (a) power to establish a body corporate with the capacity to make its own rules

and to establish its own procedures; (b) power to determine the jurisdiction of a body established by such an order or,

for the purposes of the order, of any other person;

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(c) power to confer jurisdiction with respect to any matter on OFCOM themselves;

(d) power to provide for a person on whom jurisdiction is conferred by the arrangements to make awards of compensation, to direct the reimbursement of costs or expenses, or to do both;

(e) power to provide for such a person to enforce, or to participate in the enforcement of, any awards or directions made under such an order; and

(f) power to make such other provision as OFCOM think fit for the enforcement of such awards and directions.

(4) An order under this section may require such public communications providers as may be determined by or under the order to make payments to OFCOM in respect of expenditure incurred by OFCOM in connection with—

(a) the establishment and maintenance, in accordance with such an order, of a body corporate or of a procedure; or

(b) the making of any other arrangements for the purposes of the requirements of such an order.

(5) The consent of the Secretary of State is required for the making by OFCOM of an order under this section.

(6) Section 403 applies to the power of OFCOM to make an order under this section.

(7) A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Textual Amendments F3 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5))

Commencement Information I91 S. 55 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I92 S. 55 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

General conditions: telephone numbers

56 The National Telephone Numbering Plan

(1) It shall be the duty of OFCOM to publish a document (to be known as “the National Telephone Numbering Plan”) setting out—

(a) the numbers that they have determined to be available for allocation by them as telephone numbers;

(b) such restrictions as they consider appropriate on the adoption of numbers available for allocation in accordance with the plan; F107...

[F108(ba) such requirements as they consider appropriate, for the purpose of protecting consumers, in relation to the tariff principles and maximum prices applicable to numbers so adopted or available for allocation; and]

(c) such restrictions as they consider appropriate on the other uses to which numbers available for allocation in accordance with the plan may be put.

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(2) It shall be OFCOM’s duty— (a) from time to time to review the National Telephone Numbering Plan; and (b) to make any revision of that plan that they think fit in consequence of such

a review; but this duty must be performed in compliance with the requirements, so far as applicable, of section 60.

(3) OFCOM must also keep such day to day records as they consider appropriate of the telephone numbers allocated by them in accordance with the National Telephone Numbering Plan.

(4) The publication of the National Telephone Numbering Plan, or of a revision of it, must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the Plan, or of the revised Plan, to the attention of such persons as OFCOM consider appropriate.

(5) In this Chapter references to a telephone number are (subject to subsection (7)) references to any number that is used (whether or not in connection with telephony) for any one or more of the following purposes—

(a) identifying the destination for, or recipient of, an electronic communication; (b) identifying the origin, or sender, of an electronic communication; (c) identifying the route for an electronic communication; (d) identifying the source from which an electronic communication or electronic

communications service may be obtained or accessed; (e) selecting the service that is to be obtained or accessed, or required elements

or characteristics of that service; or (f) identifying the communications provider by means of whose network or

service an electronic communication is to be transmitted, or treated as transmitted.

(6) In this Chapter references to the adoption of a telephone number by a communications provider are references to his doing any of the following in relation to a number allocated (whether or not to that provider) by OFCOM—

(a) allocating or transferring that number to a particular customer or piece of apparatus;

(b) using that number for identifying a service or route used by that provider or by any of his customers;

(c) using that number for identifying a communication as one to be transmitted by that provider;

(d) designating that number for use in selecting a service or the required elements or characteristics of a service;

(e) authorising the use of that number by others for any of the purposes mentioned in subsection (5).

(7) The Secretary of State may by order exclude such numbers as may be described in the order from the numbers that are to be treated as telephone numbers for the purposes of this Chapter.

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

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(9) References in this section to the allocation of a number are references to its allocation for the purposes of general conditions under section 58 or in accordance with conditions under section 59.

(10) In this section— “electronic communication” means a communication for transmission by

means of an electronic communications network; and “number” includes data of any description.

Textual Amendments F107 Word in s. 56(1)(b) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 30 (with Sch. 3 para. 2) F108 S. 56(1)(ba) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 30 (with Sch. 3 para. 2)

Commencement Information I93 S. 56 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as

amended by S.I. 2003/3142, art. 1(3)) I94 S. 56 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with

art. 11)

[F10956A.Conditions for limitations on allocation of telephone numbers

(1) When OFCOM allocate telephone numbers in accordance with the National Telephone Numbering Plan, they must specify whether an allocation may be transferred from one person to another, and may set out the conditions under which the allocation may be transferred.

(2) If OFCOM allocate telephone numbers for a limited period of time, the limitation must be objectively justifiable in relation to the services to which it relates, taking account of the need to allow for an appropriate period of investment amortisation.]

Textual Amendments F109 S. 56A inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 31 (with Sch. 3 para. 2)

57 Conditions to secure access to telephone numbers

(1) General conditions may impose such requirements as OFCOM consider appropriate for securing that every end-user of a public electronic communications service is able, by means of that service—

(a) to make calls or otherwise transmit electronic communications to every normal telephone number; and

(b) to receive every call or other electronic communication that is made or transmitted to him using such a service from apparatus identified by a normal telephone number.

(2) A normal telephone number is one which—

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(a) has been made available, in accordance with the National Telephone Numbering Plan, as a number to be used for the purpose of identifying the destination for, or the recipient of, electronic communications; and

(b) is for the time being— (i) a number adopted by a communications provider to be used for such

a purpose; or (ii) a number in use for such a purpose by a person other than

a communications provider to whom it has been allocated in accordance with conditions under section 59.

(3) In this section “electronic communication” has the same meaning as in section 56.

Commencement Information I95 S. 57 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as

amended by S.I. 2003/3142, art. 1(3)) I96 S. 57 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with

art. 11)

58 Conditions about allocation and adoption of numbers

(1) General conditions may include conditions which— (a) prohibit the adoption of telephone numbers by a communications provider

except in cases where the numbers have been allocated by OFCOM to a person;

[F110(aa) impose tariff principles and maximum prices for the purpose of protecting consumers in relation to the provision of an electronic communications service by means of telephone numbers adopted or available for use;]

(b) regulate the use by a communications provider, for the purpose of providing an electronic communications network or electronic communications service, of telephone numbers not allocated to that provider;

(c) impose restrictions on the adoption of telephone numbers by a communications provider, and on other practices by communications providers in relation to telephone numbers allocated to them;

(d) impose requirements on a communications provider in connection with the adoption by him of telephone numbers;

(e) require an allocation of particular telephone numbers to be transferred from one communications provider to another in the circumstances provided for in the conditions;

(f) impose such requirements and restrictions on a communications provider from whom an allocation is required to be transferred as may be provided for, in relation to the transfer, in the conditions;

(g) require payments of such amounts as may be determined by OFCOM to be made to them by a person in respect of the allocation to him of telephone numbers;

(h) require payments of such amounts as may be determined by OFCOM to be made to them by a person in respect of transfers of allocations from one person to another; and

(i) require communications providers to secure compliance with such rules relating to the use of telephone numbers by their customers as OFCOM may

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set out in general conditions or determine in accordance with provision made by the general conditions.

(2) General conditions may also— (a) provide for the procedure to be followed on the making of applications to

OFCOM for the allocation of telephone numbers; (b) provide for the information that must accompany such applications and for

the handling of such applications; (c) provide a procedure for telephone numbers to be reserved pending the making

and disposal of an application for their allocation; (d) provide for the procedure to be followed on the making of applications for

telephone numbers to be reserved, and for the handling of such applications; (e) regulate the procedures to be followed, the system to be applied and the

charges to be imposed for the purposes of, or in connection with, the adoption by a communications provider of telephone numbers allocated to that provider;

(f) regulate the procedures to be followed, the system to be applied and the charges to be imposed for the purposes of, or in connection with, the transfer of an allocation from one person to another.

[F111(2A) General conditions may also require a communications provider to whom telephone numbers have been allocated—

(a) to provide OFCOM with any information that was not required to accompany the application for allocation of the numbers when it was made but which is now required to accompany such applications;

(b) to inform OFCOM of any changes to information that accompanied the application for allocation of the numbers or that has been provided in accordance with a condition set under paragraph (a);

(c) to inform OFCOM of any proposal by the provider to cease to provide an electronic communications network or electronic communications service;

(d) to inform OFCOM of any circumstances or events of a description specified in the condition.]

(3) The conditions that may be set under subsection (1)(d) include conditions imposing requirements with respect to the provision of information for purposes connected with—

(a) the compilation of directories; and (b) the provision of directory enquiry facilities.

(4) The procedure to be followed on the making of an application for the allocation of numbers that are available for allocation in accordance with the National Telephone Numbering Plan must require OFCOM’s determination of the application to be made—

(a) in the case of an application made in response to an invitation in accordance with subsection (5), before the end of six weeks after the day on which the application is received; and

(b) in any other case, before the end of three weeks after that day.

(5) Where OFCOM are proposing to allocate any telephone numbers, they may— (a) invite persons to indicate the payments each would be willing to make to

OFCOM if allocated the numbers; and (b) make the allocation according to the amounts indicated.

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(6) General conditions providing for payments to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—

(a) must set out the principles according to which the amounts of the payments are to be determined;

(b) may provide for the payments to consist of a lump sum in respect of a particular allocation or transfer or of sums payable periodically while an allocation remains in force, or of both;

(c) may provide for the amounts to be determined by reference to— (i) any indication according to which the allocation has been made as

mentioned in subsection (5); or (ii) any other factors (including the costs incurred by OFCOM in

connection with the carrying out of their functions by virtue of section 56 and this section) as OFCOM think fit.

(7) General conditions may— (a) make modifications from time to time of, or of the method of determining,

the amounts of periodic payments falling to be made by virtue of conditions containing provision authorised by this section; and

(b) make different provision in relation to different descriptions of communications provider and different descriptions of telephone number.

(8) Nothing in subsection (7) authorises the modification, after it has been fixed, of the amount of a periodic payment fixed in accordance with arrangements made in relation to numbers allocated as mentioned in subsection (5)(b).

(9) Payments that are required to be made to OFCOM in respect of anything mentioned in subsection (1)(g) or (h)—

(a) must be paid to them as soon as they become due in accordance with the conditions imposing the obligation to pay; and

(b) if not so paid, are to be recoverable by them accordingly.

Textual Amendments F110 S. 58(1)(aa) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 32 (with Sch. 3 para. 2) F111 S. 58(2A) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 84, 118(2)

Commencement Information I97 S. 58 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as

amended by S.I. 2003/3142, art. 1(3)) I98 S. 58 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with

art. 11)

59 Telephone numbering conditions binding non-providers

(1) OFCOM may set conditions under this section that apply to persons other than communications providers and relate to—

(a) the allocation of telephone numbers to such persons; (b) the transfer of allocations to and from such persons; and (c) the use of telephone numbers by such persons.

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(2) The conditions that may be set under this section include conditions imposing obligations corresponding to any of the obligations that may be imposed on communications providers by general conditions making provision for, or in connection with—

(a) the allocation of telephone numbers; (b) the transfer of allocations; or (c) the use of telephone numbers.

(3) Subsection (10) of section 45 applies to OFCOM’s power to set a condition under this section as it applies to their power to set a condition under that section.

(4) Sections 47 to 49 apply in relation to— (a) the setting of conditions under this section and the modification and

revocation of such conditions; and (b) the giving, modification or withdrawal of any direction, approval or consent

for the purposes of a condition under this section, as they apply in the case of general conditions and in the case of directions, approvals and consents given for the purposes of general conditions.

(5) It shall be the duty of a person who— (a) is not a communications provider, but (b) applies for the allocation of a telephone number, or is allocated such a number,

to comply with any conditions set under this section.

(6) That duty 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.

(7) Subsection (6) does not apply in the case of a person against whom the obligations contained in the condition in question are enforceable (by virtue of his having become a communications provider) as obligations imposed by general conditions.

Commencement Information I99 S. 59 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as

amended by S.I. 2003/3142, art. 1(3)) I100 S. 59 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with

art. 11)

60 Modification of documents referred to in numbering conditions

(1) This section applies where numbering conditions for the time being have effect by reference to provisions, as they have effect from time to time, of—

(a) the National Telephone Numbering Plan; or (b) another document published by OFCOM.

(2) OFCOM must not revise or otherwise modify the relevant provisions unless they are satisfied that the revision or modification is—

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(a) objectively justifiable in relation to the matters to which it relates; (b) not such as to discriminate unduly against particular persons or against a

particular description of persons; (c) proportionate to what the modification is intended to achieve; and (d) in relation to what it is intended to achieve, transparent.

(3) Before revising or otherwise modifying the relevant provisions, OFCOM must publish a notification—

(a) stating that they are proposing to do so; (b) specifying the Plan or other document that they are proposing to revise or

modify; (c) setting out the effect of their proposed revisions or modifications; (d) giving their reasons for making the proposal; and (e) specifying the period within which representations may be made to OFCOM

about their proposal.

(4) That period must be one ending not less than one month after the day of the publication of the notification.

(5) OFCOM may give effect, with or without modifications, to a proposal with respect to which they have published a notification under subsection (3) only if—

(a) they have considered every representation about the proposal that is made to them within the period specified in the notification; and

(b) they have had regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.

(6) The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of such persons as OFCOM consider appropriate.

(7) In this section— “numbering conditions” means—

(a) general conditions the making of which is authorised by section 57 or 58; (b) conditions set under section 59;

“the relevant provisions”, in relation to the Plan or document, means the provisions of the Plan or document by reference to which (as they have effect from time to time) the numbering conditions in question have effect.

Commencement Information I101 S. 60 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as

amended by S.I. 2003/3142, art. 1(3)) I102 S. 60 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with

art. 11)

61 Withdrawal of telephone number allocations

(1) Where OFCOM have allocated telephone numbers for the purposes of any numbering conditions, they may withdraw that allocation if, and only if, the case is one in which the withdrawal of an allocation is authorised by this section.

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(2) The withdrawal of an allocation is authorised (subject to section 62) if— (a) consent to the withdrawal is given by the person to whom the numbers are for

the time being allocated; (b) the withdrawal is made for the purposes of a transfer of the allocation required

by numbering conditions; (c) the withdrawal is made for the purposes of a numbering reorganisation

applicable to a particular series of telephone numbers; (d) the withdrawal is made in circumstances specified in the numbering

conditions and for the purpose of securing that what appears to OFCOM to be the best and most efficient use is made of the numbers and other data that are appropriate for use as telephone numbers;

(e) the allocated numbers are numbers that have not been adopted during such period after their allocation as may be specified in the numbering conditions; or

(f) the allocated numbers are comprised in a series of numbers which have not to a significant extent been adopted or used during such period as may be so specified.

(3) The withdrawal of an allocation is also authorised where— (a) there have been [F112serious or repeated] contraventions, by the person to

whom the allocation is for the time being allocated, of the numbering conditions; and

(b) it appears to OFCOM that the taking of other steps in respect of the contraventions is likely to prove ineffective for securing future compliance.

(4) The withdrawal of an allocation is also authorised where— (a) the person to whom the allocation is for the time being allocated is not a

communications provider; and (b) it appears to OFCOM that contraventions by that person of numbering

conditions makes the withdrawal of the allocation appropriate.

(5) OFCOM’s power to set conditions specifying circumstances for the purposes of subsection (2)(d), and their power to withdraw an allocation in the specified circumstances, are each exercisable only in a manner that does not discriminate unduly—

(a) against particular communications providers; (b) against particular users of the allocated numbers; or (c) against a particular description of such providers or users;

and the purposes for which those powers may be exercised do not include the carrying out of a numbering reorganisation of the sort mentioned in subsection (2)(c).

(6) Where OFCOM are proposing to withdraw an allocation in exercise of the power conferred by virtue of subsection (2)(e) or (f), they must—

(a) give a notification of their proposal; (b) consider any representations made to them about the proposal within the

period of one month following the day on which the notification is given; and (c) ensure that the withdrawal (if OFCOM decide to proceed with it after

considering those representations) does not take effect until the end of the three months beginning with the end of the period mentioned in paragraph (b).

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(7) A notification for the purposes of subsection (6) must be given in such manner as OFCOM consider appropriate for bringing it to the attention of—

(a) the person to whom the numbers to which the proposed withdrawal relates are for the time being allocated;

(b) every person appearing to OFCOM to be a person to whom communications are or may be transmitted using one of those numbers for identifying the destination or route;

(c) every person who uses one or more of those numbers for obtaining access to services or for communication; and

(d) every other person who, in OFCOM’s opinion, is likely to be affected by the proposal.

(8) For the purposes of this section there are repeated contraventions by a person of numbering conditions to the extent that—

[F113(a) in the case of a previous notification of a contravention given to that person under section 96A, OFCOM have given a confirmation decision to that person under section 96C(2) in respect of the contravention; and

(b) in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of numbering conditions;]

and for the purposes of this subsection it shall be immaterial whether the [F114confirmation decisions] related to the same contravention or to different contraventions of the same or different conditions.

(9) In this section “numbering conditions” means— (a) general conditions the making of which is authorised by section 58; or (b) conditions set under section 59.

Textual Amendments F112 Words in s. 61(3)(a) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 33(a) (with Sch. 3 paras. 2, 9) F113 S. 61(8)(a)(b) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 33(b)(i) (with Sch. 3 paras. 2, 9) F114 Words in s. 61(8) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 33(b)(ii) (with Sch. 3 paras. 2, 9, 10)

Commencement Information I103 S. 61 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as

amended by S.I. 2003/3142, art. 1(3)) I104 S. 61 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with

art. 11)

62 Numbering reorganisations

(1) This section applies to the withdrawal of an allocation for the purposes of a numbering reorganisation that is applicable to a particular series of telephone numbers.

(2) The allocation is to be withdrawn only if the reorganisation, so far as it relates to numbers of any description, is not such as to discriminate unduly—

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(a) against particular communications providers; (b) against particular users of the allocated numbers; or (c) against a particular description of such providers or users.

(3) The allocation must not be withdrawn if the reorganisation fails to provide for withdrawn allocations to be replaced by allocations of telephone numbers so nearly resembling the numbers to which the withdrawal relates as the purpose of the reorganisation allows.

(4) Where a replacement allocation is made for the purposes of the re-organisation— (a) no payment is to be made to OFCOM in respect of the making of the

replacement allocation; but (b) subsection (5) is to apply.

(5) Where this subsection applies— (a) a provision for the making of periodic payments in respect of the withdrawn

allocation is to be treated, to the extent that OFCOM determine that it should, as a provision requiring the making of periodic payments in respect of the replacement allocation; and

(b) OFCOM may, if they think fit, make such repayments or adjustments of a provision for payment as appear to them to be appropriate in consequence of differences between—

(i) the numbers to which the withdrawn allocation relates; and (ii) the numbers to which the replacement allocation relates.

Commencement Information I105 S. 62 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as

amended by S.I. 2003/3142, art. 1(3)) I106 S. 62 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with

art. 11)

63 General duty as to telephone numbering functions

(1) It shall be the duty of OFCOM, in the carrying out of their functions under sections 56 to 62—

(a) to secure that what appears to them to be the best use is made of the numbers that are appropriate for use as telephone numbers; and

(b) to encourage efficiency and innovation for that purpose.

(2) It shall also be the duty of OFCOM, in carrying out those functions, to secure that there is no undue discrimination by communications providers against other communications providers in relation to the adoption of telephone numbers for purposes connected with the use by one communications provider, or his customers, of an electronic communications network or electronic communications service provided by another.

(3) In this section “number” has the same meaning as in section 56.

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Commencement Information I107 S. 63 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 3) (as

amended by S.I. 2003/3142, art. 1(3)) I108 S. 63 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with

art. 11)

General conditions: must-carry obligations

64 Must-carry obligations

(1) General conditions may include conditions making any provision that OFCOM consider appropriate for securing that particular services are broadcast or otherwise transmitted by means of the electronic communications networks described in the conditions.

(2) A general condition containing provision authorised by this section is not (subject to subsection (4)) to require a service to be broadcast or otherwise transmitted by means of an electronic communications network unless—

(a) the service is included in the list of must-carry services; and (b) the effect of the requirement is confined to networks by means of which

public electronic communications services are provided that are used by a significant number of end-users as their principal means of receiving television programmes.

(3) That list is as follows— (a) any service of television programmes provided by the BBC so far as it is

provided in digital form and is a service in relation to which OFCOM have functions;

(b) the Channel 3 services so far as provided in digital form; (c) Channel 4 so far as provided in digital form; (d) Channel 5 so far as provided in digital form; (e) S4C Digital; (f) the digital public teletext service.

(4) General conditions making provision authorised by this section in relation to a listed service must, to such extent as OFCOM consider appropriate (and subject to subsection (5))—

(a) apply the requirement to broadcast or otherwise transmit that service to every service which is an ancillary service by reference to the listed service [F115(including, but not limited to, a service enabling access for disabled end- users)] ; and

(b) provide for the listed service to be treated for the purposes of the conditions as constituting such other services comprised in or provided with that service as may be determined by OFCOM.

(5) General conditions making provision authorised by this section must also comply with all such restrictions (if any) as may be imposed by order made by the Secretary of State as to the maximum and minimum amounts, or proportions, of available capacity that are to be required by such conditions to be used in the case of a network for the broadcasting or other transmission of particular services, or descriptions of service.

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(6) In making an order under subsection (5) the Secretary of State must have regard to— (a) the objective of securing that services included in the list of must-carry

services, and the other services to which conditions set in accordance with this section are likely to be applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable; and

(b) the need to secure that the amount of capacity available in the case of every network for making other services available is reasonable and, accordingly, that the burden of complying with conditions set in accordance with this section is proportionate to the public benefit to be secured by that objective.

(7) It shall be the duty of the Secretary of State from time to time to review— (a) the list of must-carry services; and (b) any requirements for the time being in force under this section with respect to

the terms on which services must be broadcast or otherwise transmitted.

(8) Where the Secretary of State carries out such a review, he must consult the following about the matters under review—

(a) OFCOM; and (b) such persons who, in his opinion, are likely to be affected by a modification

of the list of must-carry services, or who represent any of those persons, as he thinks fit.

(9) If, on such a review, he considers it appropriate to do so, the Secretary of State may by order modify the list of must-carry services.

(10) In determining whether it is appropriate for the purposes of subsection (9) to add a service to the list of must-carry services or to remove it, the Secretary of State must have regard, in particular, to—

(a) the public benefit to be secured by the addition of the service to the list, or by its retention in the list;

(b) the extent to which the service (if it were not included in the list) would nevertheless be made available to an acceptable technical standard by means of the networks to which conditions set in accordance with this section apply;

(c) the capacity left available, after the requirements of those conditions have been complied with, for the broadcasting or other transmission of material by means of each of those networks; and

(d) the need to secure that the burden of complying with conditions so set is proportionate to the objective of securing that the services in the list of must- carry services, and the other services to which conditions set in accordance with this section are likely to applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable.

(11) The Secretary of State may also, if (whether on such a review or in any other circumstances) he considers it appropriate to do so, by order make provision imposing requirements as to what, as between—

(a) the person providing a must-carry service, and (b) the person providing a network by means of which it is to be provided,

are to be the terms on which the service is to be broadcast or otherwise transmitted, in pursuance of general conditions set in accordance with this section, by means of that network.

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(12) An order under subsection (11) may provide for the terms to be determined by OFCOM in accordance with the provisions of the order.

(13) Before making an order under subsection (5), and before making an order under subsection (11) in a case in which there has been no review under subsection (7), the Secretary of State must consult—

(a) OFCOM, and (b) such persons who, in his opinion, are likely to be affected by the order, or who

represent any of those persons, as he thinks fit.

(14) Section 362 applies for construing this section as it applies for the purposes of Part 3.

Textual Amendments F115 Words in s. 64(4)(a) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 34 (with Sch. 3 para. 2)

Commencement Information I109 S. 64 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I110 S. 64 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Universal service conditions

65 Obligations to be secured by universal service conditions

(1) The Secretary of State must by order F116... set out the extent to which the things falling within subsection (2) must, for the purpose of securing compliance with [F3EU] obligations for the time being in force, be provided, made available or supplied throughout the United Kingdom.

(2) Those things are— (a) electronic communications networks and electronic communications

services; (b) facilities capable of being made available as part of or in connection with an

electronic communications service; (c) particular methods of billing for electronic communications services or of

accepting payment for them; (d) directories capable of being used in connection with the use of an electronic

communications network or electronic communications service; and (e) directory enquiry facilities capable of being used for purposes connected with

the use of such a network or service.

[F117(2A) The provision made under subsection (1) is referred to as “the universal service order”.

(2B) The universal service order may in particular say that broadband connections and services must be provided to any extent, but may not do so unless—

(a) it specifies the minimum download speed that must be provided by those connections and services, and

(b) the speed so specified is at least 10 megabits per second.

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(2C) The universal service order may contain— (a) guidance about matters relating to the speed or other characteristics of

broadband connections or services that it says must be provided (as well as or, except in the case of the minimum download speed, instead of setting out any of those characteristics); and

(b) guidance about any other matters relating to those connections or services.]

(3) The universal service order may contain guidance about matters relating to the pricing of things that the order says must be provided, made available or supplied.

(4) Before making or varying the universal service order, the Secretary of State must consult OFCOM and such other persons as he considers appropriate.

[F118(5) Before making or varying the universal service order, the Secretary of State must take due account of the desirability of not favouring—

(a) one form of electronic communications network, electronic communications service or associated facility, or

(b) one means of providing or making available such a network, service or facility, over another.]

Textual Amendments F3 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5)) F116 Words in s. 65(1) omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 1(3), 118(2) F117 S. 65(2A)-(2C) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(4), 118(2) F118 S. 65(5) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 35 (with Sch. 3 para. 2)

Modifications etc. (not altering text) C19 S. 65 excluded (11.12.2003) by The Privacy and Electronic Communications (EC Directive)

Regulations 2003 (S.I. 2003/2426), regs. 1, 35(2) (with regs. 4, 15(3), 28, 29)

Commencement Information I111 S. 65 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I112 S. 65 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

66 Designation of universal service providers

(1) OFCOM may by regulations make provision for the designation of the persons to whom universal service conditions are to be applicable.

(2) Subject to subsection (3), those regulations are not to authorise the designation of a person other than a communications provider.

(3) The regulations may provide for a person other than a communications provider to be designated for the purposes only of conditions relating to—

(a) the supply of directories capable of being used in connection with the use of an electronic communications network or electronic communications service; and

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(b) the making available of directory enquiry facilities capable of being used for purposes connected with the use of such a network or service.

(4) OFCOM may from time to time— (a) review the designations for the time being in force in accordance with

regulations under this section; and (b) on such a review, consider what (if any) universal service conditions should

continue to apply to each of the designated persons.

(5) The procedure to be followed in the case of every such review must be the procedure provided for in regulations made by OFCOM.

(6) Regulations made by OFCOM under this section must provide for a person’s designation as a person to whom universal service conditions are to be applicable to cease to have effect where, in any such case as may be described in the regulations, the universal service conditions applied to him are all revoked.

(7) Regulations made by OFCOM under this section providing a procedure for the designation of persons, or for the conduct of a review under subsection (4), must not provide for any procedure other than one appearing to OFCOM—

(a) to be efficient, objective and transparent; and (b) not to involve, or to tend to give rise to, any undue discrimination against any

person or description of persons.

(8) Where— (a) OFCOM designate a person in accordance with regulations under this section,

or (b) a designation of a person in accordance with any such regulations ceases to

have effect, they must give a notification of that designation, or of that fact, to the European Commission.

(9) A notification under this section must identify the person who has been designated, or the person whose designation has ceased to have effect.

[F119(9A) In making any regulations under this section, OFCOM must have regard to any guidance that is contained in the universal service order.]

(10) Section 403 applies to the power of OFCOM to make regulations under this section.

Textual Amendments F119 S. 66(9A) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(5), 118(2)

Commencement Information I113 S. 66 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I114 S. 66 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

67 Subject-matter of universal service conditions

(1) OFCOM may set any such universal service conditions as they consider appropriate for securing compliance with the obligations set out in the universal service order.

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[F120(1A) OFCOM may also set universal service conditions which apply to a designated universal service provider who proposes to make a disposal to another person of a substantial part or all of the designated universal service provider’s local access network assets.

(1B) But subsection (1A) does not apply where the disposal is made by a company to a connected company (within the meaning given by section 1122(2) of the Corporation Tax Act 2010).]

(2) Universal service conditions applied to a person must include a condition requiring him to publish information about his performance in complying with the universal service conditions that apply to him.

(3) A condition set in accordance with subsection (2) must contain provision which— (a) requires information published in accordance with it to be updated from time

to time and published again; (b) requires information so published to satisfy the requirements that OFCOM

consider appropriate for securing that it is adequate; and (c) requires information so published to be framed by reference to the quality of

service parameters, definitions and measurement methods for the time being set out in Annex III to the Universal Service Directive.

(4) A condition set in accordance with that subsection may impose requirements as to— (a) the times at which information published in accordance with it is to be

published; and (b) the manner in which that information is to be published.

(5) Universal service conditions may impose an obligation on a person to whom they apply to do one or both of the following, if required to do so by OFCOM—

(a) to make facilities available for enabling information published in pursuance of a condition applied to that person under subsection (2) to be independently audited;

(b) to meet the costs of any independent auditing of that information that is required by OFCOM.

(6) The reference in subsection (5) to the independent auditing of information is a reference to its being audited by a qualified auditor—

(a) for accuracy; and (b) for its usefulness in the making of comparisons with information published

by other designated universal service providers.

(7) Universal service conditions may impose performance targets on designated universal service providers with respect to any of the matters in relation to which obligations may be imposed by such conditions.

(8) In setting a universal service condition, OFCOM must have regard to any guidance F121... that is contained in the universal service order.

[F122(9) In this section “qualified auditor” means a person who— (a) is eligible for appointment as a statutory auditor under Part 42 of the

Companies Act 2006, and

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(b) if the appointment to carry out such auditing as is mentioned in subsection (5) were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement).]

Textual Amendments F120 S. 67(1A)(1B) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 36 (with Sch. 3 para. 2) F121 Words in s. 67(8) omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 1(6), 118(2) F122 S. 67(9) substituted (6.4.2008) by The Companies Act 2006 (Consequential Amendments etc) Order

2008 (S.I. 2008/948), art. 2(2), Sch. 1 para. 30(2) (with arts. 6, 11, 12)

Commencement Information I115 S. 67 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I116 S. 67 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

68 Tariffs etc. for universal services

(1) It shall be the duty of OFCOM— (a) to keep under review universal service tariffs; and (b) to monitor changes to those tariffs.

(2) Universal service conditions may require one or more of the following— (a) the use of a common tariff, or of common tariffs, in relation to anything

mentioned in section 65(2); (b) the use, in such cases as may be specified or described in the conditions, of

such special tariffs in relation to anything so mentioned as may be so specified or described;

(c) the fixing of tariffs used in accordance with the conditions by the use of such methods, and by reference to such methods of computing costs, as may be so specified or described.

(3) Universal service conditions must secure that the terms on which a person is provided with anything required by the universal service order do not require him—

(a) to pay for an unnecessary additional service; or (b) to pay, in respect of anything required by the order, any amount that is

attributable to the provision to him of such a service.

(4) The references in subsection (3), in relation to a person, to an unnecessary additional service are references to anything the provision of which—

(a) he has to accept by reason of his being provided, at his request, with something required by the order (“the requested service”); and

(b) is not necessary for the purpose of providing him with the requested service.

(5) It shall be the duty of OFCOM, in setting a universal service condition about universal service tariffs, to have regard to anything ascertained by them in the performance of their duty under subsection (1).

(6) References in this section to a universal service tariff are references to any of the tariffs used by designated universal service providers [F123or, where there is no designated

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universal service provider, by other persons,] in relation to the things for the time being required by the universal service order.

(7) References in this section to providing a person with anything include references to making it available or supplying it to him.

(8) In this section “tariff” includes a pricing structure.

Textual Amendments F123 Words in s. 68(6) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 37 (with Sch. 3 para. 2)

Commencement Information I117 S. 68 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I118 S. 68 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

69 Directories and directory enquiry facilities

(1) This section applies where universal service conditions require a designated universal service provider—

(a) to supply a directory capable of being used in connection with the use of an electronic communications network or electronic communications service; or

(b) to make available directory enquiry facilities capable of being used for purposes connected with use of such a network or service.

(2) The universal service conditions applied to the provider must include the conditions that OFCOM consider appropriate for securing that the provider does not unduly discriminate against a source of relevant information—

(a) in the compiling of the directory or the answering of directory enquiries; or (b) in the treatment in the directory, or for the purposes of the facilities, of any

relevant information from that source.

(3) In this section— (a) references to relevant information are references to information provided for

inclusion in the directory or for use in the answering of directory enquiries; and

(b) references to a source of relevant information are references to a communications provider or designated universal service provider who provides relevant information.

Commencement Information I119 S. 69 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I120 S. 69 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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70 Review of compliance costs

(1) OFCOM may from time to time review the extent (if any) of the financial burden for a particular designated universal service provider of complying in relation to any matter with any one or more of the universal service conditions applied to him.

(2) Where— (a) regulations under section 66 require the financial burden of so complying to

be taken into account in determining whom to designate, and (b) the regulations provide for a particular method of calculating that burden to

be used for the purposes of that determination, that must be the method of calculation applied on a review under this section.

(3) Where subsection (2) does not apply, the financial burden of so complying is to be taken to be the amount calculated by OFCOM to be the net cost of compliance after allowing for market benefits accruing to the designated universal service provider from—

(a) his designation; and (b) the application to him of universal service conditions.

(4) After carrying out a review under this section OFCOM must either— (a) cause the calculations made by them on the review to be audited by a

person who appears to them to be independent of designated universal service providers; or

(b) themselves carry out an audit of those calculations.

(5) OFCOM must ensure, in the case of every audit carried out under subsection (4), that a report on the audit—

(a) is prepared; and (b) if not prepared by OFCOM, is provided to them.

(6) It shall be the duty of OFCOM, in the case of every review under this section, to publish—

(a) their conclusions on the review; and (b) a summary of the report of the audit which was carried out as respects the

calculations made for the purposes of that review.

(7) The publication of anything under subsection (6) must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

Commencement Information I121 S. 70 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I122 S. 70 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

71 Sharing of burden of universal service obligations

(1) This section applies where OFCOM—

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(a) have concluded, on a review under section 70, that complying in relation to any matter with universal service conditions imposes a financial burden on a particular designated universal service provider; and

(b) have published that conclusion in accordance with that section.

(2) OFCOM must determine, in the case of the designated universal service provider, whether they consider it would be unfair for that provider to bear, or to continue to bear, the whole or any part of so much of the burden.

(3) If— (a) OFCOM determine that it would be unfair for the designated universal service

provider to bear, or to continue to bear, the whole or a part of the burden, and (b) an application for a determination under this subsection is made to OFCOM

by that provider, OFCOM may determine that contributions are to be made by communications providers to whom general conditions are applicable for meeting that burden.

(4) The making of any of the following must be in accordance with regulations made by OFCOM—

(a) a determination by OFCOM of the extent of the financial burden that exists for the designated universal service provider of complying in relation to any matter with universal service conditions;

(b) an application for the purposes of subsection (3)(b); (c) a determination by OFCOM of whether it is or would be unfair for the

designated universal service provider to bear, or to continue to bear, the burden of complying in relation to any matter with universal service conditions;

(d) a determination of the extent (if any) to which that is or would be unfair.

(5) The assessment, collection and distribution of contributions under subsection (3) is not to be carried out except in accordance with a mechanism provided for in a scheme contained in regulations made by OFCOM.

(6) It shall be the duty of OFCOM to exercise their power to make regulations under this section in the manner which they consider will secure that the assessment, collection and distribution of contributions under subsection (3) is carried out—

(a) in an objective and transparent manner; (b) in a manner that does not involve, or tend to give rise to, any undue

discrimination against particular communications providers or particular designated universal service providers, or against a particular description of them; and

(c) in a manner that avoids, or (if that is impracticable) at least minimises, any distortion of competition or of customer demand.

(7) Regulations made by OFCOM under this section may provide for a scheme containing the provision mentioned in subsection (5), and for any fund set up for the purposes of such a scheme, to be administered either—

(a) by OFCOM; or (b) by such other person as may be specified in the regulations.

(8) A person other than OFCOM is not to be specified in regulations under this section as the administrator of such a scheme or fund unless he is a person who OFCOM are satisfied is independent of both—

(a) the persons who are designated universal service providers; and

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(b) communications providers to whom general conditions are applicable.

(9) Section 403 applies to the powers of OFCOM to make regulations under this section.

Commencement Information I123 S. 71 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I124 S. 71 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

72 Report on sharing mechanism

(1) This section applies where regulations under section 71 provide for a scheme for the assessment, collection and distribution of contributions under subsection (3) of that section.

(2) OFCOM must prepare and publish a report setting out, in relation to the period to which it applies—

(a) every determination by OFCOM that has had effect in relation to a time in that period as a determination of the costs of providing anything contained in the universal service order;

(b) the market benefits for each designated universal service provider that have accrued to him during that period from his designation and from the application to him of universal service conditions; and

(c) the contribution made under section 71(3) by every person who has made a contribution during that period.

(3) The first report under this section must be prepared in relation to the period of twelve months beginning with the coming into force of the first regulations to be made under section 71.

(4) Every subsequent report must be prepared in relation to the period of twelve months beginning with the end of the period to which the previous report applied.

(5) Every report under this section— (a) must be prepared as soon as practicable after the end of the period to which

it is to apply; and (b) must be published as soon as practicable after its preparation is complete.

(6) OFCOM are not required under this section— (a) to publish any matter that is confidential in accordance with subsection (7)

or (8); or (b) to publish anything that it would not be reasonably practicable to publish

without disclosing such a matter.

(7) A matter is confidential under this subsection 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.

(8) A matter is confidential under this subsection if— (a) it relates to the private affairs of an individual; and

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(b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

(9) The publication of a report under this section must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are affected by the matters to which it relates.

Commencement Information I125 S. 72 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I126 S. 72 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F12472A Review of universal service order

(1) The Secretary of State may direct OFCOM to review and report to the Secretary of State on any provision made, or that may be made, by the universal service order in relation to broadband connections or services.

(2) The Secretary of State must consult OFCOM before giving a direction under this section.

(3) The Secretary of State must publish a direction under this section.

(4) OFCOM must publish the report made by them to the Secretary of State of a review under this section.

Textual Amendments F124 Ss. 72A, 72B inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(7), 118(2)

72B Broadband download speeds: duty to give direction under section 72A

(1) The Secretary of State must give OFCOM a direction under section 72A if— (a) the universal service order specifies a minimum download speed for

broadband connections and services and the speed so specified is less than 30 megabits per second, and

(b) it appears to the Secretary of State, on the basis of information published by OFCOM, that broadband connections or services that provide a minimum download speed of at least 30 megabits per second are subscribed to for use in at least 75% of premises in the United Kingdom.

(2) The direction— (a) must require OFCOM to review and report to the Secretary of State on whether

it would be appropriate for the universal service order to specify a higher minimum download speed, and

(b) may also require OFCOM to review and report to the Secretary of State on any other matter falling within section 72A(1).]

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Textual Amendments F124 Ss. 72A, 72B inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(7), 118(2)

Access-related conditions

73 Permitted subject-matter of access-related conditions

(1) The only conditions that may be set under section 45 as access-related conditions are those authorised by this section.

(2) Access-related conditions may include conditions relating to the provision of such network access and service interoperability as appears to OFCOM appropriate for the purpose of securing—

(a) efficiencyF125...; (b) sustainable competition F126...; F127...

[F128(ba) efficient investment and innovation; and] (c) the greatest possible benefit for the end-users of public electronic

communications services.

(3) Access-related conditions may include conditions appearing to OFCOM to be appropriate for securing that persons to whom the electronic communications code applies participateF129... in arrangements for—

(a) sharing the use of electronic communications apparatus; and (b) apportioning and making contributions towards costs incurred in relation to

shared electronic communications apparatus.

[F130(3A) The power to set access-related conditions falling within subsection (3) is to be exercised for the purpose of—

(a) encouraging efficient investment in infrastructure; and (b) promoting innovation.]

F131(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(5) Access-related conditions may include conditions containing any provision required by section 75(2).

Textual Amendments F125 Words in s. 73(2)(a) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 38(a)(i) (with Sch. 3 para. 2) F126 Words in s. 73(2)(b) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 38(a)(ii) (with Sch. 3 para. 2) F127 Word in s. 73(2)(b) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 38(a)(iii) (with Sch. 3 para. 2) F128 S. 73(2)(ba) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 38(a)(iii) (with Sch. 3 para. 2) F129 Words in s. 73(3) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 38(b) (with Sch. 3 para. 2) F130 S. 73(3A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 38(c) (with Sch. 3 para. 2)

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F131 S. 73(4) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 38(d) (with Sch. 3 para. 2)

Commencement Information I127 S. 73 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I128 S. 73 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

74 Specific types of access-related conditions

(1) The conditions that may be set by virtue of section 73(2) include conditions which, for the purpose of securing end-to-end connectivity for the end-users of public electronic communications services provided by means of a series of electronic communications networks—

(a) impose obligations on a person controlling network access to any of those networks; and

(b) require the interconnection of the networks.

[F132(1A) The conditions that may be set by virtue of section 73(2) also include conditions which impose such obligations on a person controlling network access to customers as OFCOM consider necessary for the purpose of securing service interoperability.]

(2) The conditions that may be set by virtue of section 73(2) also include such conditions imposing obligations on a person providing facilities for the use of application programme interfaces or electronic programme guides as OFCOM consider to be necessary for securing—

(a) that persons are able to have access to such programme services provided in digital form as OFCOM may determine; and

(b) that the facility for using those interfaces or guides is provided on terms which—

(i) are fair and reasonable; and (ii) do not involve, or tend to give rise to, any undue discrimination

against any person or description of persons.

(3) In this section— “application programme interface” means a facility for allowing software to

make use, in connection with any of the matters mentioned in subsection (4), of facilities contained in other software;

“electronic programme guide” means a facility by means of which a person has access to any service which consists of—

(a) the listing or promotion, or both the listing and the promotion, of some or all of the programmes included in any one or more programme services; and

(b) a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide;

“end-to-end connectivity” means the facility— (a) for different end-users of the same public electronic communications

service to be able to communicate with each other; and (b) for the end-users of different such services to be able, each using the

service of which he is the end-user, to communicate with each other.

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(4) The matters mentioned in subsection (3), in the definition of “application programme interface”, are—

(a) allowing a person to have access to programme services; (b) allowing a person, other than a communications provider or a person

who makes associated facilities available, to make use of an electronic communications network by means of which a programme service is broadcast or otherwise transmitted;

(c) allowing a person to become the end-user of a description of public electronic communications service.

(5) This section is not to be construed as restricting the provision that may be made under section 73(2).

Textual Amendments F132 S. 74(1A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 39 (with Sch. 3 para. 2)

Commencement Information I129 S. 74 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I130 S. 74 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

75 Conditional access systems and access to digital services F133(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(2) It shall be the duty of OFCOM to ensure— (a) that access-related conditions are applied to every person who provides a

conditional access system in relation to a protected programme service; and (b) that those conditions make all such provision as is required by the provision

contained from time to time in Part I of Annex I to the Access Directive (conditions relating to access to digital programme services).

(3) In this section— “conditional access system” means any system, facility, arrangements or

technical measure under or by means of which access to programme services requires—

(a) a subscription to the service or to a service that includes that service; or (b) an authorisation to view it, or to listen to it, on a particular occasion;

“protected programme service” means a programme service the programmes included in which cannot be viewed or listened to in an intelligible form except by the use of a conditional access system.

Textual Amendments F133 S. 75(1) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 40 (with Sch. 3 para. 2)

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Commencement Information I131 S. 75 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I132 S. 75 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

76 Modification and revocation of conditions imposed under s. 75

(1) This section applies in the case of conditions falling within section 75(2) which have been set by OFCOM in relation to a particular person (“the system provider”).

(2) OFCOM must not give effect to a proposal to modify or revoke any of the conditions unless—

(a) they have carried out an analysis for the purpose of determining in accordance with this Chapter whether that person is or remains a person on whom SMP services conditions are capable of being imposed;

(b) they have determined in consequence of that analysis that he is not; and (c) they are satisfied that the modification or revocation will not have an adverse

effect on any or all of the matters mentioned in subsection (3).

(3) Those matters are— (a) the accessibility to any persons of services that are for the time being included

in the list of must-carry services in section 64; (b) the prospects for effective competition in the market for programme services

provided by being broadcast or otherwise transmitted in digital form; and (c) the prospects for effective competition in the markets for conditional access

systems and other associated facilities.

(4) In this section “conditional access system” has the same meaning as in section 75.

Commencement Information I133 S. 76 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I134 S. 76 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F13476A.Information about electronic communications apparatus available for shared use

(1) OFCOM may make available to such persons as they consider appropriate information about electronic communications apparatus that in OFCOM’s opinion is suitable for shared use.

(2) OFCOM may impose such restrictions as they consider appropriate on the use and further disclosure of information made available under this section.]

Textual Amendments F134 S. 76A inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 41 (with Sch. 3 para. 2)

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Privileged supplier conditions

77 Imposition of privileged supplier conditions

(1) It shall be the duty of OFCOM to secure that privileged supplier conditions containing all such provision falling within subsection (3) as they consider appropriate are applied to every public communications provider to whom this section applies.

(2) This section applies to every public communications provider who— (a) enjoys special or exclusive rights in relation to the provision of any non-

communications services; and (b) is not such a provider in respect only of associated facilities.

(3) The provision that may be contained in a condition set under section 45 as a privileged supplier condition is any provision that OFCOM consider appropriate for any one or more of the following purposes—

(a) requiring the provider to whom it applies to keep separate accounts in relation to his public electronic communications network or public electronic communications service and other matters;

(b) requiring that provider to submit the accounts of the different parts of his undertaking, and any financial report relating to a part of that undertaking, to a qualified auditor for auditing;

(c) requiring the accounts of the different parts of his undertaking to be published; (d) securing, by means other than the keeping of separate accounts, the structural

separation of the different parts of his undertaking.

(4) OFCOM are not required under this section to apply a condition to a person where they are satisfied that that person has an annual turnover in relation to all his communications activities that is less than ?50 million.

(5) Where in a case falling within subsection (4) OFCOM are not required to apply a privileged supplier condition to a person, they may apply such a condition to him if they think fit.

(6) The reference in subsection (4) to a person’s communications activities is a reference to any activities of his that consist in, or are connected with, either or both of the following—

(a) the provision of any one or more electronic communications networks; (b) the provision of any one or more electronic communications services.

(7) The making, for the purposes of subsection (4), of— (a) a determination of the period in respect of which a person’s annual turnover

in relation to any activities is computed, and (b) a determination of the amount in Euros of that turnover for any period,

must be in accordance with such rules as OFCOM consider to be reasonable.

(8) OFCOM must publish any rules made by them for the purposes of subsection (7) in such manner as they consider appropriate for bringing them to the attention of the persons who, in their opinion, are likely to be affected by them.

(9) In this section— “non-communications services”, in relation to a person, means services other

than those consisting in, or connected with, the provision by him of—

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(a) an electronic communications network; or (b) an electronic communications service;

[F135“qualified auditor” means a person who— (a) is eligible for appointment as a statutory auditor under Part 42 of the

Companies Act 2006, and (b) if the appointment to carry out such auditing as is mentioned in

subsection (3)(b) were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement);]

“special or exclusive rights” has the same meaning as in [F136Article 106 of the Treaty on the Functioning of the European Union] .

Textual Amendments F135 Words in s. 77(9) substituted (6.4.2008) by The Companies Act 2006 (Consequential Amendments etc)

Order 2008 (S.I. 2008/948), art. 2(2), Sch. 1 para. 30(3) (with arts. 6, 11, 12) F136 Words in s. 77(9) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or

Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

Commencement Information I135 S. 77 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I136 S. 77 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

SMP conditions: procedure

78 Circumstances required for the setting of SMP conditions

(1) For the purposes of this Chapter a person shall be taken to have significant market power in relation to a market if he enjoys a position which amounts to or is equivalent to dominance of the market.

(2) References in this section to dominance of a market must be construed in accordance with any applicable provisions of Article 14 of the Framework Directive.

(3) A person is to be taken to enjoy a position of dominance of a market if he is one of a number of persons who enjoy such a position in combination with each other.

(4) A person or combination of persons may also be taken to enjoy a position of dominance of a market by reason wholly or partly of his or their position in a closely related market if the links between the two markets allow the market power held in the closely related market to be used in a way that influences the other market so as to strengthen the position in the other market of that person or combination of persons.

(5) The matters that must be taken into account in determining whether a combination of persons enjoys a position of dominance of a services market include, in particular, the matters set out in Annex II to the Framework Directive.

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Commencement Information I137 S. 78 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I138 S. 78 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

79 Market power determinations

(1) Before making a market power determination, OFCOM must— (a) identify (by reference, in particular, to area and locality) the markets which in

their opinion are the ones which in the circumstances of the United Kingdom are the markets in relation to which it is appropriate to consider whether to make the determination; and

(b) carry out an analysis of the identified markets.

(2) In identifying or analysing any services market for the purposes of this Chapter, OFCOM must take due account of all applicable guidelines and recommendations which—

(a) have been issued or made by the European Commission in pursuance of the provisions of a [F3EU] instrument; and

(b) relate to market identification and analysis.

(3) In considering whether to make or revise a market power determination in relation to a services market, OFCOM must take due account of all applicable guidelines and recommendations which—

(a) have been issued or made by the European Commission in pursuance of the provisions of a [F3EU] instrument; and

(b) relate to market analysis or the determination of what constitutes significant market power.

(4) The way in which— (a) a market is to be identified for the purposes of this section, or (b) a market power determination is to be made,

is by the publication of a notification containing the identification or determination.

(5) Notifications for the purposes of subsection (4)— (a) may be given separately; (b) may be contained in a single notification relating to both the identification of a

market and the making of a market determination in relation to that market; or (c) may be contained in a single notification under section 48(1) with respect to

the setting or modification of an SMP condition and either— (i) the making of the market power determination by reference to which

OFCOM set or modify that condition; or (ii) the making of that market power determination and the identification

of the market in relation to which they make that determination.

(6) The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.

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(7) References in this section to guidelines and recommendations issued by the European Commission and to a [F3EU] instrument include references, respectively, to guidelines and recommendations issued after the commencement of this section and to a [F3EU] instrument made after the commencement of this section.

Textual Amendments F3 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5))

Commencement Information I139 S. 79 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I140 S. 79 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

80 Proposals for identifying markets and for market power determinations

[F137(1) Where section 80A applies, OFCOM must comply with the applicable requirements of that section and section 80B before—

(a) identifying a market for the purposes of making a market power determination, or

(b) making a market power determination.

(1A) Where section 80A does not apply because of subsection (2) of that section— (a) any identification of a market or market power determination must be

temporary; and (b) the notification published under section 79(4) containing the identification

or determination must state the period for which the identification or determination is to have effect.

(1B) Where OFCOM propose to extend or make permanent any such temporary identification or determination—

(a) sections 80A and 80B(1) do not apply in relation to the proposal; and (b) subsections (2) to (8) of section 80B apply in relation to the proposal as if the

words from the beginning of subsection (2) to “appropriate” were omitted.]

(7) The power of OFCOM to [F138identify a market or make a market power determination is subject to section 83] .

Textual Amendments F137 S. 80(1)(1A)(1B) substituted for s. 80(1)-(6) (26.5.2011) by The Electronic Communications and

Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 42(a) (with Sch. 3 paras. 2, 11)

F138 Words in s. 80(7) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 42(b) (with Sch. 3 paras. 2, 11)

Commencement Information I141 S. 80 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3))

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I142 S. 80 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F13980A.Domestic consultation for market identifications and market power determinations

(1) This section applies where— (a) OFCOM propose—

(i) to identify a market for the purposes of making a market power determination; or

(ii) to make a market power determination; and (b) (in the case of a services market) the proposed identification or determination

is in OFCOM’s opinion likely to result in the setting, modification or revocation of SMP services conditions that will have a significant impact on the market.

(2) But this section does not apply where the proposal is of EU significance and in OFCOM’s opinion—

(a) there are exceptional circumstances; and (b) there is an urgent need to act in order to safeguard competition and to protect

the interests of consumers.

(3) OFCOM must publish a notification of what they are proposing to do.

(4) Notifications for the purposes of subsection (3)— (a) may be given separately; (b) may be contained in a single notification relating to both the identification of

a market and the making of a market power determination in relation to that market; or

(c) may be contained in a single notification under section 48A(3) with respect to the setting or modification of an SMP condition and either—

(i) the making of the market power determination by reference to which OFCOM are proposing to set or modify that condition; or

(ii) the making of that market power determination and the identification of the market in relation to which they are proposing to make that determination.

(5) A notification under this section relating to a proposal to identify a market or to make a market power determination must—

(a) state that OFCOM are proposing to identify that market or to make that market power determination;

(b) set out the effect of the proposal; (c) give their reasons for making the proposal; and (d) specify the period within which representations may be made to OFCOM

about their proposal.

(6) That period must be a period of not less than one month after the day of the publication of the notification.

(7) But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM considers reasonable in those circumstances.

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(8) The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified.

(9) OFCOM must— (a) consider every representation about the proposal made to them during the

period specified in the notification; and (b) have regard to every international obligation of the United Kingdom (if any)

which has been notified to them for the purposes of this paragraph by the Secretary of State.

(10) Where the proposal is not of EU significance, OFCOM may then give effect to it, with any modifications that appear to OFCOM to be appropriate.

Textual Amendments F139 Ss. 80A, 80B inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 43 (with Sch. 3 paras. 2, 11)

80B. EU consultation for market identifications and market power determinations

(1) This section applies where, after complying with section 80A(9) in relation to a proposal of EU significance, OFCOM wish to proceed with the proposal.

(2) After making any modifications of the proposal that appear to OFCOM to be appropriate, OFCOM must send a copy of the proposal, and of a statement setting out the reasons for it, to—

(a) the European Commission; (b) BEREC; and (c) the regulatory authorities in every other member State.

(3) If at the end of the period of one month referred to in paragraph (3) of Article 7 of the Framework Directive no indication has been given to OFCOM by the Commission under paragraph (4) of that Article, OFCOM may give effect to the proposal, with any modifications that appear to them to be appropriate.

(4) Before giving effect to the proposal under subsection (3), OFCOM must consider any comments made by—

(a) the Commission; (b) BEREC; and (c) any regulatory authority in any other member State.

(5) Subsections (6) to (8) apply where such an indication is given by the Commission to OFCOM during that period.

(6) If under Article 7(5)(a) of the Framework Directive the Commission requires OFCOM to withdraw the proposal, OFCOM must amend or withdraw the proposal within 6 months of the date of the Commission’s decision.

(7) Where the proposal is amended under subsection (6), section 80 applies in relation to the amended proposal as if it were a new proposal.

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(8) OFCOM may give effect to the proposal, with any modifications that appear to them to be appropriate—

(a) if the Commission takes a decision to lift its reservations in accordance with paragraph (5)(b) of Article 7 of the Framework Directive; or

(b) if at the end of the period of 2 months referred to in paragraph (4) of that Article the Commission has neither required OFCOM to withdraw the proposal under paragraph (5)(a) nor lifted its reservations under paragraph (5) (b).]

Textual Amendments F139 Ss. 80A, 80B inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 43 (with Sch. 3 paras. 2, 11)

[F14081 Delivery of copies of notifications under sections 79 and 80A

(1) OFCOM must send to the Secretary of State a copy of every notification published under section 79(4) or 80A(3).

(2) OFCOM must send to the European Commission a copy of every notification published under section 79(4) in relation to a services market.

(3) OFCOM must send to BEREC a copy of every notification published under section 79(4) where the proposal to identify the market or make a market power determination was a proposal of EU significance.

(4) Where a notification published under section 79(4) relates to a proposal to which section 80A did not apply because of subsection (2) of that section, OFCOM must send a copy of a statement setting out the reasons for the proposal and for the urgent need to act to—

(a) the Commission; (b) BEREC; and (c) the regulatory authorities in every other member State.]

Textual Amendments F140 S. 81 substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 44 (with Sch. 3 paras. 2, 11)

Commencement Information I143 S. 81 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I144 S. 81 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F14182 European Commission’s powers in respect of proposals

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Textual Amendments F141 S. 82 omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 45 (with Sch. 3 paras. 2, 11)

Commencement Information I145 S. 82 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I146 S. 82 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

83 Special rules for transnational markets

(1) This section applies where a services market is for the time being identified by a decision of the European Commission under Article 15(4) of the Framework Directive as a transnational market.

(2) Where the market area includes the whole or a part of the United Kingdom, OFCOM must enter into and maintain arrangements with the other relevant regulatory authorities about—

(a) the extent to which the agreement of all the relevant regulatory authorities is required for the doing of any of the things mentioned in subsection (3); and

(b) the procedures to be followed for securing that agreement where it is required.

(3) Those things are— (a) the identification of the whole or a part of the market as a market in relation to

which it is appropriate to determine whether a person has significant market power;

(b) the making of such a determination in relation to the whole or a part of the market;

(c) the setting of a condition the setting of which requires such a determination to have been made;

(d) the modification or revocation of such a condition.

(4) OFCOM must not do any of the things mentioned in subsection (3) except in accordance with arrangements maintained under that subsection.

(5) Those arrangements may include arrangements requiring OFCOM, when doing any of those things, to comply with—

(a) a decision made, by one or more other regulatory authorities; or (b) a decision made by a person appointed under the arrangements to act on behalf

of some or all of the relevant regulatory authorities.

(6) In this section— “market area”, in relation to a services market identified by the European

Commission as a transnational market, means the area identified by that Commission as the area for which the market operates; and

“relevant regulatory authorities”, in relation to such a market, means the regulatory authorities for each member State the whole or a part of which is comprised in the market area.

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Commencement Information I147 S. 83 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I148 S. 83 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

84 Review of services market identifications and determinations

(1) This section applies where OFCOM have identified and analysed a services market for the purposes of making a market power determination.

(2) OFCOM [F142may (and, when required to do so by section 84A, must)] carry out further analyses of the identified market for one or both of the following purposes—

(a) reviewing market power determinations made on the basis of an earlier analysis;

(b) deciding whether to make proposals for the modification of SMP conditions set by reference to a market power determination made on such a basis.

F143(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Where on, or in consequence of, a further analysis under this section, OFCOM determine that a person to whom any SMP conditions apply is no longer a person with significant market power in that market, they must revoke every SMP services condition applied to that person by reference to the market power determination made on the basis of the earlier analysis.

(5) Before carrying out a further analysis under subsection (2), OFCOM may review any decision of theirs identifying the markets which it was appropriate to consider for the purpose of carrying out an earlier analysis.

(6) Where, on such a review, OFCOM conclude that the appropriate markets have changed—

(a) they must identify the markets they now consider to be the appropriate ones; and

(b) those markets shall be the identified markets for the purposes of the further analysis.

(7) Sections 79 to 83 apply— (a) in relation to the identification of a services market for the purposes of

reviewing a market power determination under this section, as they apply in relation to the identification of such a market for the purpose of making a market determination; and

(b) in relation to the review of such a determination, as they apply in relation to the making of such a determination.

Textual Amendments F142 Words in s. 84(2) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 46(a) (with Sch. 3 paras. 2, 12) F143 S. 84(3) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 46(b) (with Sch. 3 paras. 2, 12)

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Commencement Information I149 S. 84 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I150 S. 84 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F14484A.Timing of services market identifications and determinations

(1) This section makes provision about the exercise by OFCOM of their powers— (a) to identify and analyse services markets; (b) to make and review market power determinations in respect of such markets;

and (c) to set, modify and revoke SMP services conditions by reference to such

determinations.

(2) Where under Article 15(1) of the Framework Directive the European Commission has adopted a revised recommendation identifying a services market not previously notified to the Commission, OFCOM must ensure that within the specified period they have—

(a) carried out any identification and analysis of markets that is necessary in consequence of the recommendation; and

(b) sent the Commission copies of any resulting proposals with respect to market identification, market power determinations and SMP services conditions.

(3) Where, following the identification and analysis of a services market, OFCOM have made a market power determination in relation to it, they must ensure that within the specified period they have—

(a) carried out a further analysis of the market and reviewed the identification and determination made on the basis of the earlier analysis; and

(b) sent the Commission copies of any resulting proposals with respect to market identification, market power determinations and SMP services conditions.

(4) Subsection (3) applies only where the market power determination was made after 25 May 2011.

(5) Where it appears to OFCOM that they are unlikely to be able to comply with the requirements of subsection (2) or (3) within the specified period, they may request assistance from BEREC under Article 16(7) of the Framework Directive.

(6) Where OFCOM request such assistance— (a) they must inform the Commission of the request; (b) subsection (2) or (as the case may be) (3) applies in the case in question as if

the words “within the specified period” were omitted; and (c) within 6 months of the assistance being provided they must send copies of

any resulting proposals to the Commission.

(7) In this section “the specified period” means— (a) in the case of subsection (2), the period of 2 years from the adoption of the

recommendation; and (b) in the case of subsection (3), the period of 3 years from the publication under

section 79(4) of the notification of the market power determination made on the basis of the earlier analysis, subject to any extension of that period under Article 16(6)(a) of the Framework Directive.]

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Textual Amendments F144 S. 84A inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 47 (with Sch. 3 para. 2)

85 Review of apparatus market identifications and determinations

(1) This section applies where OFCOM have identified and analysed an apparatus market for the purposes of making a market power determination.

(2) OFCOM must, at such intervals as they consider appropriate, carry out further analyses of the identified market for one or both of the following purposes—

(a) reviewing market power determinations made on the basis of an earlier analysis;

(b) deciding whether to make proposals for the modification of SMP conditions set by reference to any such market power determination.

(3) Where on, or in consequence of, a further analysis under this section, OFCOM determine that a person to whom any SMP conditions apply is no longer a person with significant market power in that market, they shall revoke every SMP apparatus condition applied to that person by reference to the market power determination made on the basis of the earlier analysis.

(4) Before carrying out any further analysis under subsection (2), OFCOM may review any decision of theirs identifying the markets which it was appropriate to consider for the purpose of carrying out any earlier analysis.

(5) Where on such a review OFCOM conclude that the appropriate markets have changed—

(a) they shall identify the markets they now consider to be the appropriate ones; and

(b) those markets shall be the identified markets for the purposes of the further analysis.

(6) Where on such a review OFCOM conclude that there is no person at all with significant market power in relation to the identified market—

(a) they must so inform the Secretary of State; and (b) the Secretary of State may by order remove or restrict OFCOM’s power under

this Chapter to set SMP apparatus conditions by reference to that market.

(7) Sections 79, [F14580, 80A and 81(1)] apply— (a) in relation to the identification of a apparatus market for the purposes of

reviewing a market power determination under this section, as they apply in relation to the identification of such a market for the purpose of making a market determination; and

(b) in relation to the review of such a determination, as they apply in relation to the making of such a determination.

Textual Amendments F145 Words in s. 85(7) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 48 (with Sch. 3 paras. 2, 11)

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Commencement Information I151 S. 85 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I152 S. 85 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

86 Cases where review required

(1) OFCOM must not set an SMP services condition by a notification which does not also make the market power determination by reference to which the condition is set unless—

(a) the condition is set by reference to a market power determination which has been reviewed under section 84 and, in consequence of that review, is confirmed in the notification setting the condition; or

(b) the condition is set by reference to a market power determination made in relation to a market in which OFCOM are satisfied there has been no material change since the determination was made.

(2) OFCOM must not modify or revoke SMP services conditions applying to a person except in a case falling within subsection (3) or (4).

(3) The first case is where, for the purpose of determining whether to make the modification or revocation, OFCOM have—

(a) carried out a further analysis under section 84 of the market in question; and (b) reviewed the market power determination for the time being in force in that

person’s case.

(4) The second case is where OFCOM are satisfied that there has not— (a) in the case of an unmodified condition, since the condition was set, or (b) in any other case, since the condition was last modified,

been a material change in the market identified or otherwise used for the purposes of the market power determination by reference to which the condition was set or last modified.

(5) OFCOM must not modify SMP apparatus conditions applying to a person except where, for the purpose of determining whether to make the modification or revocation, they have—

(a) carried out a further analysis under section 85 of the market in question; and (b) reviewed the market power determination for the time being in force in that

person’s case.

(6) A change is a material change for the purposes of subsection (1) or (4) if it is one that is material to—

(a) the setting of the condition in question; or (b) the modification or revocation in question.

Commencement Information I153 S. 86 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I154 S. 86 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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SMP services conditions: subject-matter

87 Conditions about network access etc.

(1) Where OFCOM have made a determination that a person to whom this section applies (“the dominant provider”) has significant market power in an identified services market, they shall—

(a) set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the relevant network or relevant facilities; and

(b) apply those conditions to that person.

(2) This section applies to— (a) a person who provides a public electronic communications network; and (b) a person who makes available facilities that are associated facilities by

reference to such a network.

(3) This section authorises SMP conditions requiring the dominant provider to give such entitlements as OFCOM may from time to time direct as respects—

(a) the provision of network access to the relevant network; (b) the use of the relevant network; and (c) the availability of the relevant facilities.

(4) In determining what conditions authorised by subsection (3) to set in a particular case, OFCOM must take into account, in particular, the following factors—

(a) the technical and economic viability [F146(including the viability of other network access products, whether provided by the dominant provider or another person)] , having regard to the state of market development, of installing and using facilities that would make the proposed network access unnecessary;

(b) the feasibility of the provision of the proposed network access; (c) the investment made by the person initially providing or making available the

network or other facility in respect of which an entitlement to network access is proposed [F147(taking account of any public investment made)] ;

(d) the need to secure effective competition [F148(including, where it appears to OFCOM to be appropriate, economically efficient infrastructure based competition)] in the long term;

(e) any rights to intellectual property that are relevant to the proposal; and (f) the desirability of securing that electronic communications services are

provided that are available throughout the member States.

(5) The conditions authorised by subsection (3) may include provision— (a) for securing fairness and reasonableness in the way in which requests for

network access are made and responded to; and (b) for securing that the obligations contained in the conditions are complied with

within the periods and at the times required by or under the conditions.

[F149(5A) The SMP conditions authorised by this section also include a condition which— (a) is of a technical or operational nature; and

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(b) appears to OFCOM to be appropriate for securing the proper operation of an electronic communications network in compliance with a condition under subsection (3).

(5B) A condition falling within subsection (5A) may provide that compliance with the condition is not required unless a person on whom an entitlement is or may be conferred in pursuance of a requirement imposed by a condition under subsection (3) fulfils such technical or operational requirements as may be specified by OFCOM.

(5C) It shall be the duty of OFCOM, when setting a condition falling within subsection (5A), to ensure that it contains all such provision as they consider appropriate for the purpose of taking account of the relevant international standards.]

(6) The SMP conditions authorised by this section also include one or more of the following—

(a) a condition requiring the dominant provider not to discriminate unduly against particular persons, or against a particular description of persons, in relation to matters connected with network access to the relevant network or with the availability of the relevant facilities;

(b) a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, all such information as they may direct for the purpose of securing transparency in relation to such matters;

(c) a condition requiring the dominant provider to publish, in such manner as OFCOM may from time to time direct, the terms and conditions on which he is willing to enter into an access contract;

(d) a condition requiring the terms and conditions on which the dominant provider is willing to enter into an access contract to include such terms and conditions as may be specified or described in the condition;

(e) a condition requiring the dominant provider to make such modifications as OFCOM may direct of any offer by that provider which sets out the terms and conditions on which he is willing to enter into an access contract.

(7) The SMP conditions authorised by this section also include conditions requiring the dominant provider to maintain a separation for accounting purposes between such different matters relating—

(a) to network access to the relevant network, or (b) to the availability of the relevant facilities,

as OFCOM may from time to time direct.

(8) The SMP conditions authorised by subsection (7) include conditions imposing requirements about the accounting methods to be used in maintaining the separation.

(9) The SMP conditions authorised by this section also include (subject to section 88) conditions imposing on the dominant provider—

(a) such price controls as OFCOM may direct in relation to matters connected with the provision of network access to the relevant network, or with the availability of the relevant facilities;

(b) such rules as they may make in relation to those matters about the recovery of costs and cost orientation;

(c) such rules as they may make for those purposes about the use of cost accounting systems; and

(d) obligations to adjust prices in accordance with such directions given by OFCOM as they may consider appropriate.

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(10) The SMP conditions authorised by subsection (9) include conditions requiring the application of presumptions in the fixing and determination of costs and charges for the purposes of the price controls, rules and obligations imposed by virtue of that subsection.

(11) Where OFCOM set a condition authorised by this section which imposes rules on the dominant provider about the use of cost accounting systems, it shall be their duty also to set, and to apply to him, an SMP condition which imposes on him an obligation—

(a) to make arrangements for a description to be made available to the public of the cost accounting system used in pursuance of that condition; and

(b) to include in that description details of— (i) the main categories under which costs are brought into account for

the purposes of that system; and (ii) the rules applied for the purposes of that system with respect to the

allocation of costs.

(12) In this section— “access contract” means—

(a) a contract for the provision by a person to whom this section applies to another person of network access to the relevant network; or

(b) a contract under which the relevant facilities are made available by a person to whom this section applies to another person;

“the relevant facilities”, in relation to a person to whom this section applies, means the associated facilities made available by that person in relation to a public electronic communications network; and

“the relevant network”, in relation to such a person, means the public electronic communications network provided by him.

Textual Amendments F146 Words in s. 87(4)(a) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 49(a) (with Sch. 3 para. 2) F147 Words in s. 87(4)(c) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 49(b) (with Sch. 3 para. 2) F148 Words in s. 87(4)(d) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 49(c) (with Sch. 3 para. 2) F149 S. 87(5A)-(5C) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 49(d) (with Sch. 3 para. 2)

Commencement Information I155 S. 87 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I156 S. 87 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

88 Conditions about network access pricing etc.

(1) OFCOM are not to set an SMP condition falling within section 87(9) except where— (a) it appears to them from the market analysis carried out for the purpose of

setting that condition that there is a relevant risk of adverse effects arising from price distortion; and

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(b) it also appears to them that the setting of the condition is appropriate for the purposes of—

(i) promoting efficiency; (ii) promoting sustainable competition; and

(iii) conferring the greatest possible benefits on the end-users of public electronic communications services.

(2) In setting an SMP condition falling within section 87(9) OFCOM must take account of the extent of the investment in the matters to which the condition relates of the person to whom it is to apply.

(3) For the purposes of this section there is a relevant risk of adverse affects arising from price distortion if the dominant provider might—

(a) so fix and maintain some or all of his prices at an excessively high level, or (b) so impose a price squeeze,

as to have adverse consequences for end-users of public electronic communications services.

(4) In considering the matters mentioned in subsection (1)(b) OFCOM may— (a) have regard to the prices at which services are available in comparable

competitive markets; (b) determine what they consider to represent efficiency by using such cost

accounting methods as they think fit.

(5) In this section “the dominant provider” has the same meaning as in section 87.

Commencement Information I157 S. 88 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I158 S. 88 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

89 Conditions about network access in exceptional cases

(1) This section applies where— (a) OFCOM have made a determination that a person (“the dominant provider”)

has significant market power in an identified services market; (b) that person is the provider of an electronic communications network or a

person who makes associated facilities available; and (c) OFCOM consider that there are exceptional circumstances making it

appropriate for conditions with respect to the provision of network access to be applied to the dominant provider in addition to those that are required to be or may be applied to him apart from this section.

(2) OFCOM may set the additional SMP conditions and apply them to the dominant provider if—

(a) they have submitted the additional conditions to the European Commission for approval; and

(b) the Commission has approved the imposition on the dominant provider of the obligations contained in those conditions.

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Commencement Information I159 S. 89 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I160 S. 89 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F15089A.Functional separation

(1) This section applies where— (a) OFCOM have made a determination that a person (“the dominant provider”)

has significant market power in an identified services market; (b) that person is the provider of a public electronic communications network or a

person who makes available facilities that are associated facilities by reference to such a network;

(c) it appears to OFCOM that the setting of conditions applying to the dominant provider under section 87 (and, where OFCOM think it appropriate, section 88) has failed to address competition problems identified by OFCOM in carrying out a market analysis for the purpose of setting or modifying those conditions; and

(d) OFCOM have identified important and persisting competition problems or market failures in relation to the provision of network access.

(2) OFCOM may set an SMP services condition (referred to in this section and section 89B as a “functional separation condition”) requiring the dominant provider to transfer activities relating to the provision of network access to an independently operating business entity which is a part of the dominant provider.

(3) Where a functional separation condition is imposed on the dominant provider, the products or services specified in the condition must be given to the dominant provider and to other persons—

(a) on the same timescales, terms and conditions, including those relating to price and service levels, and

(b) by means of the same systems and processes.

(4) A functional separation condition must, where relevant, specify— (a) the precise nature and level of separation, specifying in particular the legal

status of the entity to which activities are transferred; (b) an identification of the assets of that entity and the products or services to be

supplied by it; (c) the governance arrangements (including incentive structures) to ensure the

independence of the staff employed in that entity; (d) rules for ensuring compliance with the obligations imposed by the condition; (e) rules for ensuring transparency of operational procedures, in particular

towards persons, other than the dominant provider, who in OFCOM’s opinion are likely to be affected by the condition; and

(f) a monitoring programme to ensure compliance, including a requirement for the publication of an annual report.

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Textual Amendments F150 Ss. 89A-89C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 50 (with Sch. 3 para. 2)

89B. Functional separation conditions: consultation and notification

(1) Where OFCOM propose to apply a functional separation condition to a person, they must submit their proposal, including the draft functional separation condition, to the European Commission.

(2) The proposal must set out— (a) evidence justifying the conclusions mentioned in section 89A(1)(c) and (d); (b) a reasoned assessment that there is little or no prospect of effective and

sustainable infrastructure based competition within a reasonable time frame; (c) an analysis of the expected impact of the condition on—

(i) OFCOM; (ii) the person on whom the condition is to be imposed;

(iii) the staff of the entity to which activities are to be transferred; (iv) the electronic communications sector as a whole; (v) incentives to invest in the electronic communications sector,

particularly with regard to the need to ensure social and territorial cohesion;

(vi) competition in the services market affected by the condition; and (vii) other persons who in OFCOM’s opinion are likely to be affected by

the condition, including, in particular, consumers; and (d) an analysis of the reasons why a functional separation condition would be

the most effective means of addressing important and persisting competition problems or market failures identified by OFCOM.

(3) OFCOM may set the functional separation condition and apply it to a person if— (a) the Commission has approved the imposition on the person of the obligations

contained in the condition, and (b) OFCOM have considered the impact that the obligations contained in the

condition and approved by the Commission are likely to have on SMP services conditions set in relation to the services markets which, in OFCOM’s opinion, will be affected by the proposed condition.

(4) A proposal for a functional separation condition is to be submitted to the European Commission under this section before OFCOM carry out a consultation under section 48A in relation to the condition.

Textual Amendments F150 Ss. 89A-89C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 50 (with Sch. 3 para. 2)

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89C. Obligation to notify OFCOM of voluntary separation

(1) This section applies where— (a) OFCOM have made a determination that a person (“the dominant provider”)

has significant market power in an identified services market; (b) the dominant provider is the provider of a public electronic communications

network or a person who makes associated facilities available; and (c) the dominant provider decides to transfer a substantial part or all of the

dominant provider’s local access network assets to an independently operating business entity (which may be a part of the dominant provider or another person) for the purpose specified in subsection (2).

(2) That purpose is to use the assets to provide products or services to the dominant provider and to other persons—

(a) on the same timescales, terms and conditions, including those relating to price and service levels; and

(b) by means of the same systems and processes.

(3) The dominant provider must notify OFCOM of— (a) the decision to transfer the assets; (b) any changes to its intentions; and (c) the taking effect of the transfer.

(4) Where OFCOM receive a notification under this section, they must, as soon as reasonably practicable, consider the impact that the transfer is likely to have on SMP services conditions set in relation to the services markets which, in OFCOM’s opinion, will be affected by the proposed transfer.]

Textual Amendments F150 Ss. 89A-89C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 50 (with Sch. 3 para. 2)

F15190 Conditions about carrier selection and pre-selection

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F151 S. 90 omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 51 (with Sch. 3 para. 2)

Commencement Information I161 S. 90 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I162 S. 90 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

91 Conditions about regulation of services etc. for end-users

(1) Where—

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(a) OFCOM have made a determination that a person (“the dominant provider”) has significant market power in an identified services market (“the relevant market”),

(b) the relevant market is one for the end-users of public electronic communications services that are available in that market, and

(c) it appears to OFCOM that the test in subsection (2) is satisfied in the case of that provider,

they shall set, and apply to that provider, such SMP conditions authorised by this section as they consider appropriate.

(2) That test is that OFCOM are unable, by the setting of conditions of the sorts specified in subsection (3), to perform, or fully to perform, their duties under section 4 in relation to the market situation in the relevant market.

(3) The sorts of conditions referred to in subsection (2) are— (a) access-related conditions; and (b) SMP conditions authorised or required by sections 87 to [F15289] .

(4) The reference in subsection (2) to the market situation in the relevant market is a reference to the situation revealed by such market analyses of that market as may have been carried out for the purposes of this Chapter.

(5) The SMP conditions authorised by this section are conditions imposing on the dominant provider such regulatory controls as OFCOM may from time to time direct in relation to the provision by that provider of any public electronic communications service to the end-users of that service.

(6) Where OFCOM set a condition which is authorised by this section and imposes regulatory control on tariffs or other matters to which costs are relevant, they shall also set, and apply to the dominant provider, an SMP condition which requires him, to the extent that they consider it appropriate—

(a) to use such cost accounting systems as may be determined by them; (b) to have the use of those systems audited annually by a qualified auditor; and (c) to publish an annual statement about compliance by the dominant provider

with the obligations imposed by virtue of paragraph (a). F153(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F154(8) In this section “qualified auditor” means a person who— (a) is eligible for appointment as a statutory auditor under Part 42 of the

Companies Act 2006, and (b) if the appointment to carry out such auditing as is mentioned in subsection (6)

(b) were an appointment as a statutory auditor, would not be prohibited from acting by section 1214 of that Act (independence requirement).]

Textual Amendments F152 Word in s. 91(3)(b) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 52(a) (with Sch. 3 para. 2) F153 S. 91(7) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 52(b) (with Sch. 3 para. 2) F154 S. 91(8) substituted (6.4.2008) by The Companies Act 2006 (Consequential Amendments etc) Order

2008 (S.I. 2008/948), art. 2(2), Sch. 1 para. 30(4) (with arts. 6, 11, 12)

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Commencement Information I163 S. 91 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I164 S. 91 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F15592 Conditions about leased lines

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F155 S. 92 omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 53 (with Sch. 3 para. 2)

Commencement Information I165 S. 92 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I166 S. 92 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

SMP apparatus conditions: subject-matter

93 Conditions about apparatus supply

(1) Where OFCOM have made a determination that a person (“the dominant supplier”) has significant market power in an identified apparatus market, they may—

(a) set such SMP conditions authorised by this section as they consider it appropriate to apply to that person in respect of the supply of electronic communications apparatus; and

(b) apply those conditions to that person.

(2) This section authorises the setting of SMP conditions of each of the following descriptions—

(a) conditions requiring the dominant supplier to maintain such a separation for accounting purposes between matters relating to the supply of electronic communications apparatus and other matters as may be described in the conditions;

(b) conditions imposing requirements about the accounting methods to be used in maintaining the separation; and

(c) conditions imposing such rules as OFCOM may make, for the purpose of securing the maintenance of the separation, about the use of cost accounting systems.

(3) This section also authorises the setting of SMP conditions imposing price controls in relation to the hiring of telephones which are hardwired to an electronic communications network.

(4) Conditions set under this section must not make provision in relation to the supply of electronic communications apparatus unless the apparatus is of a description of apparatus as respects the supply of which the dominant supplier has been found to have significant market power.

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(5) For the purposes of this section a telephone is hardwired to an electronic communications network where, in order for it to be used with that network—

(a) it has to be physically attached to apparatus comprised in the network; and (b) the attachment has to be effected by a process that requires the use of a tool.

Commencement Information I167 S. 93 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I168 S. 93 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Enforcement of conditions

94 Notification of contravention of [F156SMP apparatus] conditions

(1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, [F157an SMP apparatus condition] 5, they may give that person a notification under this section.

(2) A notification under this section is one which— (a) sets out the determination made by OFCOM; (b) specifies the condition and contravention in respect of which that

determination has been made; and (c) specifies the period during which the person notified has an opportunity of

doing the things specified in subsection (3).

(3) Those things are— (a) making representations about the matters notified; (b) complying with notified conditions of which he remains in contravention; and (c) remedying the consequences of notified contraventions.

(4) Subject to subsections (5) to (7) and section 98(3), 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.

(5) 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.

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

(7) The person notified shall also have a shorter period if— (a) OFCOM have reasonable grounds for believing that the contravention is a

repeated contravention; (b) they have determined that, in those circumstances, a shorter period would be

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

(8) A notification under this section— (a) may be given in respect of more than one contravention; and

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(b) if it is given in respect of a continuing contravention, may be given in respect of any period during which the contravention has continued.

(9) Where a notification under this section has been given to a person in respect of a contravention of a condition, OFCOM may give a further notification in respect of the same contravention of that condition if, and only if—

(a) the contravention is one occurring after the time of the giving of the earlier notification;

(b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or

(c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

[F158(10) Before giving a notification under this section, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998.

(10A) OFCOM must not give a notification under this section if they consider that it would be more appropriate to proceed under the Competition Act 1998.

(10B) In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.]

(11) For the purposes of this section a contravention is a repeated contravention, in relation to a notification with respect to that contravention, if—

(a) a previous notification under this section has been given in respect of the same contravention or in respect of another contravention of the same condition; and

(b) the subsequent notification is given no more than twelve months after the day of the making by OFCOM of a determination for the purposes of section 95(2) or 96(2) that the contravention to which the previous notification related did occur.

Textual Amendments F156 Words in s. 94 heading inserted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 54(b) (with Sch. 3 paras. 2, 13) F157 Words in s. 94(1) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 54(a) (with Sch. 3 paras. 2, 13) F158 S. 94(10)-(10B) substituted for s. 94(10) (1.4.2014) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 14 para. 17; S.I. 2014/416, art. 2(1)(e) (with Sch.)

Modifications etc. (not altering text) C20 Ss. 94-97 applied (with modifications) by S.I. 2000/730, reg. 18(5) (as inserted (25.7.2003) by Radio

Equipment and Telecommunications Terminal Equipment (Amendment) Regulations 2003 (S.I. 2003/1903), regs. 1(1), 2(12)(b))

Commencement Information I169 S. 94 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I170 S. 94 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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95 Enforcement notification for contravention of conditions

(1) This section applies where— (a) a person (“the notified provider”) has been given a notification under

section 94; (b) OFCOM have allowed the notified provider an opportunity of making

representations about the matters notified; and (c) the period allowed for the making of the representations has expired.

(2) OFCOM may give the notified provider an enforcement notification if they are satisfied—

(a) that he has, in one or more of the respects notified, been in contravention of a condition specified in the notification under section 94; and

(b) that he has not, during the period allowed under that section, taken all such steps as they consider appropriate—

(i) for complying with that condition; and (ii) for remedying the consequences of the notified contravention of that

condition.

(3) An enforcement notification is a notification which imposes one or both of the following requirements on the notified provider—

(a) a requirement to take such steps for complying with the notified condition as may be specified in the notification;

(b) a requirement to take such steps for remedying the consequences of the notified contravention as may be so specified.

(4) A decision of OFCOM to give an enforcement notification to a person— (a) must be notified by them to that person, together with the reasons for the

decision, no later than one week after the day on which it is taken; and (b) must fix a reasonable period for the taking of the steps required by the

notification.

(5) It shall be the duty of a person to whom an enforcement notification has been given to comply with it.

(6) That duty 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.

Modifications etc. (not altering text) C20 Ss. 94-97 applied (with modifications) by S.I. 2000/730, reg. 18(5) (as inserted (25.7.2003) by Radio

Equipment and Telecommunications Terminal Equipment (Amendment) Regulations 2003 (S.I. 2003/1903), regs. 1(1), 2(12)(b))

Commencement Information I171 S. 95 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I172 S. 95 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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96 Penalties for contravention of conditions

(1) This section applies (in addition to section 95) where— (a) a person (“the notified provider”) has been given a notification under

section 94; (b) OFCOM have allowed the notified provider an opportunity of making

representations about the matters notified; and (c) the period allowed for the making of the representations has expired.

(2) OFCOM may impose a penalty on the notified provider if he— (a) has, in one or more of the respects notified, been in contravention of a

condition specified in the notification under section 94; and (b) has not, during the period allowed under that section, taken the steps OFCOM

consider appropriate— (i) for complying with the notified condition; and

(ii) for remedying the consequences of the notified contravention of that condition.

(3) Where a notification under section 94 relates to more than one contravention, a separate penalty may be imposed in respect of each contravention.

(4) Where such a notification relates to a continuing contravention, no more than one penalty may be imposed in respect of the period of contravention specified in the notification.

(5) OFCOM may also impose a penalty on the notified provider if he has contravened, or is contravening, a requirement of an enforcement notification given under section 95 in respect of the notified contravention.

(6) Where OFCOM impose a penalty on a person under this section, they shall— (a) within one week of making their decision to impose the penalty, notify that

person of that decision and of their reasons for that decision; and (b) in that notification, fix a reasonable period after it is given as the period within

which the penalty is to be paid.

(7) A penalty imposed under this section— (a) must be paid to OFCOM; and (b) if not paid within the period fixed by them, is to be recoverable by them

accordingly.

Modifications etc. (not altering text) C20 Ss. 94-97 applied (with modifications) by S.I. 2000/730, reg. 18(5) (as inserted (25.7.2003) by Radio

Equipment and Telecommunications Terminal Equipment (Amendment) Regulations 2003 (S.I. 2003/1903), regs. 1(1), 2(12)(b))

Commencement Information I173 S. 96 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I174 S. 96 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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[F15996A.Notification of contravention of condition other than SMP apparatus condition

(1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a condition (other than an SMP apparatus condition) set under section 45, they may give that person a notification under this section.

(2) A notification under this section is one which— (a) sets out the determination made by OFCOM; (b) specifies the condition and contravention in respect of which that

determination has been made; (c) specifies the period during which the person notified has an opportunity to

make representations; (d) specifies the steps that OFCOM think should be taken by the person in order

to— (i) comply with the condition;

(ii) remedy the consequences of the contravention; (e) specifies any penalty which OFCOM are minded to impose in accordance

with section 96B; (f) where the contravention is serious, specifies any direction which OFCOM are

minded to give under section 100; and (g) where the contravention relates to a condition set under sections 87 to 91,

specifies any direction which OFCOM are minded to give under section 100A.

(3) A notification under this section— (a) may be given in respect of more than one contravention; and (b) if it is given in respect of a continuing contravention, may be given in respect

of any period during which the contravention has continued.

(4) Where a notification under this section has been given to a person in respect of a contravention of a condition, OFCOM may give a further notification in respect of the same contravention of that condition if, and only if—

(a) the contravention is one occurring after the time of the giving of the earlier notification;

(b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or

(c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

[F160(5) Before giving a notification under this section, OFCOM must consider whether it would be more appropriate to proceed under the Competition Act 1998.

(6) OFCOM must not give a notification under this section if they consider that it would be more appropriate to proceed under the Competition Act 1998.

(7) In a case where OFCOM decide that it would be more appropriate to proceed under the Competition Act 1998, they must publish a statement to that effect in such manner as they consider appropriate for bringing their decision to the attention of persons whom they consider are likely to be affected by it.]

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Textual Amendments F159 Ss. 96A-96C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 55 (with Sch. 3 paras. 2, 13) F160 S. 96A(5)-(7) substituted for s. 96A(5) (1.4.2014) by Enterprise and Regulatory Reform Act 2013

(c. 24), s. 103(3), Sch. 14 para. 18; S.I. 2014/416, art. 2(1)(e) (with Sch.)

96B. Penalties for contravention of conditions

(1) This section applies where a person is given a notification under section 96A which specifies a proposed penalty.

(2) Where the notification relates to more than one contravention, a separate penalty may be specified in respect of each contravention.

(3) Where the notification relates to a continuing contravention, no more than one penalty may be specified in respect of the period of contravention specified in the notification.

(4) But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a) the giving of a confirmation decision under section 96C(4)(c) which requires immediate action; or

(b) the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(5) The amount of a penalty under subsection (4) is to be such amount not exceeding £20,000 per day as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.

Textual Amendments F159 Ss. 96A-96C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 55 (with Sch. 3 paras. 2, 13)

96C. Enforcement of notification under section 96A

(1) This section applies where— (a) a person has been given a notification under section 96A; (b) OFCOM have allowed the person an opportunity to make representations

about the matters notified; and (c) the period allowed for the making of representations has expired.

(2) OFCOM may— (a) give the person a decision (a “confirmation decision”) confirming the

imposition of requirements on the person, or the giving of a direction to the person, or both, in accordance with the notification under section 96A; or

(b) inform the person that they are satisfied with the person’s representations and that no further action will be taken.

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(3) OFCOM may not give a confirmation decision to a person unless, after considering any representations, they are satisfied that the person has, in one or more of the respects notified, been in contravention of a condition specified in the notification under section 96A.

(4) A confirmation decision— (a) must be given to the person without delay; (b) must include reasons for the decision; (c) may require immediate action by the person to comply with requirements of

a kind mentioned in section 96A(2)(d), or may specify a period within which the person must comply with those requirements; and

(d) may require the person to pay— (i) the penalty specified in the notification under section 96A, or

(ii) such lesser penalty as OFCOM consider appropriate in the light of the person’s representations or steps taken by the person to comply with the condition or remedy the consequences of the contravention, and

may specify the period within which the penalty is to be paid.

(5) It is the duty of the person to comply with any requirement imposed by a confirmation decision.

(6) That duty is 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; or (c) for any other appropriate remedy or relief.

(7) A penalty imposed by a confirmation decision— (a) must be paid to OFCOM; and (b) if not paid within the period specified by them, is to be recoverable by them

accordingly.]

Textual Amendments F159 Ss. 96A-96C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 55 (with Sch. 3 paras. 2, 13)

97 Amount of penalty under s. 96 [F161or 96A]

(1) The amount of a penalty imposed under section 96 [F162or notified under section 96A (other than a penalty falling within section 96B(4))] is to be such amount not exceeding ten per cent. of the turnover of the [F163person] ’s relevant business for the relevant period as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.

(2) In making [F164a determination in relation to a penalty imposed under section 96] OFCOM must have regard to—

(a) any representations made to them by the [F165person] ;

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(b) any steps taken by him towards complying with the conditions contraventions of which have been notified to him under section 94; and

(c) any steps taken by him for remedying the consequences of those contraventions.

(3) For the purposes of this section— (a) the turnover of a person’s relevant business for a period shall be calculated in

accordance with such rules as may be set out by order made by the Secretary of State; and

(b) provision may also be made by such an order for determining what is to be treated as the network, service, facility or business by reference to which the calculation of that turnover falls to be made.

(4) No order is to be made containing provision authorised by subsection (3) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(5) In this section— “relevant business” means (subject to the provisions of an order under

subsection (3) and to subsections (6) and (7)) so much of any business carried on by the [F166person] as consists in any one or more of the following—

(a) the provision of an electronic communications network; (b) the provision of an electronic communications service; (c) the making available of associated facilities; (d) the supply of directories for use in connection with the use of such a

network or service; (e) the making available of directory enquiry facilities for use for purposes

connected with the use of such a network or service; (f) any business not falling within any of the preceding paragraphs which is

carried on in association with any business in respect of which any access- related condition is applied to the person carrying it on;

“relevant period”, in relation to a contravention by a person of a condition set under section 45, means—

(a) except in a case falling within paragraph (b) or (c), the period of one year ending with the 31st March next before the time when notification of the contravention was given under section 94 [F167or 96A] ;

(b) in the case of a person who at that time has been carrying on that business for a period of less than a year, the period, ending with that time, during which he has been carrying it on; and

(c) in the case of a person who at that time has ceased to carry on that business, the period of one year ending with the time when he ceased to carry it on.

(6) In the case of a contravention of an SMP apparatus condition the relevant business is so much of any business carried on by the person in respect of whose contravention the penalty is imposed as consists in the supply of electronic communications apparatus.

(7) So much of any business of a person on whom the penalty is imposed as falls within paragraph (f) of the definition of a relevant business shall be disregarded for the purposes of this section except in relation to—

(a) a contravention of an access-related condition imposed in respect of that business; or

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(b) a contravention of an enforcement notification given under section 95 [F168or a confirmation decision under section 96C] relating to such a condition.

F169(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F161 Words in s. 97 heading inserted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 56(g) (with Sch. 3 paras. 2, 13) F162 Words in s. 97(1) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 56(a) (with Sch. 3 paras. 2, 13) F163 Word in s. 97(1) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 56(b) (with Sch. 3 paras. 2, 13) F164 Words in s. 97(2) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 56(c) (with Sch. 3 paras. 2, 13) F165 Word in s. 97(2)(a) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 56(b) (with Sch. 3 paras. 2, 13) F166 Word in s. 97(5) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 56(b) (with Sch. 3 paras. 2, 13) F167 Words in s. 97(5) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 56(d) (with Sch. 3 paras. 2, 13) F168 Words in s. 97(7) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 56(e) (with Sch. 3 paras. 2, 13) F169 S. 97(8) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 56(f) (with Sch. 3 paras. 2, 13)

Modifications etc. (not altering text) C20 Ss. 94-97 applied (with modifications) by S.I. 2000/730, reg. 18(5) (as inserted (25.7.2003) by Radio

Equipment and Telecommunications Terminal Equipment (Amendment) Regulations 2003 (S.I. 2003/1903), regs. 1(1), 2(12)(b))

Commencement Information I175 S. 97 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I176 S. 97 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

98 Power to deal with urgent cases

(1) This section applies where OFCOM determine— (a) that they are entitled to give a notification under section [F17096A] with respect

to a contravention by a person (“the contravening provider”) of a condition set under section 45, F171...;

(b) that there are reasonable grounds for suspecting that the case is an urgent case; and

(c) that the urgency of the case makes it appropriate for OFCOM to take action under this section.

(2) A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates an immediate risk of—

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

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(b) serious economic or operational problems for persons (other than the contravening provider) who are communications providers or persons who make associated facilities available; or

(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

F172(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) OFCOM shall F173... have power to give to the contravening provider— (a) a direction that his entitlement to provide electronic communications

networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

(b) a direction that that entitlement is restricted in the respects set out in the direction.

(5) A direction under subsection (4)— (a) must specify the networks, services and facilities to which it relates; and (b) except so far as it otherwise provides, takes effect for an indefinite period

beginning with the time at which it is notified to the person to whom it is given.

(6) A direction under subsection (4)— (a) in providing for the effect of a suspension or restriction to be postponed, may

provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening provider as appear to OFCOM to be appropriate for the purpose of protecting his customers.

(7) Those conditions may include a condition requiring the making of payments— (a) by way of compensation for loss or damage suffered by the contravening

provider’s customers as a result of the direction; or (b) in respect of annoyance, inconvenience or anxiety to which they have been

put in consequence of the direction.

(8) OFCOM have power to revoke a direction given under subsection (4)— (a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such networks, services or facilities, or parts

of a network, service or facility, as they may determine.

Textual Amendments F170 Word in s. 98(1)(a) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 57(a) (with Sch. 3 paras. 2, 13) F171 Words in s. 98(1)(a) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 57(a) (with Sch. 3 paras. 2, 13) F172 S. 98(3) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 57(b) (with Sch. 3 paras. 2, 13)

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F173 Word in s. 98(4) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 57(c) (with Sch. 3 paras. 2, 13)

Commencement Information I177 S. 98 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I178 S. 98 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

99 Confirmation of directions under s. 98

(1) As soon as reasonably practicable after giving a direction under section 98(4), OFCOM must give the person to whom it is given—

(a) an opportunity of making representations to them about the grounds on which it was given and its effect; and

(b) an opportunity of proposing steps to remedy the situation.

(2) As soon as practicable after the period allowed by OFCOM for making those representations has ended [F174(and in any event within 3 months beginning with the day on which the direction under section 98(4) was given)] , they must determine—

(a) whether the contravention providing the grounds for the giving of the direction did occur; and

(b) whether the circumstances made it an urgent case justifying the giving of the direction.

[F175(2A) The period of 3 months mentioned in subsection (2) may be extended by up to 3 months if OFCOM—

(a) require additional time to consider representations received; or (b) decide that it is necessary to obtain additional information from the person in

order to make a determination under subsection (2).]

(3) If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

(4) If not, they must exercise their power to revoke it.

(5) As soon as reasonably practicable after determining whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.

(6) Conditions included in a direction by virtue of section 98(7) have effect only if the direction is confirmed.

Textual Amendments F174 Words in s. 99(2) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 58(a) (with Sch. 3 paras. 2, 13) F175 S. 99(2A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 58(b) (with Sch. 3 paras. 2, 13)

Commencement Information I179 S. 99 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I180 S. 99 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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100 Suspending service provision for contraventions of conditions

[F176(1) OFCOM may give a direction under this section to a person where— (a) either Condition A or Condition B is satisfied in relation to the person; and (b) the giving of a direction is appropriate and proportionate to the contravention

in respect of which it is imposed.

(1A) Condition A is that— (a) the person is in serious contravention of a condition set under section 45, other

than SMP apparatus conditions; and (b) the proposed direction has been notified to the person under section 96A and

confirmed by a confirmation decision under section 96C.

(1B) Condition B is that— (a) the person has repeatedly contravened a condition set under section 45, other

than SMP apparatus conditions; and (b) an attempt, by the imposition of penalties or the giving of notifications under

section 96A and confirmation decisions under section 96C, or both, to secure compliance with the contravened conditions has failed.

(1C) Where Condition A is satisfied, a direction under this section is given where OFCOM give a confirmation decision under section 96C to the person in respect of a direction proposed in a notification under section 96A.

(1D) Where Condition B is satisfied, a direction under this section is to be given in accordance with the procedure set out in section 102.]

(2) A direction under this section is— (a) a direction that the entitlement of the [F177person] to provide electronic

communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

(b) a direction that that entitlement is restricted in the respects set out in the direction.

(3) A direction under this section— (a) must specify the networks, services and facilities to which it relates; and (b) except so far as it otherwise provides, takes effect for an indefinite period

beginning with the time at which it is notified to the person to whom it is given.

(4) A direction under this section— (a) in providing for the effect of a suspension or restriction to be postponed, may

provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the [F178person] as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

(5) Those conditions may include a condition requiring the making of payments— (a) by way of compensation for loss or damage suffered by the [F179person] ’s

customers as a result of the direction; or

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(b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

(6) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction under this section or modify its conditions—

(a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such networks, services or facilities, or parts

of a network, service or facility, as they may determine.

(7) For the purposes of this section there are repeated contraventions by a person of conditions set under section 45 to the extent that—

[F180(a) in the case of a previous notification of a contravention given to that person under section 96A, OFCOM have given a confirmation decision to that person under section 96C(2) in respect of the contravention;]

[F181(b) in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of a condition under section 45;]

(c) the previous [F182confirmation decision] and the subsequent ones all relate to contraventions of the same condition (whether the same contravention or different contraventions).

Textual Amendments F176 S. 100(1)-(1D) substituted for s. 100(1) (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 59(a) (with Sch. 3 paras. 2, 13, 14)

F177 Word in s. 100(2)(a) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 59(b) (with Sch. 3 paras. 2, 13)

F178 Word in s. 100(4)(b) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 59(b) (with Sch. 3 paras. 2, 13)

F179 Word in s. 100(5)(a) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 59(b) (with Sch. 3 paras. 2, 13)

F180 S. 100(7)(a) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 59(c)(i) (with Sch. 3 paras. 2, 13)

F181 S. 100(7)(b) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 59(c)(ii) (with Sch. 3 paras. 2, 13)

F182 Words in s. 100(7)(c) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 59(c)(iii) (with Sch. 3 paras. 2, 13)

Commencement Information I181 S. 100 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I182 S. 100 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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[F183100A.Suspending service provision for breach of SMP services condition

(1) OFCOM may give a direction under this section to a person who provides a public electronic communications network, or a person who makes available facilities that are associated facilities by reference to such a network, if OFCOM are satisfied that—

(a) the person is or has been in contravention of conditions set under sections 87 to 91; and

(b) the provision of an electronic communications service by the person on that public electronic communications network could result in significant harm to competition.

(2) A direction under this section is given where OFCOM give a confirmation decision under section 96C to the person in respect of a direction proposed in a notification under section 96A.

(3) A direction under this section is— (a) a direction that the entitlement of the person to provide an electronic

communications service over the public electronic communications network to which the contravened condition relates is suspended (either generally or in relation to particular services); or

(b) a direction that the person may not begin to provide an electronic communications service over the public electronic communications network to which the contravened provision relates.

(4) A direction under this section— (a) must specify the electronic communications services to which it relates, and (b) takes effect for an indefinite period beginning with the time at which a

confirmation decision relating to the direction is given to the person under section 96C.

(5) A direction under this section— (a) may provide for a suspension or prohibition to take effect only at a time

determined by or in accordance with the terms of the direction; and (b) in connection with a suspension or prohibition contained in the direction or

with the postponement of its effect, may impose such conditions on the person to whom it is given as appear to OFCOM to be appropriate for the purpose of protecting that person’s customers.

(6) Those conditions may include a condition requiring the making of payments— (a) by way of compensation for loss or damage suffered by the person’s customers

as a result of the direction; or (b) in respect of annoyance, inconvenience or anxiety to which they have been

put in consequence of the direction.

(7) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction under this section or modify its conditions—

(a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such services, or parts of a service, as they

may determine.]

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Textual Amendments F183 S. 100A inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 60 (with Sch. 3 paras. 2, 13, 14)

101 Suspending apparatus supply for contraventions of conditions

(1) OFCOM may give a direction under this section to a person who supplies electronic communications apparatus (“the contravening supplier”) if they are satisfied—

(a) that he is or has been in serious and repeated contravention of any SMP apparatus conditions;

(b) that an attempt, by the imposition of penalties or the giving of enforcement notifications under section 95 or both, to secure compliance with the contravened conditions has failed; and

(c) that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions.

(2) A direction under this section is— (a) a direction to the contravening supplier to cease to act as a supplier of

electronic communications apparatus (either generally or in relation to apparatus of a particular description); or

(b) a direction imposing such restrictions as may be set out in the direction on the supply by that supplier of electronic communications apparatus (either generally or in relation to apparatus of a particular description).

(3) A direction under this section takes effect, except so far as it otherwise provides, for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

(4) A direction under this section— (a) may provide for a prohibition or restriction to take effect only at a time

determined by or in accordance with the terms of the direction; and (b) in connection with a prohibition or restriction contained in the direction or

with the postponement of its effect, may impose such conditions on the contravening supplier as appear to OFCOM to be appropriate for the purpose of protecting that supplier’s customers.

(5) Those conditions may include a condition requiring the making of payments— (a) by way of compensation for loss or damage suffered by the contravening

supplier’s customers as a result of the direction; or (b) in respect of annoyance, inconvenience or anxiety to which they have been

put in consequence of the direction.

(6) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may at any time revoke a direction under this section or modify its conditions—

(a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such apparatus or descriptions of apparatus

as they may determine.

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(7) For the purposes of this section there are repeated contraventions by a person of SMP apparatus conditions to the extent that—

(a) in the case of a previous notification given to that person under section 94, OFCOM have determined for the purposes of section 95(2) or 96(2) that such a contravention did occur;

(b) in the period of twelve months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of an SMP apparatus condition; and

(c) the previous notification and the subsequent ones all relate to contraventions of the same condition (whether the same contravention or different contraventions).

Commencement Information I183 S. 101 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I184 S. 101 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

102 Procedure for directions under ss. 100 and 101

(1) Except in an urgent case, [F184or a case where Condition A in section 100 is satisfied,] OFCOM are not to give a direction under section 100 or 101 unless they have—

(a) notified the contravening provider or contravening supplier of the proposed direction and of the conditions (if any) which they are proposing to impose by that direction;

(b) provided him with an opportunity of making representations about the proposals and of proposing steps for remedying the situation; and

(c) considered every representation and proposal made to them during the period allowed by them for the contravening provider or the contravening supplier to take advantage of that opportunity.

[F185(2) That period must be— (a) in relation to a direction under section 100, such reasonable period as OFCOM

may determine, and (b) in relation to a direction under section 101, a period ending not less than one

month after the day of the giving of the notification.]

(3) As soon as practicable after giving a direction under section 100 or 101 in an urgent case, OFCOM must, provide the contravening provider or contravening supplier with an opportunity of—

(a) making representations about the effect of the direction and of any of its conditions; and

(b) proposing steps for remedying the situation.

[F186(3A) In relation to a direction under section 100 in an urgent case, as soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—

(a) whether the contravention providing the grounds for the giving of the direction did occur; and

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(b) whether the circumstances made it an urgent case justifying the giving of the direction.

(3B) The period of 3 months mentioned in subsection (3A) may be extended by up to 3 months if OFCOM—

(a) require additional time to consider representations received; or (b) decide that it is necessary to obtain additional information from the person in

order to make a determination under subsection (3A).]

(4) A case is an urgent case for the purposes of this section if OFCOM— (a) consider that it would be inappropriate, because the contraventions in question

fall within subsection (5), to allow time, before giving a direction under section 100 or 101, for the making and consideration of representations; and

(b) decide for that reason to act in accordance with subsection (3), instead of subsection (1).

(5) The contraventions fall within this subsection if they have resulted in, or create an immediate risk of—

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

(b) serious economic or operational problems for persons (apart from the contravening provider or contravening supplier) who are communications providers or persons who make associated facilities available; or

(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

(6) In this section— [F187“contravening provider” means a person who is a communications

provider or makes associated facilities available;] “contravening supplier” has the same meaning as in section 101.

Textual Amendments F184 Words in s. 102(1) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 61(a) (with Sch. 3 paras. 2, 13) F185 S. 102(2) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 61(b) (with Sch. 3 paras. 2, 13) F186 S. 102(3A)(3B) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 61(c) (with Sch. 3 paras. 2, 13) F187 Words in s. 102(6) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 61(d) (with Sch. 3 paras. 2, 13)

Commencement Information I185 S. 102 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I186 S. 102 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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103 Enforcement of directions under ss. 98, 100 [F188, 100A] and 101

(1) A person is guilty of an offence if he provides an electronic communications network or electronic communications service, or makes available any associated facility—

(a) while his entitlement to do so is suspended by a direction under section [F18998(4), 100 or 100A] ; or

(b) in contravention of a restriction contained in such a direction.

(2) A person is guilty of an offence if he supplies electronic communications apparatus— (a) while prohibited from doing so by a direction under section 101; or (b) in contravention of a restriction contained in such a direction.

(3) A person guilty of an offence under this section shall be liable— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine.

[F190(4) Sections 96A to 99 apply in relation to a contravention of conditions imposed by a direction under section 98, 100 or 100A as they apply in relation to a contravention of conditions set under section 45, other than SMP apparatus conditions.

(5) Sections 94 to 96 and 97 to 99 apply in relation to a contravention of conditions imposed by a direction under section 101 as they apply in relation to a contravention of SMP apparatus conditions.]

Textual Amendments F188 Words in s. 103 heading inserted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 62(c) (with Sch. 3 paras. 2, 13) F189 Words in s. 103(1)(a) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 62(a) (with Sch. 3 paras. 2, 13) F190 S. 103(4)(5) substituted for s. 103(4) (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 62(b) (with Sch. 3 paras. 2, 13)

Commencement Information I187 S. 103 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I188 S. 103 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

104 Civil liability for breach of conditions or [F191confirmation decision]

(1) The obligation of a person to comply with— (a) the conditions set under section 45 which apply to him, (b) requirements imposed on him by an enforcement notification under

section 95, F192... [F193(ba) requirements imposed on the person by a notification under section 96A and

a confirmation decision under section 96C; and] (c) the conditions imposed by a direction under section 98 [F194, 100 or 100A] ,

shall be a duty owed to every person who may be affected by a contravention of the condition or requirement.

(2) Where a duty is owed by virtue of this section to a person— (a) a breach of the duty that causes that person to sustain loss or damage, and

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(b) an act which— (i) by inducing a breach of the duty or interfering with its performance,

causes that person to sustain loss or damage, and (ii) is done wholly or partly for achieving that result,

shall be actionable at the suit or instance of that person.

(3) In proceedings brought against a person by virtue of subsection (2)(a) it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition or requirement in question.

(4) The consent of OFCOM is required for the bringing of proceedings by virtue of subsection (1)(a).

(5) Where OFCOM give a consent for the purposes of subsection (4) subject to conditions relating to the conduct of the proceedings, the proceedings are not to be carried on by that person except in compliance with those conditions.

Textual Amendments F191 Words in s. 104 heading substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(c) (with Sch. 3 paras. 2, 13) F192 Word in s. 104(1)(b) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(a) (with Sch. 3 paras. 2, 13) F193 S. 104(1)(ba) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(a) (with Sch. 3 paras. 2, 13) F194 Words in s. 104(1)(c) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 63(b) (with Sch. 3 paras. 2, 13)

Commencement Information I189 S. 104 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I190 S. 104 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

OFCOM’s duty to intervene on network access issues

F195105 Consideration and determination of network access questions

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F195 S. 105 omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 64 (with Sch. 3 para. 2)

Commencement Information I191 S. 105 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I192 S. 105 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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[F196Security of public electronic communications networks and services

Textual Amendments F196 Ss. 105A-105D and cross-heading inserted (26.5.2011) by The Electronic Communications and

Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 65 (with Sch. 3 para. 2)

105A. Requirement to protect security of networks and services

(1) Network providers and service providers must take technical and organisational measures appropriately to manage risks to the security of public electronic communications networks and public electronic communications services.

(2) Measures under subsection (1) must, in particular, include measures to prevent or minimise the impact of security incidents on end-users.

(3) Measures under subsection (1) taken by a network provider must also include measures to prevent or minimise the impact of security incidents on interconnection of public electronic communications networks.

(4) A network provider must also take all appropriate steps to protect, so far as possible, the availability of the provider’s public electronic communications network.

(5) In this section and sections 105B and 105C— “network provider” means a provider of a public electronic

communications network, and “service provider” means a provider of a public electronic communications

service.

105B. Requirement to notify OFCOM of security breach

(1) A network provider must notify OFCOM— (a) of a breach of security which has a significant impact on the operation of a

public electronic communications network, and (b) of a reduction in the availability of a public electronic communications

network which has a significant impact on the network.

(2) A service provider must notify OFCOM of a breach of security which has a significant impact on the operation of a public electronic communications service.

(3) If OFCOM receive a notification under this section, they must, where they think it appropriate, notify—

(a) the regulatory authorities in other member States, and (b) the European Network and Information Security Agency (“ENISA”).

(4) OFCOM may also inform the public of a notification under this section, or require the network provider or service provider to inform the public, if OFCOM think that it is in the public interest to do so.

(5) OFCOM must prepare an annual report summarising notifications received by them under this section during the year, and any action taken in response to a notification.

(6) A copy of the annual report must be sent to the European Commission and to ENISA.

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105C. Requirement to submit to audit

(1) OFCOM may carry out, or arrange for another person to carry out, an audit of the measures taken by a network provider or a service provider under section 105A.

(2) A network provider or a service provider must— (a) co-operate with an audit under subsection (1), and (b) pay the costs of the audit.

105D. Enforcement of obligations under sections 105A to 105C

(1) Sections 96A to 96C, 98 to 100, 102 and 103 apply in relation to a contravention of a requirement under sections 105A to 105C as they apply in relation to a contravention of a condition set under section 45, other than an SMP apparatus condition.

(2) The obligation of a person to comply with the requirements of section 105A to 105C is a duty owed to every person who may be affected by a contravention of a requirement, and—

(a) section 104 applies in relation to that duty as it applies in relation to the duty set out in subsection (1) of that section, and

(b) section 104(4) applies in relation to proceedings brought by virtue of this section as it applies in relation to proceedings by virtue of section 104(1)(a).

(3) The amount of a penalty imposed under sections 96A to 96C, as applied by this section, is to be such amount not exceeding £2 million as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.]

Electronic communications code

106 Application of the electronic communications code

(1) In this Chapter “the electronic communications code” means [F197the code set out in Schedule 3A] .

F198(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) The electronic communications code shall have effect— (a) in the case of a person to whom it is applied by a direction given by OFCOM;

and (b) in the case of the Secretary of State or any Northern Ireland department where

the Secretary of State or that department is providing or proposing to provide an electronic communications network.

(4) The only purposes for which the electronic communications code may be applied in a person’s case by a direction under this section are—

(a) the purposes of the provision by him of an electronic communications network; or

(b) the purposes of the provision by him of a system of [F199infrastructure] which he is making available, or proposing to make available, for use by providers of electronic communications networks for the purposes of the provision by them of their networks.

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(5) A direction applying the electronic communications code in any person’s case may provide for that code to have effect in his case—

(a) in relation only to such places or localities as may be specified or described in the direction;

(b) for the purposes only of the provision of such electronic communications network, or part of an electronic communications network, as may be so specified or described; or

(c) for the purposes only of the provision of such [F200system of infrastructure], or part of a [F200system of infrastructure], as may be so specified or described.

(6) The Secretary of State may by order provide for the electronic communications code to have effect for all purposes with a different amount substituted for the amount for the time being specified in paragraph [F20185(7)] of the code (minimum compensation).

F202(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F197 Words in s. 106(1) substituted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes,

28.12.2017 in so far as not already in force) by Digital Economy Act 2017 (c. 30), ss. 4(4), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

F198 S. 106(2) omitted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes, 28.12.2017 in so far as not already in force) by virtue of Digital Economy Act 2017 (c. 30), ss. 4(5), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

F199 Word in s. 106(4)(b) substituted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes, 28.12.2017 in so far as not already in force) by Digital Economy Act 2017 (c. 30), ss. 4(6), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

F200 Words in s. 106(5)(c) substituted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes, 28.12.2017 in so far as not already in force) by Digital Economy Act 2017 (c. 30), ss. 4(7), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

F201 Words in s. 106(6) substituted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes, 28.12.2017 in so far as not already in force) by Digital Economy Act 2017 (c. 30), ss. 4(8), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

F202 S. 106(7) omitted (31.7.2017 for specified purposes, 22.11.2017 for specified purposes, 28.12.2017 in so far as not already in force) by virtue of Digital Economy Act 2017 (c. 30), ss. 4(9), 118(6); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(a)

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I193 S. 106 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I194 S. 106 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

107 Procedure for directions applying code

(1) OFCOM are not to give a direction applying the electronic communications code in any person’s case except on an application made for the purpose by that person.

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[F203(1A) Regulation 3 of the Electronic Communications and Wireless Telegraphy Regulations 2011 makes provision about the time within which an application under subsection (1) must be determined.]

(2) If OFCOM publish a notification setting out their requirements with respect to— (a) the content of an application for a direction applying the electronic

communications code, and (b) the manner in which such an application is to be made,

such an application must be made in accordance with the requirements for the time being in force.

(3) OFCOM may— (a) from time to time review the requirements for the time being in force for the

purposes of subsection (2); and (b) on any such review, modify them in such manner as they think fit by giving

a notification of the revised requirements.

[F204(3A) A modification may not be made under subsection (3) unless the modification is— (a) objectively justifiable, and (b) proportionate to what it is intended to achieve.

(3B) Before making a modification under subsection (3), OFCOM must publish a notification of the proposed modification which contains the following—

(a) a statement of the proposal, (b) a statement of their reasons for the proposal, and (c) a statement of the period within which representations may be made to them

about the proposal.

(3C) The period specified under subsection (3B)(c) must end no less than one month after the day of the publication of the notification.]

(4) In considering whether to apply the electronic communications code in any person’s case, OFCOM must have regard, in particular, to each of the following matters—

(a) the benefit to the public of the electronic communications network or conduit system by reference to which the code is to be applied to that person;

(b) the practicability of the provision of that network or system without the application of the code;

(c) the need to encourage the sharing of the use of electronic communications apparatus;

(d) whether the person in whose case it is proposed to apply the code will be able to meet liabilities arising as a consequence of—

(i) the application of the code in his case; and (ii) any conduct of his in relation to the matters with which the code deals.

(5) For the purposes of subsections (6) and (7) of section 3 OFCOM’s duty under subsection (4) ranks equally with their duties under that section.

(6) Before giving a direction under section 106, OFCOM must— (a) publish a notification of their proposal to give the direction; and (b) consider any representations about that proposal that are made to them within

the period specified in the notification.

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(7) A notification for the purposes of subsection (6)(a) must contain the following— (a) a statement of OFCOM’s proposal; (b) a statement of their reasons for that proposal; (c) a statement of the period within which representations may be made to them

about the proposal.

(8) The statement of OFCOM’s proposal must— (a) contain a statement that they propose to apply the code in the case of the

person in question; (b) set out any proposals of theirs to impose terms under section 106(5);

but this subsection is subject to sections 113(7) and 115(5).

(9) The period specified as the period within which representations may be made must end no less than one month after the day of the publication of the notification.

(10) The publication by OFCOM of a notification for any of the purposes of this section must be a publication in such manner as OFCOM consider appropriate for bringing the notification to the attention of the persons who, in their opinion, are likely to be affected by it.

Textual Amendments F203 S. 107(1A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 66(a) (with Sch. 3 paras. 1, 2) F204 S. 107(3A)-(3C) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 66(b) (with Sch. 3 para. 2)

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I195 S. 107 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I196 S. 107 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

108 Register of persons in whose case code applies

(1) It shall be the duty of OFCOM to establish and maintain a register of persons in whose case the electronic communications code applies by virtue of a direction under section 106.

(2) OFCOM must record in the register every direction given under that section.

(3) Information recorded in the register must be recorded in such manner as OFCOM consider appropriate.

(4) It shall be the duty of OFCOM to publish a notification setting out— (a) the times at which the register is for the time being available for public

inspection; and (b) the fees that must be paid for, or in connection with, an inspection of the

register.

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(5) The publication of a notification under subsection (4) must be a publication in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(6) OFCOM must make the register available for public inspection— (a) during such hours, and (b) on payment of such fees,

as are set out in the notification for the time being in force under subsection (4).

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I197 S. 108 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I198 S. 108 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

109 Restrictions and conditions subject to which code applies

(1) Where the electronic communications code is applied in any person’s case by a direction given by OFCOM, that code is to have effect in that person’s case subject to such restrictions and conditions as may be contained in regulations made by the Secretary of State.

(2) In exercising his power to make regulations under this section it shall be the duty of the Secretary of State to have regard to each of the following—

(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; [F205(ba) the need to promote economic growth in the United Kingdom;]

(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;

[F206(da) the need to ensure that restrictions and conditions are objectively justifiable and proportionate to what they are intended to achieve;]

(e) the need to secure that a person in whose case the code is applied will be able to meet liabilities arising as a consequence of—

(i) the application of the code in his case; and (ii) any conduct of his in relation to the matters with which the code deals.

[F207[F208(2A) Subsection (2B) applies if the Secretary of State has complied with subsection (2)(b) in connection with any particular exercise of the power to make regulations under this section.]

(2B) The Secretary of State is to be treated as also having complied with any duty imposed in connection with that exercise of that power by any of the following—

section 11A(2) of the National Parks and Access to the Countryside Act 1949;

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section 85(1) of the Countryside and Rights of Way Act 2000; section 17A(1) of the Norfolk and Suffolk Broads Act 1988; section 14 of the National Parks (Scotland) Act 2000 (asp 10); Article 4(1) of the Nature Conservation and Amenity Lands (Northern Ireland) Order 1985 (S.I. 1985/170 (N.I. 1)).]

(3) The power of the Secretary of State to provide by regulations for the restrictions and conditions subject to which the electronic communications code has effect includes power to provide for restrictions and conditions which are framed by reference to any one or more of the following—

(a) the making of a determination in accordance with the regulations by a person specified in the regulations;

(b) the giving of an approval or consent by a person so specified; or (c) the opinion of any person.

(4) Before making any regulations under this section, the Secretary of State must consult—

(a) OFCOM; and (b) such other persons as he considers appropriate.

Textual Amendments F205 S. 109(2)(ba) inserted (25.4.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 9(1), 35(2) (with

s. 36(6)) F206 S. 109(2)(da) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 67 (with Sch. 3 para. 2) F207 S. 109(2A) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 7, 118(2) F208 S. 109(2A)(2B) inserted (25.4.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 9(2), 35(2)

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4 C22 S. 109(4) modified (25.4.2013) by Growth and Infrastructure Act 2013 (c. 27), ss. 9(4), 35(2)

Commencement Information I199 S. 109 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I200 S. 109 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

110 Enforcement of restrictions and conditions

(1) Where OFCOM determine that there are reasonable grounds for believing that a person in whose case the electronic communications code applies is contravening, or has contravened, a requirement imposed by virtue of any restrictions or conditions under section 109, they may give him a notification under this section.

(2) A notification under this section is one which— (a) sets out the determination made by OFCOM; (b) specifies the requirement and the contravention in respect of which that

determination has been made; F209...

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[F210(c) specifies the period during which the person notified has an opportunity to make representations;

(d) specifies the steps that OFCOM think should be taken by the person in order to—

(i) comply with the requirement; (ii) remedy the consequences of the contravention;

(e) specifies any penalty which OFCOM are minded to impose in accordance with section 110A; and

(f) where the contravention is serious, specifies any direction which OFCOM are minded to give under section 113(4).]

F211(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F211(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F211(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F211(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F211(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) A notification under this section— (a) may be given in respect of more than one contravention; and (b) if it is given in respect of a continuing contravention, may be given in respect

of any period during which the contravention has continued.

(9) Where a notification under this section has been given to a person in respect of a contravention of a requirement, OFCOM may give a further notification in respect of the same contravention of that requirement if, and only if—

(a) the contravention is one occurring after the time of the giving of the earlier notification;

(b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or

(c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

F212(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F209 Word in s. 110(2)(b) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 68(a) (with Sch. 3 paras. 2, 15) F210 S. 110(2)(c)-(f) substituted for s. 110(2)(c) (26.5.2011) by The Electronic Communications and

Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 68(b) (with Sch. 3 paras. 2, 15)

F211 S. 110(3)-(7) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 68(c) (with Sch. 3 paras. 2, 15)

F212 S. 110(10) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 68(c) (with Sch. 3 paras. 2, 15)

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Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I201 S. 110 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I202 S. 110 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F213110A.Penalties for contravention of code restrictions

(1) This section applies where a person is given a notification under section 110 which specifies a proposed penalty.

(2) Where the notification relates to more than one contravention, a separate penalty may be specified in respect of each contravention.

(3) Where the notification relates to a continuing contravention, no more than one penalty may be specified in respect of the period of contravention specified in the notification.

(4) But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a) the giving of a confirmation decision under section 111(4)(c) which requires immediate action; or

(b) the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(5) The amount of a penalty under subsection (4) is to be such amount not exceeding £100 per day as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed

(6) The amount of any other penalty specified in a notification under section 110 is to be such amount not exceeding £10,000 as OFCOM determine to be—

(a) appropriate, and (b) proportionate to the contravention in respect of which it is imposed.

(7) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (6).

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

Textual Amendments F213 S. 110A inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 69 (with Sch. 3 paras. 2, 15)

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Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

111 [F214Confirmation decision] for contravention of code restrictions

(1) This section applies where— (a) a person (“the notified provider”) has been given a notification under

section 110; (b) OFCOM have allowed the notified provider an opportunity of making

representations about the matters notified; and (c) the period allowed for the making of the representations has expired.

[F215(2) OFCOM may— (a) give the notified provider a decision (a “confirmation decision”) confirming

the imposition of requirements on the notified provider, or the giving of a direction to the notified provider, or both, in accordance with the notification under section 110; or

(b) notify the notified provider that they are satisfied with the representations and that no further action will be taken.

(3) OFCOM may not give a confirmation decision to the notified provider unless, after considering any representations, they are satisfied that the notified provider has, in one or more of the respects notified, been in contravention of a requirement specified in the notification under section 110.]

[F216(4) A confirmation decision— (a) must be given to the person without delay; (b) must include reasons for the decision; (c) may require immediate action by the person to comply with requirements of

a kind mentioned in section 110(2)(d), or may specify a period within which the person must comply with those requirements; and

(d) may require the person to pay— (i) the penalty specified in the notification under section 110(2)(e), or

(ii) such lesser penalty as OFCOM consider appropriate in the light of the person’s representations or steps taken by the person to comply with the condition or remedy the consequences of the contravention, and

may specify the period within which the penalty is to be paid.]

(5) It shall be the duty of a person to whom [F217a confirmation decision] has been given to comply with [F218any requirement imposed by it] .

(6) That duty 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.

[F219(7) A penalty imposed by a confirmation decision— (a) must be paid to OFCOM; and

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(b) if not paid within the period specified by them, is to be recoverable by them accordingly.]

Textual Amendments F214 Words in s. 111 heading substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 70(e) (with Sch. 3 paras. 2, 15) F215 S. 111(2)(3) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 70(a) (with Sch. 3 paras. 2, 15) F216 S. 111(4) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 70(b) (with Sch. 3 paras. 2, 15) F217 Words in s. 111(5) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 70(c)(i) (with Sch. 3 paras. 2, 15)

F218 Words in s. 111(5) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 70(c)(ii) (with Sch. 3 paras. 2, 15)

F219 S. 111(7) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 70(d) (with Sch. 3 paras. 2, 15)

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I203 S. 111 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I204 S. 111 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F220111A.Power to deal with urgent cases

(1) This section applies where OFCOM determine— (a) that they are entitled to give a notification under section 110 with respect to

a contravention by a person (“P”) of a requirement imposed by virtue of any restrictions or conditions under section 109;

(b) that there are reasonable grounds for suspecting that the case is an urgent case; and

(c) that the urgency of the case makes it appropriate for OFCOM to take action under this section.

(2) A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates an immediate risk of—

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

(b) serious economic or operational problems for persons (other than P) who are communications providers or persons who make associated facilities available; or

(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

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(3) OFCOM may, to the extent specified in subsection (4), give a direction suspending the application in P’s case of the electronic communications code if the electronic communications code has been applied to P by a direction under section 106.

(4) The extent of a suspension under subsection (3) must not go beyond the following applications of the code in that person’s case—

(a) its application for the purposes of electronic communications networks, or parts of such a network, which are not yet in existence at the time of the suspension;

(b) its application for the purposes of conduit systems, or parts of such systems, which are not yet in existence or not yet used for the purposes of electronic communications networks; and

(c) its application for other purposes in circumstances in which the provision of an electronic communications network, or part of such a network, would not have to cease if its application for those purposes were suspended.

(5) A direction under subsection (3), except so far as it otherwise provides, shall continue in force until such time (if any) as it is withdrawn by OFCOM.

(6) Subject to subsection (7), where the application of the electronic communications code is suspended in a person’s case, the person is not entitled to exercise any right conferred by or by virtue of the code.

(7) The suspension of the application of the electronic communications code in a person’s case does not, except so far as otherwise provided by a scheme contained in an order under section 117—

(a) affect (as between the original parties to it) any agreement entered into for the purposes of the code or any agreement having effect in accordance with it;

(b) affect anything done under the code before the suspension of its application; or (c) require the removal of, or prohibit the use of, any apparatus lawfully installed

on, in or over any premises before that suspension.

Textual Amendments F220 Ss. 111A, 111B inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 71 (with Sch. 3 paras. 2, 15)

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

111B. Confirmation of direction under section 111A

(1) As soon as reasonably practicable after giving a direction under section 111A(3), OFCOM must give the person to whom it is given—

(a) an opportunity to make representations to them about the grounds on which it was given and its effect; and

(b) an opportunity to propose steps to remedy the situation.

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(2) As soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—

(a) whether the contravention providing the grounds for the giving of the direction did occur; and

(b) whether the circumstances made it an urgent case justifying the giving of the direction.

(3) The period of 3 months mentioned in subsection (2) may be extended by up to 3 months if OFCOM—

(a) require additional time to consider representations received; or (b) decide that it is necessary to obtain additional information from the person in

order to make a determination under subsection (2).

(4) If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

(5) If not, they must exercise their power to revoke it.

(6) As soon as reasonably practicable after determining whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.]

Textual Amendments F220 Ss. 111A, 111B inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 71 (with Sch. 3 paras. 2, 15)

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

F221112 Penalties for contravention of code restrictions

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F221 S. 112 omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 72 (with Sch. 3 paras. 2, 15)

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I205 S. 112 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I206 S. 112 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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113 Suspension of application of code

(1) OFCOM may suspend the application of the electronic communications code in any person’s case if they are satisfied—

(a) that he is or has been in [F222serious or repeated] contravention of requirements to pay administrative charges fixed under section 38 (whether in respect of the whole or a part of the charges);

[F223(aa) that, in the case of a single serious contravention, a notification has been given to the contravening provider under section 40 and the period for making representations under that section has expired;]

(b) that [F224, in the case of a repeated contravention] the bringing of proceedings for the recovery of the amounts outstanding has failed to secure complete compliance by the contravening provider with the requirements to pay the charges fixed in his case, or has no reasonable prospect of securing such compliance;

(c) that [F225, in the case of a repeated contravention] an attempt, by the imposition of penalties under section 41, to secure such compliance has failed; and

[F226(d) that the suspension of the application of the code is appropriate and proportionate to the contravention.]

(2) OFCOM may, to the extent specified in subsection (3), suspend the application in that person’s case of the electronic communications code if—

(a) the electronic communications code has been applied by a direction under section 106 in any person’s case; and

(b) OFCOM give a direction under section 42, 100 [F227(including that section as applied by section 105D)] , 132 or 140 for the suspension or restriction of that person’s entitlement to provide an electronic communications network, or a part of such a network.

(3) The extent, in any person’s case, of a suspension under subsection (2) must not go beyond the application of the code for the purposes of so much of an electronic communications network as that person is prohibited from providing by virtue of the suspension or restriction of his entitlement to provide such a network, or part of a network.

(4) OFCOM may, to the extent specified in subsection (5), suspend the application in that person’s case of the electronic communications code if—

(a) the electronic communications code has been applied by a direction under section 106 in any person’s case; and

(b) that person is a person in whose case there have been [F228repeated or serious] contraventions of requirements imposed by virtue of any restrictions or conditions under section 109.

(5) The extent, in any person’s case, of a suspension under subsection (4) must not go beyond the following applications of the code in his case—

(a) its application for the purposes of electronic communications networks, or parts of such a network, which are not yet in existence at the time of the suspension;

(b) its application for the purposes of conduit systems, or parts of such systems, which are not yet in existence or not yet used for the purposes of electronic communications networks; and

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(c) its application for other purposes in circumstances in which the provision of an electronic communications network, or part of such a network, would not have to cease if its application for those purposes were suspended.

(6) A suspension under this section of the application of the code in any person’s case must be by a further direction given to that person by OFCOM under section 106.

(7) The statement required by section 107(8) to be included, in the case of a direction for the purposes of this section, in the statement of OFCOM’s proposal is a statement of their proposal to suspend the application of the code.

(8) A suspension of the application of the electronic communications code in any person’s case—

(a) shall cease to have effect if the suspension is under subsection (2) and the network suspension or restriction ceases to have effect; but

(b) subject to that shall continue in force until such time (if any) as it is withdrawn by OFCOM.

(9) In subsection (8) the reference to the network suspension or restriction, in relation to a suspension of the application of the electronic communications code, is a reference to the suspension or restriction of an entitlement to provide an electronic communications network, or part of such a network, which is the suspension or restriction by reference to which the application of the code was suspended under subsection (2).

(10) Subject to subsection (11), where the application of the electronic communications code is suspended in a person’s case, he shall not, while it is so suspended, be entitled to exercise any right conferred on him by or by virtue of the code.

(11) The suspension, in a person’s case, of the application of the electronic communications code does not, except so far as otherwise provided by a scheme contained in an order under section 117—

(a) affect (as between the original parties to it) any agreement entered into for the purposes of the code or any agreement having effect in accordance with it;

(b) affect anything done under the code before the suspension of its application; or (c) require the removal of, or prohibit the use of, any apparatus lawfully installed

on, in or over any premises before that suspension.

(12) Subsection (9) of section 42 applies for the purposes of subsection (1) as it applies for the purposes of that section.

[F229(13) For the purposes of subsection (4) there are repeated contraventions by a person of conditions or restrictions under section 109 if—

(a) in the case of a previous notification given to the person under section 110, OFCOM have given a confirmation decision to the person under section 111(2);

(b) in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of a condition or restriction under section 109; and

(c) the previous confirmation decision and the subsequent ones all relate to contraventions of the same condition or restriction (whether the same contravention or different contraventions).]

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Textual Amendments F222 Words in s. 113(1)(a) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 73(a)(i) (with Sch. 3 paras. 2, 15)

F223 S. 113(1)(aa) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 73(a)(ii) (with Sch. 3 paras. 2, 15)

F224 Words in s. 113(1)(b) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 73(a)(iii) (with Sch. 3 paras. 2, 15)

F225 Words in s. 113(1)(c) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 73(a)(iii) (with Sch. 3 paras. 2, 15)

F226 S. 113(1)(d) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 73(a)(iv) (with Sch. 3 paras. 2, 15)

F227 Words in s. 113(2)(b) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 73(b) (with Sch. 3 paras. 2, 15)

F228 Words in s. 113(4)(b) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 73(c) (with Sch. 3 paras. 2, 15)

F229 S. 113(13) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 73(d) (with Sch. 3 paras. 2, 15)

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I207 S. 113 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I208 S. 113 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

114 Procedure for directions under s. 113

(1) Except in an urgent case [F230, or a case of a single serious contravention,] , OFCOM are not to give a direction under section 113(4) suspending the application of the electronic communications code in the case of any person (“the operator”) unless they have—

(a) notified the operator of the proposed suspension and of the steps (if any) that they are proposing to take under section 117;

(b) provided him with an opportunity of making representations about the proposals and of proposing steps for remedying the situation that has given rise to the proposed suspension; and

(c) considered every representation and proposal made to them during the period allowed by them for the operator to take advantage of that opportunity.

[F231(2) That period is such reasonable period as OFCOM may specify, beginning with the day on which the notification is given.]

(3) As soon as practicable after giving a direction under section 113 in an urgent case, OFCOM must provide the operator with an opportunity of—

(a) making representations about the effect of the direction and of any steps taken under section 117 in connection with the suspension; and

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(b) proposing steps for remedying the situation that has given rise to the situation.

[F232(3A) As soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—

(a) whether the contravention providing the grounds for the giving of the direction did occur; and

(b) whether the circumstances made it an urgent case justifying the giving of the direction.

(3B) The period of 3 months mentioned in subsection (3A) may be extended by up to 3 months if OFCOM—

(a) require additional time to consider representations received; or (b) decide that it is necessary to obtain additional information from the person in

order to make a determination under subsection (3A).

(3C) If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

(3D) If not, they must revoke it.]

(4) A case is an urgent case for the purposes of this section if OFCOM— (a) consider that it would be inappropriate, because the circumstances appearing

to OFCOM to require the suspension fall within subsection (5), to allow time, before giving a direction under section 113, for the making and consideration of representations; and

(b) decide for that reason to act in accordance with subsection (3), instead of subsection (1).

(5) Circumstances fall within this subsection if they have resulted in, or create an immediate risk of—

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

(b) serious economic or operational problems for persons (apart from the operator) who are communications providers or persons who make associated facilities available; or

(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

Textual Amendments F230 Words in s. 114(1) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 74(a) (with Sch. 3 paras. 2, 15) F231 S. 114(2) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 74(b) (with Sch. 3 paras. 2, 15) F232 S. 114(3A)-(3D) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 74(c) (with Sch. 3 paras. 2, 15)

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

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Commencement Information I209 S. 114 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I210 S. 114 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

115 Modification and revocation of application of code

(1) OFCOM may at any time modify the terms on which, by virtue of section 106(5), the code is applied in a person’s case.

(2) OFCOM may revoke a direction applying the electronic communications code in a person’s case if an application for the revocation has been made by that person.

(3) If at any time it appears to OFCOM that a person in whose case the electronic communications code has been applied is not the provider of an electronic communications network or conduit system for the purposes of which the code applies, OFCOM may revoke the direction applying the code in his case.

(4) A modification or revocation under this section shall be by a further direction under section 106 to the person in whose case the electronic communications code has been applied by the direction being modified or revoked.

[F233(4A) A modification under this section may not be made unless the modification is— (a) objectively justifiable, and (b) proportionate to what it is intended to achieve.]

(5) The matters required by section 107(8) to be included, in the case of a direction for the purposes of this section, in the statement of OFCOM’s proposal are whichever of the following is applicable—

(a) a statement of their proposal to modify terms imposed under section 106(5); (b) a statement of their proposal to revoke the direction applying the code.

Textual Amendments F233 S. 115(4A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 75 (with Sch. 3 para. 2)

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I211 S. 115 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I212 S. 115 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

116 Notification of cessation by person to whom code applies

(1) This section applies where, by virtue of a direction under section 106, the electronic communications code applies in any person’s case for the purposes of the provision by him of—

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(a) an electronic communications network which is not of a description designated for the purposes of section 33; or

(b) such a system of conduits as is mentioned in section 106(4)(b).

(2) If that person ceases to provide that network or conduit system, he must notify OFCOM of that fact.

(3) A notification under this section must be given within such period and in such manner as may be required by OFCOM.

(4) OFCOM may impose a penalty on a person who fails to comply with a requirement imposed by or under this section.

(5) The amount of a penalty imposed on a person under this section is to be such amount not exceeding £1,000 as OFCOM may determine to be both—

(a) appropriate; and (b) proportionate to the matter in respect of which it is imposed.

(6) Where OFCOM impose a penalty on a person under this section, they shall— (a) within one week of making their decision to impose the penalty, notify that

person of that decision and of their reasons for that decision; and (b) in that notification, fix a reasonable period after it is given as the period within

which the penalty is to be paid.

(7) A penalty imposed under this section— (a) must be paid to OFCOM; and (b) if not paid within the period fixed by them, is to be recoverable by them

accordingly.

(8) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (5).

(9) No order is to be made containing provision authorised by subsection (8) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I213 S. 116 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I214 S. 116 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

117 Transitional schemes on cessation of application of code

(1) Where it appears to OFCOM— (a) that the electronic communications code has ceased or is to cease to apply, to

any extent, in the case of any person (“the former operator”),

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(b) that it has ceased or will cease so to apply for either of the reasons specified in subsection (2), and

(c) that it is appropriate for transitional provision to be made in connection with it ceasing to apply in the case of the former operator,

they may by order make a scheme containing any such transitional provision as they think fit in that case.

(2) Those reasons are— (a) the suspension under section 113 of the application of the code in the former

operator’s case; (b) the revocation or modification under section 115 of the direction applying the

code in his case.

(3) A scheme contained in an order under this section may, in particular— (a) impose any one or more obligations falling within subsection (4) on the former

operator; (b) provide for those obligations to be enforceable in such manner (otherwise than

by criminal penalties) and by such persons as may be specified in the scheme; (c) authorise the retention of apparatus on any land pending its subsequent

use for the purposes of an electronic communications network, electronic communications service or conduit system to be provided by any person;

(d) provide for the transfer to such persons as may be specified in, or determined in accordance with, the scheme of any rights or liabilities arising out of any agreement or other obligation entered into or incurred in pursuance of the code by the former operator;

(e) provide, for the purposes of any provision contained in the scheme by virtue of any of the preceding paragraphs, for such questions arising under the scheme as are specified in the scheme, or are of a description so specified, to be referred to, and determined by, OFCOM.

(4) The obligations referred to in subsection (3)(a) are— (a) an obligation to remove anything installed in pursuance of any right conferred

by or in accordance with the code; (b) an obligation to restore land to its condition before anything was done in

pursuance of any such right; or (c) an obligation to pay the expenses of any such removal or restoration.

(5) Sections 110 to 112 apply in relation to the requirements imposed by virtue of a scheme contained in an order under this section as they apply in relation to a requirement imposed by virtue of restrictions or conditions under section 109.

(6) Section 403 applies to the power of OFCOM to make an order under this section.

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I215 S. 117 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3))

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I216 S. 117 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

118 Compulsory acquisition of land etc.

Schedule 4 (which provides for compulsory acquisition of land by the provider of an electronic communications network in whose case the electronic communications code applies and for entry on land by persons nominated by such a provider) shall have effect.

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I217 S. 118 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I218 S. 118 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

119 Power to give assistance in relation to certain proceedings

(1) This section applies where any actual or prospective party to any proceedings falling within subsection (2) (other than the operator, within the meaning of the electronic communications code) applies to OFCOM for assistance under this section in relation to those proceedings.

(2) The proceedings falling within this subsection are any actual or prospective proceedings in which there falls to be determined any question arising under, or in connection with—

(a) the electronic communications code as applied in any person’s case by a direction under section 106; or

(b) any restriction or condition subject to which that code applies.

(3) OFCOM may grant the application if, on any one or more of the following grounds, they think fit to do so—

(a) on the ground that the case raises a question of principle; (b) on the ground that it is unreasonable, having regard to the complexity of the

case or to any other matter, to expect the applicant to deal with the case without assistance under this section;

(c) by reason of any other special consideration.

(4) Assistance by OFCOM under this section may include— (a) giving advice or arranging for the giving of advice by a solicitor or counsel; (b) procuring or attempting to procure the settlement of the matter in dispute; (c) arranging for the giving of any assistance usually given by a solicitor or

counsel— (i) in the steps preliminary or incidental to proceedings; or

(ii) in arriving at, or giving effect to, a compromise to avoid proceedings or to bring them to an end;

(d) arranging for representation by a solicitor or counsel;

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(e) arranging for the giving of any other assistance by a solicitor or counsel; (f) any other form of assistance which OFCOM consider appropriate.

(5) Nothing in subsection (4)(d) shall be taken to affect the law and practice regulating the descriptions of persons who may appear in, conduct or defend any proceedings, or who may address the court in any proceedings.

(6) In so far as expenses are incurred by OFCOM in providing the applicant with assistance under this section, the recovery of those expenses (as taxed or assessed in such manner as may be prescribed by rules of court) shall constitute a first charge for the benefit of OFCOM—

(a) on any costs or expenses which (whether by virtue of a judgment or order of a court, or an agreement or otherwise) are payable to the applicant by any other person in respect of the matter in connection with which the assistance is given; and

(b) so far as relates to costs or expenses, on the applicant’s rights under a compromise or settlement arrived at in connection with that matter to avoid proceedings, or to bring them to an end.

(7) A charge conferred by subsection (6) is subject to— (a) any charge imposed by [F234section 25 of the Legal Aid, Sentencing and

Punishment of Offenders Act 2012] and any provision made by or under Part 1 of that Act for the payment of any sum to the [F235Lord Chancellor] ;

(b) any charge or obligation for payment in priority to other debts under the Legal Aid (Scotland) Act 1986 (c. 47); or

(c) any charge under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (S.I. 1981/228 (N.I. 8)).

Textual Amendments F234 Words in s. 119(7)(a) substituted (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders

Act 2012 (c. 10), s. 151(1), Sch. 5 para. 61(a); S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

F235 Words in s. 119(7)(a) substituted (1.4.2013) by Legal Aid, Sentencing and Punishment of Offenders Act 2012 (c. 10), s. 151(1), Sch. 5 para. 61(b); S.I. 2013/453, art. 3(h) (with savings and transitional provisions in S.I. 2013/534, art. 6)

Modifications etc. (not altering text) C21 Ss. 106-119 modified (coming into force in accordance with reg. 1 of the amending S.I.) by The

Electronic Communications Code (Transitional Provisions) Regulations 2017 (S.I. 2017/1008), reg. 4

Commencement Information I219 S. 119 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I220 S. 119 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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Regulation of premium rate services

120 Conditions regulating premium rate services

(1) OFCOM shall have the power, for the purpose of regulating the provision, content, promotion and marketing of premium rate services, to set conditions under this section that bind the persons to whom they are applied.

(2) Conditions under this section may be applied either— (a) generally to every person who provides a premium rate service; or (b) to every person who is of a specified description of such persons, or who

provides a specified description of such services.

(3) The only provision that may be made by conditions under this section is provision requiring the person to whom the condition applies to comply, to the extent required by the condition, with—

[F236(za) the provisions of an approved code;] (a) directions given in accordance with an approved code by the enforcement

authority and for the purpose of enforcing its provisions; and (b) if there is no such code, the provisions of the order for the time being in force

under section 122.

(4) The power to set a condition under this section includes power to modify or revoke the conditions for the time being in force under this section.

(5) [F237Section 47 applies] to the setting, modification and revocation of a condition under this section as [F237it applies] to the setting, modification and revocation of a condition under section 45.

F238(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(7) A service is a premium rate service for the purposes of this Chapter if— (a) it is a service falling within subsection (8); (b) there is a charge for the provision of the service; (c) the charge is required to be paid to a person providing an electronic

communications service by means of which the service in question is provided; and

(d) that charge is imposed in the form of a charge made by that person for the use of the electronic communications service.

(8) A service falls within this subsection if its provision consists in— (a) the provision of the contents of communications transmitted by means of an

electronic communications network; or (b) allowing the user of an electronic communications service to make use, by the

making of a transmission by means of that service, of a facility made available to the users of the electronic communications service.

(9) For the purposes of this Chapter a person provides a premium rate service (“the relevant service”) if—

(a) he provides the contents of the relevant service; (b) he exercises editorial control over the contents of the relevant service; (c) he is a person who packages together the contents of the relevant service for

the purpose of facilitating its provision;

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(d) he makes available a facility comprised in the relevant service; or (e) he falls within subsection (10), (11) or (12).

(10) A person falls within this subsection if— (a) he is the provider of an electronic communications service used for the

provision of the relevant service; and (b) under arrangements made with a person who is a provider of the relevant

service falling within subsection (9)(a) to (d), he is entitled to retain some or all of the charges received by him in respect of the provision of the relevant service or of the use of his electronic communications service for the purposes of the relevant service.

(11) A person falls within this subsection if— (a) he is the provider of an electronic communications network used for the

provision of the relevant service; and (b) an agreement relating to the use of the network for the provision of that service

subsists between the provider of the network and a person who is a provider of the relevant service falling within subsection (9)(a) to (d).

(12) A person falls within this subsection if— (a) he is the provider of an electronic communications network used for the

provision of the relevant service; and (b) the use of that network for the provision of premium rate services, or of

services that include or may include premium rate services, is authorised by an agreement subsisting between that person and either an intermediary service provider or a person who is a provider of the relevant service by virtue of subsection (10) or (11).

(13) Where one or more persons are employed or engaged under the direction of another to do any of the things mentioned in subsection (9)(a) to (d), only that other person shall be a provider of the relevant service for the purposes of this Chapter.

(14) References in this section to a facility include, in particular, references to— (a) a facility for making a payment for goods or services; (b) a facility for entering a competition or claiming a prize; and (c) a facility for registering a vote or recording a preference.

(15) In this section— “approved code” means a code for the time being approved under

section 121; “enforcement authority”, in relation to such a code, means the person who

under the code has the function of enforcing it; and “intermediary service provider” means a person who—

(a) provides an electronic communications service used for the provision of the relevant service or an electronic communications network so used; and

(b) is a party to an agreement with— (i) a provider of the relevant service falling within subsection (9)(a)

to (d), or (ii) another intermediary service provider,

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which relates to the use of that electronic communications service or network for the provision of premium rate services, or of services that include or may include premium rate services.

Textual Amendments F236 S. 120(3)(za) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), ss. 80(1), 100(5); S.I.

2015/1630, art. 3(e) (with art. 7) F237 Words in s. 120(5) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 76(a) (with Sch. 3 paras. 2, 16) F238 S. 120(6) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 76(b) (with Sch. 3 paras. 2, 16)

Commencement Information I221 S. 120 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F239120A.Procedure for setting, modifying and revoking premium rate services conditions

(1) The way in which conditions are to be set or modified under section 120 is by the publication of a notification setting out the conditions or modifications.

(2) The way in which such a condition is to be revoked is by the publication of a notification stating that the condition is revoked.

(3) Before setting such conditions, or modifying or revoking a condition so set, OFCOM must publish a notification—

(a) stating that they are proposing to set, modify or revoke the conditions that are specified in the notification;

(b) setting out the effect of those conditions, modifications or revocations; (c) giving their reasons for making the proposal; and (d) specifying the period within which representations may be made to OFCOM

about their proposal.

(3) That period must end no less than one month after the day of the publication of the notification.

(4) But where OFCOM are satisfied that there are exceptional circumstances justifying the use of a shorter period, the period specified as the period for making representations may be whatever shorter period OFCOM consider reasonable in those circumstances.

(5) OFCOM may give effect to the proposal, with any modifications that appear to OFCOM to be appropriate, after—

(a) considering every representation about the proposal made to them during the period specified in the notification; and

(b) having regard to every international obligation of the United Kingdom (if any) which has been notified to them for the purposes of this paragraph by the Secretary of State.

(6) The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the contents of the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by its contents.

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(7) OFCOM must send a copy of every notification published under this section to the Secretary of State.]

Textual Amendments F239 S. 120A inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 77 (with Sch. 3 paras. 2, 16)

121 Approval of code for premium rate services

(1) If it appears to OFCOM— (a) that a code has been made by any person for regulating the provision and

contents of premium rate services, and the facilities made available in the provision of such services;

(b) that the code contains provision for regulating, to such extent (if any) as they think fit, the arrangements made by the providers of premium rate services for promoting and marketing those services; and

(c) that it would be appropriate for them to approve that code for the purposes of section 120,

they may approve that code for those purposes.

(2) OFCOM are not to approve a code for those purposes unless they are satisfied— (a) that there is a person who, under the code, has the function of administering

and enforcing it; and (b) that that person is sufficiently independent of the providers of premium rate

services; (c) that adequate arrangements are in force for funding the activities of that person

in relation to the code; (d) that the provisions of the code are objectively justifiable in relation to the

services to which it relates; (e) that those provisions are not such as to discriminate unduly against particular

persons or against a particular description of persons; (f) that those provisions are proportionate to what they are intended to achieve;

and (g) that, in relation to what those provisions are intended to achieve, they are

transparent.

(3) OFCOM are not for those purposes to approve so much of a code as imposes an obligation as respects a premium rate service on a person who is a provider of the service by virtue only of section 120(12) (“the relevant provider”) unless they are satisfied that the obligation—

(a) arises only if there is no one who is a provider of the service otherwise than by virtue of section 120(12) against whom it is practicable to take action;

(b) arises only after a notice identifying the service and setting out respects in which requirements of the code have been contravened in relation to it has been given to the relevant provider by the person responsible for enforcing the code; and

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(c) is confined to an obligation to secure that electronic communications networks provided by the relevant provider are not used for making the service available to persons who are in the United Kingdom.

(4) The provision that may be contained in a code and approved under this section includes, in particular, provision about the pricing of premium rate services and provision for the enforcement of the code.

(5) The provision for the enforcement of a code that may be approved under this section includes—

(a) provision for the payment, to a person specified in the code, of a penalty not exceeding the maximum penalty for the time being specified in section 123(2);

[F240(aa) provision that applies where there is or has been more than one contravention of the code or directions given in accordance with it by a person and which enables—

(i) a single penalty (which does not exceed that maximum penalty) to be imposed on the person in respect of all of those contraventions, or

(ii) separate penalties (each of which does not exceed that maximum penalty) to be imposed on the person in respect of each of those contraventions,

according to whether the person imposing the penalty determines that a single penalty or separate penalties are appropriate and proportionate to those contraventions;]

(b) provision requiring a provider of a premium rate service to secure that the provision of the service is suspended or otherwise ceases or is restricted in any respect;

(c) provision for the imposition on a person, in respect of a contravention of the code, of a temporary or permanent prohibition or restriction on his working in connection with the provision of premium rate services or, in the case of a body corporate, on its providing such services or on its carrying on other activities in connection with their provision.

(6) OFCOM may, at any time, for the purposes of section 120— (a) approve modifications that have been made to an approved code; or (b) withdraw their approval from an approved code.

(7) Where OFCOM give or withdraw an approval for the purposes of section 120, they must give notification of their approval or of its withdrawal.

(8) The notification must be published in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the approval or withdrawal.

Textual Amendments F240 S. 121(5)(aa) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), ss. 80(2), 100(5); S.I.

2015/1630, art. 3(e) (with art. 7)

Commencement Information I222 S. 121 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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122 Orders by OFCOM in the absence of a code under s. 121

(1) OFCOM may make an order under this section if, at any time, they consider that there is no code in force to which they think it would be appropriate to give, or to continue to give, their approval under section 121.

(2) An order under this section may make such of the following provisions as OFCOM think fit—

(a) provision imposing requirements with respect to the provision and contents of premium rate services, and with respect to the facilities made available in the provision of such services (including provision about pricing);

(b) provision imposing requirements with respect to the arrangements made by the providers of premium rate services for the promotion and marketing of those services;

(c) provision for the enforcement of requirements imposed by virtue of paragraph (a) or (b);

(d) provision making other arrangements for the purposes of those requirements.

(3) The power to make provision by an order under this section includes, in particular— (a) power to establish a body corporate with the capacity to make its own rules

and to establish its own procedures; (b) power to determine the jurisdiction of a body established by such an order or,

for the purposes of the order, of any other person; (c) power to confer jurisdiction with respect to any matter on OFCOM

themselves; (d) power to provide for a person on whom jurisdiction is conferred by the

arrangements to make awards of compensation, to direct the reimbursement of costs or expenses, or to do both;

(e) power to provide for such a person to enforce, or to participate in the enforcement of, any awards or directions made under such an order;

(f) power to make provision falling within section 121(5)(c) for the enforcement of the provisions of the order; and

(g) power to make such other provision as OFCOM think fit for the enforcement of such awards and directions.

(4) An order under this section may require such providers of premium rate services as may be determined by or under the order to make payments to OFCOM in respect of expenditure incurred by OFCOM in connection with—

(a) the establishment and maintenance, in accordance with such an order, of any body corporate or procedure; or

(b) the making of other arrangements for the purposes of the requirements of such an order.

(5) An order under this section is not to impose an obligation as respects a premium rate service on a person who is a provider of the service by virtue only of section 120(12) (“the relevant provider”) unless the obligation—

(a) arises only if there is no one who is a provider of the service otherwise than by virtue of section 120(12) against whom it is practicable to take action;

(b) arises only after a notice identifying the service and setting out respects in which requirements of the order have been contravened in relation to it has been given to the relevant provider by OFCOM; and

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(c) is confined to an obligation to secure that electronic communications networks provided by the relevant provider are not used for making the service available to persons who are in the United Kingdom.

(6) The consent of the Secretary of State is required for the making by OFCOM of an order under this section.

(7) Section 403 applies to the power of OFCOM to make an order under this section.

(8) A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Commencement Information I223 S. 122 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

123 Enforcement of s. 120 conditions

(1) Sections 94 to 96 apply in relation to a contravention of conditions set under section 120 as they apply in relation to a contravention of a condition set under section 45.

[F241(1A) Subsection (1B) applies where a notification under section 94 as applied by this section relates to more than one contravention of—

(a) a code approved under section 121, (b) directions given in accordance with such a code, or (c) an order under section 122.

(1B) Section 96(3) as applied by this section enables OFCOM to impose— (a) a single penalty in respect of all of those contraventions, or (b) separate penalties in respect of each of those contraventions,

according to whether OFCOM determine that a single penalty or separate penalties are appropriate and proportionate to those contraventions.]

(2) The amount of [F242each penalty] imposed under section 96 as applied by this section is to be such amount not exceeding [F243£250,000] as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.

(3) In making that determination OFCOM must have regard to— (a) any representations made to them by the notified provider; (b) any steps taken by him towards complying with the conditions contraventions

of which have been notified to him under section 94 (as applied); and (c) any steps taken by him for remedying the consequences of those

contraventions.

(4) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (2).

(5) No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

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Textual Amendments F241 S. 123(1A)(1B) inserted (1.10.2015) by Consumer Rights Act 2015 (c. 15), ss. 80(4), 100(5); S.I.

2015/1630, art. 3(e) (with art. 7) F242 Words in s. 123(2) substituted (1.10.2015) by Consumer Rights Act 2015 (c. 15), ss. 80(5), 100(5); S.I.

2015/1630, art. 3(e) (with art. 7) F243 Word in s. 123(2) substituted (30.12.2005) by Communications Act 2003 (Maximum Penalty and

Disclosure of Information) Order 2005 (S.I. 2005/3469), arts. 1(1), 2 (with art. 2(2))

Commencement Information I224 S. 123 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

124 Suspending service provision for contraventions of s. 120 conditions

(1) OFCOM may give a direction under this section to a person who is a communications provider (“the contravening provider”) if they are satisfied—

(a) that he is or has been in serious and repeated contravention of conditions set under section 120;

(b) that an attempt, by the imposition of penalties or the giving of enforcement notifications under section 95 (as applied by section 123) or both, to secure compliance with the contravened conditions has failed;

(c) that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions; and

(d) that the giving of the direction is required for reasons of public policy.

(2) OFCOM may also give a direction under this section to a person who is a communications provider (“the contravening provider”) if they are satisfied—

(a) that he is, or has been, in contravention of conditions set under section 120 in respect of a premium rate service;

(b) that the circumstances of the contravention make it appropriate for OFCOM to suspend or restrict the provision of premium rate services provided by the contravening provider without the conditions set out in subsection (1) being satisfied; and

(c) that in those circumstances the giving of the direction is urgently required for reasons of public policy.

(3) A direction under this section is— (a) a direction to the contravening provider to secure the suspension of the

provision of premium rate services provided by him; or (b) a direction requiring him to secure compliance with restrictions, set out in the

direction, on the provision of such services.

(4) A direction under this section— (a) must specify the services to which it relates; and (b) except so far as it otherwise provides, takes effect for an indefinite period

beginning with the time at which it is notified to the person to whom it is given.

(5) A direction under this section— (a) in providing for the effect of a suspension or restriction to be postponed, may

provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and

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(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

(6) Those conditions may include a condition requiring the making of payments— (a) by way of compensation for loss or damage suffered by the contravening

provider’s customers as a result of the direction; or (b) in respect of annoyance, inconvenience or anxiety to which they have been

put in consequence of the direction.

(7) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction under this section or modify its conditions—

(a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such services as they may determine.

(8) Sections 102 and 103 apply in the case of a direction under this section as they apply in the case of a direction under section 100, but as if references in section 103(1) to an electronic communications network or electronic communications service were references to a premium rate service.

(9) For the purposes of this section there are repeated contraventions by a person of conditions set under section 120 to the extent that—

(a) in the case of a previous notification given to that person under section section 94 (as applied by section 123), OFCOM have determined for the purposes of section 95(2) or 96(2) (as so applied) that such a contravention did occur; and

(b) in the period of twelve months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of a condition set under section 120.

(10) For the purposes of this section the seriousness of repeated contraventions of conditions set under section 120 has to be determined by reference to the seriousness of the contraventions of the approved code or order by reference to which the conditions have effect.

Commencement Information I225 S. 124 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F244Online infringement of copyright: obligations of internet service providers

Textual Amendments F244 S. 124A and cross-heading inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 3, 47(1)

124A Obligation to notify subscribers of copyright infringement reports

(1) This section applies if it appears to a copyright owner that—

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(a) a subscriber to an internet access service has infringed the owner's copyright by means of the service; or

(b) a subscriber to an internet access service has allowed another person to use the service, and that other person has infringed the owner's copyright by means of the service.

(2) The owner may make a copyright infringement report to the internet service provider who provided the internet access service if a code in force under section 124C or 124D (an “initial obligations code”) allows the owner to do so.

(3) A “copyright infringement report” is a report that— (a) states that there appears to have been an infringement of the owner's copyright; (b) includes a description of the apparent infringement; (c) includes evidence of the apparent infringement that shows the subscriber's IP

address and the time at which the evidence was gathered; (d) is sent to the internet service provider within the period of 1 month beginning

with the day on which the evidence was gathered; and (e) complies with any other requirement of the initial obligations code.

(4) An internet service provider who receives a copyright infringement report must notify the subscriber of the report if the initial obligations code requires the provider to do so.

(5) A notification under subsection (4) must be sent to the subscriber within the period of 1 month beginning with the day on which the provider receives the report.

(6) A notification under subsection (4) must include— (a) a statement that the notification is sent under this section in response to a

copyright infringement report; (b) the name of the copyright owner who made the report; (c) a description of the apparent infringement; (d) evidence of the apparent infringement that shows the subscriber's IP address

and the time at which the evidence was gathered; (e) information about subscriber appeals and the grounds on which they may be

made; (f) information about copyright and its purpose; (g) advice, or information enabling the subscriber to obtain advice, about how to

obtain lawful access to copyright works; (h) advice, or information enabling the subscriber to obtain advice, about

steps that a subscriber can take to protect an internet access service from unauthorised use; and

(i) anything else that the initial obligations code requires the notification to include.

(7) For the purposes of subsection (6)(h) the internet service provider must take into account the suitability of different protection for subscribers in different circumstances.

(8) The things that may be required under subsection (6)(i), whether in general or in a particular case, include in particular—

(a) a statement that information about the apparent infringement may be kept by the internet service provider;

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(b) a statement that the copyright owner may require the provider to disclose which copyright infringement reports made by the owner to the provider relate to the subscriber;

(c) a statement that, following such a disclosure, the copyright owner may apply to a court to learn the subscriber's identity and may bring proceedings against the subscriber for copyright infringement; and

(d) where the requirement for the provider to send the notification arises partly because of a report that has already been the subject of a notification under subsection (4), a statement that the number of copyright infringement reports relating to the subscriber may be taken into account for the purposes of any technical measures.

(9) In this section “notify”, in relation to a subscriber, means send a notification to the electronic or postal address held by the internet service provider for the subscriber (and sections 394 to 396 do not apply).]

[F245124BObligation to provide copyright infringement lists to copyright owners

(1) An internet service provider must provide a copyright owner with a copyright infringement list for a period if—

(a) the owner requests the list for that period; and (b) an initial obligations code requires the internet service provider to provide it.

(2) A “copyright infringement list” is a list that— (a) sets out, in relation to each relevant subscriber, which of the copyright

infringement reports made by the owner to the provider relate to the subscriber, but

(b) does not enable any subscriber to be identified.

(3) A subscriber is a “relevant subscriber” in relation to a copyright owner and an internet service provider if copyright infringement reports made by the owner to the provider in relation to the subscriber have reached the threshold set in the initial obligations code.]

Textual Amendments F245 S. 124B inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 4, 47(1)

[F246124CApproval of code about the initial obligations

(1) The obligations of internet service providers under sections 124A and 124B are the “initial obligations”.

(2) If it appears to OFCOM— (a) that a code has been made by any person for the purpose of regulating the

initial obligations; and (b) that it would be appropriate for them to approve the code for that purpose,

they may by order approve it, with effect from the date given in the order.

(3) The provision that may be contained in a code and approved under this section includes provision that—

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(a) specifies conditions that must be met for rights and obligations under the copyright infringement provisions or the code to apply in a particular case;

(b) requires copyright owners or internet service providers to provide any information or assistance that is reasonably required to determine whether a condition under paragraph (a) is met.

(4) The provision mentioned in subsection (3)(a) may, in particular, specify that a right or obligation does not apply in relation to a copyright owner unless the owner has made arrangements with an internet service provider regarding—

(a) the number of copyright infringement reports that the owner may make to the provider within a particular period; and

(b) payment in advance of a contribution towards meeting costs incurred by the provider.

(5) The provision mentioned in subsection (3)(a) may also, in particular, provide that— (a) except as provided by the code, rights and obligations do not apply in relation

to an internet service provider unless the number of copyright infringement reports the provider receives within a particular period reaches a threshold set in the code; and

(b) if the threshold is reached, rights or obligations apply with effect from the date when it is reached or from a later time.

(6) OFCOM must not approve a code under this section unless satisfied that it meets the criteria set out in section 124E.

(7) Not more than one approved code may have effect at a time.

(8) OFCOM must keep an approved code under review.

(9) OFCOM may by order, at any time, for the purpose mentioned in subsection (2)— (a) approve modifications that have been made to an approved code; or (b) withdraw their approval from an approved code,

with effect from the date given in the order, and must do so if the code ceases to meet the criteria set out in section 124E.

(10) The consent of the Secretary of State is required for the approval of a code or the modification of an approved code.

(11) An order made by OFCOM under this section approving a code or modification must set out the code or modification.

(12) Section 403 applies to the power of OFCOM to make an order under this section.

(13) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments F246 S. 124C inserted (8.4.2010) by Digital Economy Act 2010 (c. 24), ss. 5, 47(2)(a)

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[F247124DInitial obligations code by OFCOM in the absence of an approved code

(1) For any period when sections 124A and 124B are in force but for which there is no approved initial obligations code under section 124C, OFCOM must by order make a code for the purpose of regulating the initial obligations.

(2) OFCOM may but need not make a code under subsection (1) for a time before the end of—

(a) the period of six months beginning with the day on which sections 124A and 124B come into force, or

(b) such longer period as the Secretary of State may specify by notice to OFCOM.

(3) The Secretary of State may give a notice under subsection (2)(b) only if it appears to the Secretary of State that it is not practicable for OFCOM to make a code with effect from the end of the period mentioned in subsection (2)(a) or any longer period for the time being specified under subsection (2)(b).

(4) A code under this section may do any of the things mentioned in section 124C(3) to (5).

(5) A code under this section may also— (a) confer jurisdiction with respect to any matter (other than jurisdiction to

determine appeals by subscribers) on OFCOM themselves; (b) provide for OFCOM, in exercising such jurisdiction, to make awards of

compensation, to direct the reimbursement of costs, or to do both; (c) provide for OFCOM to enforce, or to participate in the enforcement of, any

awards or directions made under the code; (d) make other provision for the enforcement of such awards and directions; (e) establish a body corporate, with the capacity to make its own rules and

establish its own procedures, for the purpose of determining subscriber appeals;

(f) provide for a person with the function of determining subscriber appeals to enforce, or to participate in the enforcement of, any awards or directions made by the person;

(g) make other provision for the enforcement of such awards and directions; and (h) make other provision for the purpose of regulating the initial obligations.

(6) OFCOM must not make a code under this section unless they are satisfied that it meets the criteria set out in section 124E.

(7) OFCOM must— (a) keep a code under this section under review; and (b) by order make any amendment of it that is necessary to ensure that while it is

in force it continues to meet the criteria set out in section 124E.

(8) The consent of the Secretary of State is required for the making or amendment by OFCOM of a code under this section.

(9) Section 403 applies to the power of OFCOM to make an order under this section.

(10) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.]

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Textual Amendments F247 S. 124D inserted (8.4.2010) by Digital Economy Act 2010 (c. 24), ss. 6, 47(2)(a)

[F248124EContents of initial obligations code

(1) The criteria referred to in sections 124C(6) and 124D(6) are— (a) that the code makes the required provision about copyright infringement

reports (see subsection (2)); (b) that it makes the required provision about the notification of subscribers (see

subsections (3) and (4)); (c) that it sets the threshold applying for the purposes of determining who is a

relevant subscriber within the meaning of section 124B(3) (see subsections (5) and (6));

(d) that it makes provision about how internet service providers are to keep information about subscribers;

(e) that it limits the time for which they may keep that information; (f) that it makes any provision about contributions towards meeting costs that is

required to be included by an order under section 124M; (g) that the requirements concerning administration and enforcement are met in

relation to the code (see subsections (7) and (8)); (h) that the requirements concerning subscriber appeals are met in relation to the

code (see section 124K); (i) that the provisions of the code are objectively justifiable in relation to the

matters to which it relates; (j) that those provisions are not such as to discriminate unduly against particular

persons or against a particular description of persons; (k) that those provisions are proportionate to what they are intended to achieve;

and (l) that, in relation to what those provisions are intended to achieve, they are

transparent.

(2) The required provision about copyright infringement reports is provision that specifies—

(a) requirements as to the means of obtaining evidence of infringement of copyright for inclusion in a report;

(b) the standard of evidence that must be included; and (c) the required form of the report.

(3) The required provision about the notification of subscribers is provision that specifies, in relation to a subscriber in relation to whom an internet service provider receives one or more copyright infringement reports—

(a) requirements as to the means by which the provider identifies the subscriber; (b) which of the reports the provider must notify the subscriber of; and (c) requirements as to the form, contents and means of the notification in each

case.

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(4) The provision mentioned in subsection (3) must not permit any copyright infringement report received by an internet service provider more than 12 months before the date of a notification of a subscriber to be taken into account for the purposes of the notification.

(5) The threshold applying in accordance with subsection (1)(c) may, subject to subsection (6), be set by reference to any matter, including in particular one or more of—

(a) the number of copyright infringement reports; (b) the time within which the reports are made; and (c) the time of the apparent infringements to which they relate.

(6) The threshold applying in accordance with subsection (1)(c) must operate in such a way that a copyright infringement report received by an internet service provider more than 12 months before a particular date does not affect whether the threshold is met on that date; and a copyright infringement list provided under section 124B must not take into account any such report.

(7) The requirements concerning administration and enforcement are— (a) that OFCOM have, under the code, the functions of administering and

enforcing it, including the function of resolving owner-provider disputes; (b) that there are adequate arrangements under the code for OFCOM to obtain

any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code; and

(c) that there are adequate arrangements under the code for the costs incurred by OFCOM in administering and enforcing the code to be met by internet service providers and copyright owners.

(8) The provision mentioned in subsection (7) may include, in particular— (a) provision for the payment, to a person specified in the code, of a penalty

not exceeding the maximum penalty for the time being specified in section 124L(2);

(b) provision requiring a copyright owner to indemnify an internet service provider for any loss or damage resulting from the owner's failure to comply with the code or the copyright infringement provisions.

(9) In this section “owner-provider dispute” means a dispute that— (a) is between persons who are copyright owners or internet service providers;

and (b) relates to an act or omission in relation to an initial obligation or an initial

obligations code.]

Textual Amendments F248 S. 124E inserted (8.4.2010) by Digital Economy Act 2010 (c. 24), ss. 7, 47(2)(a)

[F249124FProgress reports

(1) OFCOM must prepare the following reports for the Secretary of State about the infringement of copyright by subscribers to internet access services.

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(2) OFCOM must prepare a full report for— (a) the period of 12 months beginning with the first day on which there is an initial

obligations code in force; and (b) each successive period of 12 months.

(3) OFCOM must prepare an interim report for— (a) the period of 3 months beginning with the first day on which there is an initial

obligations code in force; and (b) each successive period of 3 months, other than one ending at the same time

as a period of 12 months under subsection (2). But this is subject to any direction by the Secretary of State under subsection (4).

(4) The Secretary of State may direct that subsection (3) no longer applies, with effect from the date given in the direction.

(5) A full report under this section must include— (a) an assessment of the current level of subscribers' use of internet access

services to infringe copyright; (b) a description of the steps taken by copyright owners to enable subscribers to

obtain lawful access to copyright works; (c) a description of the steps taken by copyright owners to inform, and change the

attitude of, members of the public in relation to the infringement of copyright; (d) an assessment of the extent of the steps mentioned in paragraphs (b) and (c); (e) an assessment of the extent to which copyright owners have made copyright

infringement reports; (f) an assessment of the extent to which they have brought legal proceedings

against subscribers in relation to whom such reports have been made; (g) an assessment of the extent to which any such proceedings have been against

subscribers in relation to whom a substantial number of reports have been made; and

(h) anything else that the Secretary of State directs OFCOM to include in the report.

(6) An interim report under this section must include— (a) the assessments mentioned in subsection (5)(a), (e) and (f); and (b) anything else that the Secretary of State directs OFCOM to include in the

report.

(7) OFCOM must send a report prepared under this section to the Secretary of State as soon as practicable after the end of the period for which it is prepared.

(8) OFCOM must publish every full report under this section— (a) as soon as practicable after they send it to the Secretary of State, and (b) in such manner as they consider appropriate for bringing it to the attention of

persons who, in their opinion, are likely to have an interest in it.

(9) OFCOM may exclude information from a report when it is published under subsection (8) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.]

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Textual Amendments F249 S. 124F inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 8, 47(1)

[F250124GObligations to limit internet access: assessment and preparation

(1) The Secretary of State may direct OFCOM to— (a) assess whether one or more technical obligations should be imposed on

internet service providers; (b) take steps to prepare for the obligations; (c) provide a report on the assessment or steps to the Secretary of State.

(2) A “technical obligation”, in relation to an internet service provider, is an obligation for the provider to take a technical measure against some or all relevant subscribers to its service for the purpose of preventing or reducing infringement of copyright by means of the internet.

(3) A “technical measure” is a measure that— (a) limits the speed or other capacity of the service provided to a subscriber; (b) prevents a subscriber from using the service to gain access to particular

material, or limits such use; (c) suspends the service provided to a subscriber; or (d) limits the service provided to a subscriber in another way.

(4) A subscriber to an internet access service is “relevant” if the subscriber is a relevant subscriber, within the meaning of section 124B(3), in relation to the provider of the service and one or more copyright owners.

(5) The assessment and steps that the Secretary of State may direct OFCOM to carry out or take under subsection (1) include, in particular—

(a) consultation of copyright owners, internet service providers, subscribers or any other person;

(b) an assessment of the likely efficacy of a technical measure in relation to a particular type of internet access service; and

(c) steps to prepare a proposed technical obligations code.

(6) Internet service providers and copyright owners must give OFCOM any assistance that OFCOM reasonably require for the purposes of complying with any direction under this section.

(7) The Secretary of State must lay before Parliament any direction under this section.

(8) OFCOM must publish every report under this section— (a) as soon as practicable after they send it to the Secretary of State, and (b) in such manner as they consider appropriate for bringing it to the attention of

persons who, in their opinion, are likely to have an interest in it.

(9) OFCOM may exclude information from a report when it is published under subsection (8) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.]

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Textual Amendments F250 S. 124G inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 9, 47(1)

[F251124HObligations to limit internet access

(1) The Secretary of State may by order impose a technical obligation on internet service providers if—

(a) OFCOM have assessed whether one or more technical obligations should be imposed on internet service providers; and

(b) taking into account that assessment, reports prepared by OFCOM under section 124F, and any other matter that appears to the Secretary of State to be relevant, the Secretary of State considers it appropriate to make the order.

(2) No order may be made under this section within the period of 12 months beginning with the first day on which there is an initial obligations code in force.

(3) An order under this section must specify the date from which the technical obligation is to have effect, or provide for it to be specified.

(4) The order may also specify— (a) the criteria for taking the technical measure concerned against a subscriber; (b) the steps to be taken as part of the measure and when they are to be taken.

(5) No order is to be made under this section unless— (a) the Secretary of State has complied with subsections (6) to (10), and (b) a draft of the order has been laid before Parliament and approved by a

resolution of each House.

(6) If the Secretary of State proposes to make an order under this section, the Secretary of State must lay before Parliament a document that—

(a) explains the proposal, and (b) sets it out in the form of a draft order.

(7) During the period of 60 days beginning with the day on which the document was laid under subsection (6) (“the 60-day period”), the Secretary of State may not lay before Parliament a draft order to give effect to the proposal (with or without modifications).

(8) In preparing a draft order under this section to give effect to the proposal, the Secretary of State must have regard to any of the following that are made with regard to the draft order during the 60-day period—

(a) any representations, and (b) any recommendations of a committee of either House of Parliament charged

with reporting on the draft order.

(9) When laying before Parliament a draft order to give effect to the proposal (with or without modifications), the Secretary of State must also lay a document that explains any changes made to the proposal contained in the document laid before Parliament under subsection (6).

(10) In calculating the 60-day period, no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than 4 days.]

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Textual Amendments F251 S. 124H inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 10, 47(1)

[F252124ICode by OFCOM about obligations to limit internet access

(1) For any period during which there are one or more technical obligations in force under section 124H, OFCOM must by order make a technical obligations code for the purpose of regulating those obligations.

(2) The code may be made separately from, or in combination with, any initial obligations code under section 124D.

(3) A code under this section may— (a) do any of the things mentioned in section 124C(3) to (5) or section 124D(5)

(a) to (g); and (b) make other provision for the purpose of regulating the technical obligations.

(4) OFCOM must not make a code under this section unless they are satisfied that it meets the criteria set out in section 124J.

(5) OFCOM must— (a) keep a code under this section under review; and (b) by order make any amendment of it that is necessary to ensure that while it is

in force it continues to meet the criteria set out in section 124J.

(6) The consent of the Secretary of State is required for the making or amendment by OFCOM of a code under this section.

(7) Section 403 applies to the power of OFCOM to make an order under this section.

(8) A statutory instrument containing an order made by OFCOM under this section is subject to annulment in pursuance of a resolution of either House of Parliament.]

Textual Amendments F252 S. 124I inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 11, 47(1)

[F253124JContents of code about obligations to limit internet access

(1) The criteria referred to in section 124I(4) are— (a) that the requirements concerning enforcement and related matters are met in

relation to the code (see subsections (2) and (3)); (b) that the requirements concerning subscriber appeals are met in relation to the

code (see section 124K); (c) that it makes any provision about contributions towards meeting costs that is

required to be included by an order under section 124M; (d) that it makes any other provision that the Secretary of State requires it to make; (e) that the provisions of the code are objectively justifiable in relation to the

matters to which it relates;

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(f) that those provisions are not such as to discriminate unduly against particular persons or against a particular description of persons;

(g) that those provisions are proportionate to what they are intended to achieve; and

(h) that, in relation to what those provisions are intended to achieve, they are transparent.

(2) The requirements concerning enforcement and related matters are— (a) that OFCOM have, under the code, the functions of administering and

enforcing it, including the function of resolving owner-provider disputes; (b) that there are adequate arrangements under the code for OFCOM to obtain

any information or assistance from internet service providers or copyright owners that OFCOM reasonably require for the purposes of administering and enforcing the code; and

(c) that there are adequate arrangements under the code for the costs incurred by OFCOM in administering and enforcing the code to be met by internet service providers and copyright owners.

(3) The provision made concerning enforcement and related matters may also (unless the Secretary of State requires otherwise) include, in particular—

(a) provision for the payment, to a person specified in the code, of a penalty not exceeding the maximum penalty for the time being specified in section 124L(2);

(b) provision requiring a copyright owner to indemnify an internet service provider for any loss or damage resulting from the owner's infringement or error in relation to the code or the copyright infringement provisions.

(4) In this section “owner-provider dispute” means a dispute that— (a) is between persons who are copyright owners or internet service providers;

and (b) relates to an act or omission in relation to a technical obligation or a technical

obligations code.]

Textual Amendments F253 S. 124J inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 12, 47(1)

[F254124KSubscriber appeals

(1) The requirements concerning subscriber appeals are— (a) for the purposes of section 124E(1)(h), the requirements of subsections (2)

to (8); and (b) for the purposes of section 124J(1)(b), the requirements of subsections (2) to

(11).

(2) The requirements of this subsection are— (a) that the code confers on subscribers the right to bring a subscriber appeal and,

in the case of a technical obligations code, a further right of appeal to the First- tier Tribunal;

(b) that there is a person who, under the code, has the function of determining subscriber appeals;

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(c) that that person is for practical purposes independent (so far as determining subscriber appeals is concerned) of internet service providers, copyright owners and OFCOM; and

(d) that there are adequate arrangements under the code for the costs incurred by that person in determining subscriber appeals to be met by internet service providers, copyright owners and the subscriber concerned.

(3) The code must provide for the grounds of appeal (so far as an appeal relates to, or to anything done by reference to, a copyright infringement report) to include the following—

(a) that the apparent infringement to which the report relates was not an infringement of copyright;

(b) that the report does not relate to the subscriber's IP address at the time of the apparent infringement.

(4) The code must provide for the grounds of appeal to include contravention by the copyright owner or internet service provider of the code or of an obligation regulated by the code.

(5) The code must provide that an appeal on any grounds must be determined in favour of the subscriber unless the copyright owner or internet service provider shows that, as respects any copyright infringement report to which the appeal relates or by reference to which anything to which the appeal relates was done (or, if there is more than one such report, as respects each of them)—

(a) the apparent infringement was an infringement of copyright, and (b) the report relates to the subscriber's IP address at the time of that infringement.

(6) The code must provide that, where a ground mentioned in subsection (3) is relied on, the appeal must be determined in favour of the subscriber if the subscriber shows that—

(a) the act constituting the apparent infringement to which the report relates was not done by the subscriber, and

(b) the subscriber took reasonable steps to prevent other persons infringing copyright by means of the internet access service.

(7) The powers of the person determining subscriber appeals must include power— (a) to secure so far as practicable that a subscriber is not prejudiced for the

purposes of the copyright infringement provisions by an act or omission in respect of which an appeal is determined in favour of the subscriber;

(b) to make an award of compensation to be paid by a copyright owner or internet service provider to a subscriber affected by such an act or omission; and

(c) where the appeal is determined in favour of the subscriber, to direct the copyright owner or internet service provider to reimburse the reasonable costs of the subscriber.

(8) The code must provide that the power to direct the reimbursement of costs under subsection (7)(c) is to be exercised to award reasonable costs to a subscriber whose appeal is successful, unless the person deciding the appeal is satisfied that it would be unjust to give such a direction having regard to all the circumstances including the conduct of the parties before and during the proceedings.

(9) In the case of a technical obligations code, the powers of the person determining subscriber appeals must include power—

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(a) on an appeal in relation to a technical measure or proposed technical measure—

(i) to confirm the measure; (ii) to require the measure not to be taken or to be withdrawn;

(iii) to substitute any other technical measure that the internet service provider has power to take;

(b) to exercise the power mentioned in paragraph (a)(ii) or (iii) where an appeal is not upheld but the person determining it is satisfied that there are exceptional circumstances that justify the exercise of the power;

(c) to take any steps that OFCOM could take in relation to the act or omission giving rise to the technical measure; and

(d) to remit the decision whether to confirm the technical measure, or any matter relating to that decision, to OFCOM.

(10) In the case of a technical obligations code, the code must make provision— (a) enabling a determination of a subscriber appeal to be appealed to the First-tier

Tribunal, including on grounds that it was based on an error of fact, wrong in law or unreasonable;

(b) giving the First-tier Tribunal, in relation to an appeal to it, the powers mentioned in subsections (7) and (9); and

(c) in relation to recovery of costs awarded by the Tribunal.

(11) In the case of a technical obligations code, the code must include provision to secure that a technical measure is not taken against a subscriber until—

(a) the period for bringing a subscriber appeal, or any further appeal to the First- tier Tribunal, in relation to the proposed measure has ended (or the subscriber has waived the right to appean( � and

(b) any such subscriber appeal or further appeal has been determined, abandoned or otherwise disposed of.]

Textual Amendments F254 S. 124K inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 13, 47(1)

[F255124LEnforcement of obligations

(1) Sections 94 to 96 apply in relation to a contravention of an initial obligation or a technical obligation, or a contravention of an obligation under section 124G(6), as they apply in relation to a contravention of a condition set out under section 45.

(2) The amount of the penalty imposed under section 96 as applied by this section is to be such amount not exceeding £250,000 as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.

(3) In making that determination OFCOM must have regard to— (a) any representations made to them by the internet service provider or copyright

owner on whom the penalty is imposed;

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(b) any steps taken by the provider or owner towards complying with the obligations contraventions of which have been notified to the provider or owner under section 94 (as applied); and

(c) any steps taken by the provider or owner for remedying the consequences of those contraventions.

(4) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (2).

(5) No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.]

Textual Amendments F255 S. 124L inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 14, 47(1)

[F256124MSharing of costs

(1) The Secretary of State may by order specify provision that must be included in an initial obligations code or a technical obligations code about payment of contributions towards costs incurred under the copyright infringement provisions.

(2) Any provision specified under subsection (1) must relate to payment of contributions by one or more of the following only—

(a) copyright owners; (b) internet service providers; (c) in relation to a subscriber appeal or a further appeal by a subscriber to the

First-tier Tribunal, the subscriber.

(3) Provision specified under subsection (1) may relate to, in particular— (a) payment by a copyright owner of a contribution towards the costs that an

internet service provider incurs; (b) payment by a copyright owner or internet service provider of a contribution

towards the costs that OFCOM incur.

(4) Provision specified under subsection (1) may include, in particular— (a) provision about costs incurred before the provision is included in an initial

obligations code or a technical obligations code; (b) provision for payment in advance of expected costs (and for reimbursement

of overpayments where the costs incurred are less than expected); (c) provision about how costs, expected costs or contributions must be calculated; (d) other provision about when and how contributions must be paid.

(5) No order is to be made under this section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.]

Textual Amendments F256 S. 124M inserted (8.4.2010) by virtue of Digital Economy Act 2010 (c. 24), ss. 15, 47(2)(a)

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[F257124NInterpretation

In sections 124A to 124M and this section— “apparent infringement”, in relation to a copyright infringement report,

means the infringement of copyright that the report states appears to have taken place;

“copyright infringement list” has the meaning given in section 124B(2); “copyright infringement provisions” means sections 124A to 124M and this

section; “copyright infringement report” has the meaning given in section 124A(3); “copyright owner” means—

(a) a copyright owner within the meaning of Part 1 of the Copyright, Designs and Patents Act 1988 (see section 173 of that Act); or

(b) someone authorised by that person to act on the person's behalf; “copyright work” has the same meaning as in Part 1 of the Copyright,

Designs and Patents Act 1988 (see section 1(2) of that Act); “initial obligations” has the meaning given in section 124C(1); “initial obligations code” has the meaning given in section 124A(2); “internet access service” means an electronic communications service that—

(a) is provided to a subscriber; (b) consists entirely or mainly of the provision of access to the internet; and (c) includes the allocation of an IP address or IP addresses to the subscriber

to enable that access; “internet service provider” means a person who provides an internet access

service; “IP address” means an internet protocol address; “subscriber”, in relation to an internet access service, means a person who—

(a) receives the service under an agreement between the person and the provider of the service; and

(b) does not receive it as a communications provider; “subscriber appeal” means—

(a) in relation to an initial obligations code, an appeal by a subscriber on grounds specified in the code in relation to—

(i) the making of a copyright infringement report; (ii) notification under section 124A(4);

(iii) the inclusion or proposed inclusion of an entry in a copyright infringement list; or

(iv) any other act or omission in relation to an initial obligation or an initial obligations code;

(b) in relation to a technical obligations code, an appeal by a subscriber on grounds specified in the code in relation to—

(i) the proposed taking of a technical measure; or (ii) any other act or omission in relation to a technical obligation or

a technical obligations code; “technical measure” has the meaning given in section 124G(3); “technical obligation” has the meaning given in section 124G(2); “technical obligations code” means a code in force under section 124I.]

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Textual Amendments F257 S. 124N inserted (8.4.2010) by Digital Economy Act 2010 (c. 24), ss. 16(1), 47(2)(a)

[F258Billing limits for mobile phones

Textual Amendments F258 Ss. 124S, 124T and cross-heading inserted (1.10.2018) by Digital Economy Act 2017 (c. 30), ss. 102,

118(6); S.I. 2017/765, reg. 4

124S Mobile phone providers' duty to enable billing limits to be applied

(1) The provider of a mobile phone service must not enter into a contract to provide the service unless the customer has been given an opportunity to specify a billing limit in the contract.

(2) In relation to a contract to provide a mobile phone service— (a) a billing limit is a limit on the amount the customer may be charged for

provision of the service in respect of each billing period, and (b) a billing period is one of successive periods specified in the contract and

together making up the period for which the contract remains in force.

(3) A contract to provide a mobile phone service must provide for the customer on reasonable notice at any time—

(a) to specify a billing limit if none is specified for the time being, (b) to amend or remove a limit in respect of all billing periods or a specified

billing period.

(4) In any billing period the provider must— (a) so far as practicable, notify the customer in reasonable time if a limit is likely

to be reached before the end of the period, and (b) notify the customer as soon as practicable if a limit is reached before the end

of the period.

(5) A limit may be exceeded in relation to a billing period only if the customer agrees after a notification under subsection (4)(a) or (b).

(6) If the provider continues to provide the service after a limit is reached, the customer's use of the service does not constitute agreement to the limit being exceeded.

(7) The provider must give the customer confirmation in writing of— (a) the decision made by the customer in accordance with subsection (1), (b) any decision of the customer under provision made in accordance with

subsection (3), and (c) any agreement by the customer in accordance with subsection (5).

(8) This section applies to agreeing to extend a contract as it applies to entering into a contract, and in that case the reference in subsection (2)(b) to the period for which the contract remains in force is a reference to the period of the extension.

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(9) Nothing in this section affects a provider's duty to comply with requirements to enable calls to emergency services.

(10) In this section— “customer” does not include a person who is a customer as a

communications provider; “mobile phone service” means an electronic communications service which

is provided in the course of a business wholly or mainly so as to be available to members of the public for the purpose of communicating with others, or accessing data, by mobile phone.

124T Enforcement of duty to enable billing limits to be applied

(1) Sections 96A to 96C apply in relation to a contravention of a requirement under section 124S as they apply in relation to a contravention of a condition set under section 45, with the following modifications.

(2) Section 96A(2)(f) and (g) (OFCOM directions) do not apply.

(3) Section 96A(5) to (7) (action under the Competition Act 1998) do not apply.

(4) The amount of a penalty imposed under sections 96A to 96C, as applied by this section, other than a penalty falling within section 96B(4), is to be such amount not exceeding £2 million as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.]

Offences relating to networks and services

125 Dishonestly obtaining electronic communications services

(1) A person who— (a) dishonestly obtains an electronic communications service, and (b) does so with intent to avoid payment of a charge applicable to the provision

of that service, is guilty of an offence.

(2) It is not an offence under this section to obtain a service mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988 (c. 48) (dishonestly obtaining a broadcasting F259... service provided from a place in the UK).

(3) A person guilty of an offence under this section shall be liable— (a) on summary conviction, to imprisonment for a term not exceeding six months

or to a fine not exceeding the statutory maximum, or to both; (b) on conviction on indictment, to imprisonment for a term not exceeding five

years or to a fine, or to both.

Textual Amendments F259 Words in s. 125(2) repealed (31.10.2003) by The Copyright and Related Rights Regulations 2003 (S.I.

2003/2498), reg. 1, Sch. 2 (with regs. 31-40)

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Commencement Information I226 S. 125 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I227 S. 125 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

126 Possession or supply of apparatus etc. for contravening s. 125

(1) A person is guilty of an offence if, with an intention falling within subsection (3), he has in his possession or under his control anything that may be used—

(a) for obtaining an electronic communications service; or (b) in connection with obtaining such a service.

(2) A person is guilty of an offence if— (a) he supplies or offers to supply anything which may be used as mentioned in

subsection (1); and (b) he knows or believes that the intentions in relation to that thing of the person

to whom it is supplied or offered fall within subsection (3).

(3) A person’s intentions fall within this subsection if he intends— (a) to use the thing to obtain an electronic communications service dishonestly; (b) to use the thing for a purpose connected with the dishonest obtaining of such

a service; (c) dishonestly to allow the thing to be used to obtain such a service; or (d) to allow the thing to be used for a purpose connected with the dishonest

obtaining of such a service.

(4) An intention does not fall within subsection (3) if it relates exclusively to the obtaining of a service mentioned in section 297(1) of the Copyright, Designs and Patents Act 1988 (c. 48).

(5) A person guilty of an offence under this section shall be liable— (a) on summary conviction, to imprisonment for a term not exceeding six months

or to a fine not exceeding the statutory maximum, or to both; and (b) on conviction on indictment, to imprisonment for a term not exceeding five

years or to a fine, or to both.

(6) In this section, references, in the case of a thing used for recording data, to the use of that thing include references to the use of data recorded by it.

Commencement Information I228 S. 126 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I229 S. 126 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

127 Improper use of public electronic communications network

(1) A person is guilty of an offence if he—

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(a) sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or

(b) causes any such message or matter to be so sent.

(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—

(a) sends by means of a public electronic communications network, a message that he knows to be false,

(b) causes such a message to be sent; or (c) persistently makes use of a public electronic communications network.

(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.

(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

[F260(5) An information or complaint relating to an offence under this section may be tried by a magistrates' court in England and Wales or Northern Ireland if it is laid or made—

(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and

(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.

(6) Summary proceedings for an offence under this section may be commenced in Scotland—

(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and

(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings,

and section 136(3) of the Criminal Procedure (Scotland) Act 1995 (date when proceedings deemed to be commenced) applies for the purposes of this subsection as it applies for the purposes of that section.

(7) A certificate of a prosecutor as to the date on which evidence described in subsection (5)(b) or (6)(b) came to his or her knowledge is conclusive evidence of that fact.]

Textual Amendments F260 S. 127(5)-(7) inserted (13.4.2015) by Criminal Justice and Courts Act 2015 (c. 2), ss. 51(1), 95(1)

(with s. 51(2)); S.I. 2015/778, art. 3, Sch. 1 para. 42

Commencement Information I230 S. 127 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I231 S. 127 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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Persistent misuse of network or service

128 Notification of misuse of networks and services

(1) Where OFCOM determine that there are reasonable grounds for believing that a person has persistently misused an electronic communications network or electronic communications services, they may give that person a notification under this section.

(2) A notification under this section is one which— (a) sets out the determination made by OFCOM; (b) specifies the use that OFCOM consider constitutes persistent misuse; and (c) specifies the period during which the person notified has an opportunity of

making representations about the matters notified.

(3) That period must not be less than the following— (a) in an urgent case, seven days; and (b) in any other case, one month.

(4) A case is an urgent case for the purposes of subsection (3) if OFCOM consider— (a) that the misuse in question is continuing; and (b) that the harm it causes makes it necessary for it to be stopped as soon as

possible.

(5) For the purposes of this Chapter a person misuses an electronic communications network or electronic communications service if—

(a) the effect or likely effect of his use of the network or service is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety; or

(b) he uses the network or service to engage in conduct the effect or likely effect of which is to cause another person unnecessarily to suffer annoyance, inconvenience or anxiety.

(6) For the purposes of this Chapter the cases in which a person is to be treated as persistently misusing a network or service include any case in which his misuse is repeated on a sufficient number of occasions for it to be clear that the misuse represents—

(a) a pattern of behaviour or practice; or (b) recklessness as to whether persons suffer annoyance, inconvenience or

anxiety.

(7) For the purpose of determining whether misuse on a number of different occasions constitutes persistent misuse for the purposes of this Chapter, each of the following is immaterial—

(a) that the misuse was in relation to a network on some occasions and in relation to a service on others;

(b) that different networks or services were involved on different occasions; and (c) that the persons who were or were likely to suffer annoyance inconvenience

or anxiety were different on different occasions.

(8) If he considers that appropriate alternative means of dealing with it exists, the Secretary of State may by order provide that a use of a description specified in the order is not to be treated for the purposes of this Chapter as a misuse of an electronic communications network or electronic communications service.

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Commencement Information I232 S. 128 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I233 S. 128 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

129 Enforcement notifications for stopping persistent misuse

(1) This section applies where— (a) a person (“the notified misuser”) has been given a notification under

section 128; (b) OFCOM have allowed the notified misuser an opportunity of making

representations about the matters notified; and (c) the period allowed for the making of the representations has expired.

(2) OFCOM may give the notified misuser an enforcement notification if they are satisfied—

(a) that he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service; and

(b) that he has not, since the giving of the notification, taken all such steps as OFCOM consider appropriate for—

(i) securing that his misuse is brought to an end and is not repeated; and (ii) remedying the consequences of the notified misuse.

(3) An enforcement notification is a notification which imposes a requirement on the notified misuser to take all such steps for—

(a) securing that his misuse is brought to an end and is not repeated, and (b) remedying the consequences of the notified misuse,

as may be specified in the notification.

(4) A decision of OFCOM to give an enforcement notification to a person must fix a reasonable period for the taking of the steps required by the notification.

(5) It shall be the duty of a person to whom an enforcement notification has been given to comply with it.

(6) That duty 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.

(7) References in this section to remedying the consequences of misuse include references to paying an amount to a person—

(a) by way of compensation for loss or damage suffered by that person; or (b) in respect of annoyance, inconvenience or anxiety to which he has been put.

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Commencement Information I234 S. 129 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I235 S. 129 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

130 Penalties for persistent misuse

(1) This section applies (in addition to section 129) where— (a) a person (“the notified misuser”) has been given a notification under

section 128; (b) OFCOM have allowed the notified misuser an opportunity of making

representations about the matters notified; and (c) the period allowed for the making of the representations has expired.

(2) OFCOM may impose a penalty on the notified misuser if he has, in one or more of the notified respects, persistently misused an electronic communications network or electronic communications service.

(3) OFCOM may also impose a penalty on the notified misuser if he has contravened a requirement of an enforcement notification given in respect of the notified misuse.

(4) The amount of a penalty imposed is to be such amount not exceeding [F261£2,000,000] as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the misuse in respect of which it is imposed.

(5) In making that determination OFCOM must have regard to— (a) any representations made to them by the notified misuser; (b) any steps taken by him for securing that his misuse is brought to an end and

is not repeated; and (c) any steps taken by him for remedying the consequences of the notified misuse.

(6) Where OFCOM impose a penalty on a person under this section, they shall— (a) notify the person penalised; and (b) in that notification, fix a reasonable period after it is given as the period within

which the penalty is to be paid.

(7) A penalty imposed under this section— (a) must be paid to OFCOM; and (b) if not paid within the period fixed by them, is to be recoverable by them

accordingly.

(8) It is to be possible for a person to be both liable for an offence under sections 125 to 127 and to have a penalty imposed on him under this section in respect of the same conduct.

(9) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (4).

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(10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Textual Amendments F261 Word in s. 130(4) substituted (25.9.2010) by Communications Act 2003 (Maximum Penalty for

Persistent Misuse of Network or Service) Order 2010 (S.I. 2010/2291), arts. 1, 2(1) (with art. 2(2))

Commencement Information I236 S. 130 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I237 S. 130 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

131 Statement of policy on persistent misuse

(1) It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to the exercise of their powers under sections 128 to 130.

(2) OFCOM may from time to time revise that statement as they think fit.

(3) Where OFCOM make or revise their statement of policy under this section, they must publish that statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(4) It shall be the duty of OFCOM, in exercising the powers conferred on them by sections 128 to 130, to have regard to the statement for the time being in force under this section.

Commencement Information I238 S. 131 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I239 S. 131 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Powers to deal with emergencies

132 Powers to require suspension or restriction of a provider’s entitlement

(1) If the Secretary of State has reasonable grounds for believing that it is necessary to do so—

(a) to protect the public from any threat to public safety or public health, or (b) in the interests of national security,

he may, by a direction to OFCOM, require them to give a direction under subsection (3) to a person (“the relevant provider”) who provides an electronic communications network or electronic communications service or who makes associated facilities available.

(2) OFCOM must comply with a requirement of the Secretary of State under subsection (1) by giving to the relevant provider such direction under subsection (3)

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as they consider necessary for the purpose of complying with the Secretary of State’s direction.

(3) A direction under this section is— (a) a direction that the entitlement of the relevant provider to provide electronic

communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

(b) a direction that that entitlement is restricted in the respects set out in the direction.

(4) A direction under subsection (3)— (a) must specify the networks, services and facilities to which it relates; and (b) except so far as it otherwise provides, takes effect for an indefinite period

beginning with the time at which it is notified to the person to whom it is given.

(5) A direction under subsection (3)— (a) in providing for the effect of a suspension or restriction to be postponed, may

provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the relevant provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

(6) Those conditions may include a condition requiring the making of payments— (a) by way of compensation for loss or damage suffered by the relevant provider’s

customers as a result of the direction; or (b) in respect of annoyance, inconvenience or anxiety to which they have been

put in consequence of the direction.

(7) Where OFCOM give a direction under subsection (3), they shall, as soon as practicable after doing so, provide that person with an opportunity of—

(a) making representations about the effect of the direction; and (b) proposing steps for remedying the situation.

(8) If OFCOM consider it appropriate to do so (whether in consequence of any representations or proposals made to them under subsection (3) or otherwise), they may, without revoking it, at any time modify the terms of a direction under subsection (3) in such manner as they consider appropriate.

(9) If the Secretary of State considers it appropriate to do so, he may, by a direction to OFCOM, require them to revoke a direction under subsection (3).

(10) Where OFCOM modify or revoke a direction they have given under subsection (3), they may do so—

(a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such networks, services or facilities, or parts

of a network, service or facility, as they may determine.

(11) It shall be the duty of OFCOM to comply with— (a) a requirement under subsection (9) to revoke a direction; and

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(b) a requirement contained in that direction as to how they should exercise their powers under subsection (10) in the case of the required revocation.

Commencement Information I240 S. 132 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I241 S. 132 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

133 Enforcement of directions under s. 132

(1) A person is guilty of an offence if he provides an electronic communications network or electronic communications service, or makes available any associated facility—

(a) while his entitlement to do so is suspended by a direction under section 132; or (b) in contravention of a restriction contained in such a direction.

(2) A person guilty of an offence under subsection (1) shall be liable— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine.

(3) The duty of a person to comply with a condition of a direction under section 132 shall be a duty owed to every person who may be affected by a contravention of the condition.

(4) Where a duty is owed by virtue of subsection (3) to a person— (a) a breach of the duty that causes that person to sustain loss or damage, and (b) an act which—

(i) by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and

(ii) is done wholly or partly for achieving that result, shall be actionable at the suit or instance of that person.

(5) In proceedings brought against a person by virtue of subsection (4)(a) it shall be a defence for that person to show that he took all reasonable steps and exercised all due diligence to avoid contravening the condition in question.

(6) Sections [F26296A] to 99 apply in relation to a contravention of conditions imposed by a direction under section 132 as they apply in relation to a contravention of conditions set under section 45 [F263, other than SMP apparatus conditions] .

Textual Amendments F262 Word in s. 133(6) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 78 (with Sch. 3 paras. 2, 17) F263 Words in s. 133(6) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 78 (with Sch. 3 paras. 2, 17)

Commencement Information I242 S. 133 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I243 S. 133 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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Restrictions in leases and licences

134 Restrictions in leases and licences

(1) This section applies where provision contained in a lease, licence or other agreement relating to premises has the effect of imposing on the occupier a prohibition or restriction under which his choice of—

(a) the person from whom he obtains electronic communications services, or particular electronic communications services, or

(b) the person through whom he arranges to be provided with electronic communications services, or particular electronic communications services,

is confined to a person with an interest in the premises, to a person selected by a person with such an interest or to persons who are one or the other.

(2) This section also applies where— (a) provision contained in a lease for a year or more has the effect of imposing

any other prohibition or restriction on the lessee with respect to an electronic communications matter; or

(b) provision contained in an agreement relating to premises to which a lease for a year or more applies has the effect of imposing a prohibition or restriction on the lessee with respect to such a matter.

(3) A provision falling within subsection (1) shall have effect— (a) as if the prohibition or restriction applied only where the lessor, licensor or

other party to the agreement has not given his consent to a departure from the requirements imposed by the prohibition or restriction; and

(b) as if the lessor, licensor or other party were required not to withhold that consent unreasonably.

(4) A provision falling within subsection (2)(a) or (b) shall have effect— (a) in relation to things done inside a building occupied by the lessee under the

lease, or (b) for purposes connected with the provision to the lessee of an electronic

communications service, as if the prohibition or restriction applied only where the lessor has not given his consent in relation to the matter in question and as if the lessor were required not to withhold that consent unreasonably.

(5) Where (whether by virtue of this section or otherwise) a provision falling within subsection (1) or (2) imposes a requirement on a lessor, licensor or party to an agreement not unreasonably to withhold his consent—

(a) in relation to an electronic communications matter, or (b) to the obtaining by the occupier of premises of an electronic communications

service from or through a particular person, the question whether the consent is unreasonably withheld has to be determined having regard to all the circumstances and to the principle that no person should unreasonably be denied access to an electronic communications network or to electronic communications services.

(6) OFCOM may by order provide for this section not to apply in the case of such provisions as may be described in the order.

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(7) References in this section to electronic communications matters are references to— (a) the provision of an electronic communications network or electronic

communications service; (b) the connection of electronic communications apparatus to a relevant

electronic communications network or of any such network to another; and (c) the installation, maintenance, adjustment, repair, alteration or use for purposes

connected with the provision of such a network or service of electronic communications apparatus.

(8) In this section— “alteration” has the same meaning as in the electronic communications code; “lease” includes—

(a) a leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and an agreement to grant such a tenancy, and

(b) in Scotland, a sub-lease and an agreement to grant a sub-lease,

and “lessor” and “lessee” are to be construed accordingly; “relevant electronic communications network” means—

(a) a public electronic communications network that is specified for the purposes of this section in an order made by the Secretary of State; or

(b) an electronic communications network that is, or is to be, connected (directly or indirectly) to such a network.

(9) This section applies to provisions contained in leases, licences or agreements granted or entered into before the commencement of this section to the extent only that provision to that effect is contained in an order made by OFCOM.

(10) This section is not to be construed as affecting the operation of paragraph 2(3) of the electronic communications code (lessees etc. bound by rights granted under code by owners).

(11) The consent of the Secretary of State is required for the making by OFCOM of an order under this section.

(12) Section 403 applies to the powers of OFCOM to make orders under this section.

(13) A statutory instrument containing an order made by OFCOM under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Commencement Information I244 S. 134 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I245 S. 134 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F264Reports on infrastructure etc

Textual Amendments F264 Ss. 134A-134C and cross-headings inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 1(1),

47(1)

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134A OFCOM reports on infrastructure etc

(1) OFCOM must prepare reports in accordance with subsections (2) and (3) and each report must deal with—

(a) the electronic communications networks matters listed in section 134B(1), and (b) the electronic communications services matters listed in section 134B(2).

(2) The first report must— (a) relate to the position on a day specified in the report which falls within the

period of 12 months beginning with the day on which this section comes into force, and

(b) be sent to the Secretary of State by OFCOM not more than 2 months after the specified day.

(3) A further report must— (a) be prepared for each relevant period, and (b) be sent to the Secretary of State by OFCOM as soon as practicable after the

end of the relevant period.

(4) “Relevant period” means— (a) the period of 3 years beginning with the day specified in the first report, and (b) each subsequent period of 3 years beginning with the end of the previous

period.

(5) Where there is a significant change in connection with a matter listed in section 134B(1) or (2) and OFCOM consider that the change should be brought to the attention of the Secretary of State, OFCOM must—

(a) prepare a report on the change, and (b) send it to the Secretary of State as soon as practicable.

(6) For the purposes of subsection (5), a change is significant if OFCOM consider that it has, or is likely to have, a significant adverse impact on—

(a) persons carrying on business in the United Kingdom or a part of the United Kingdom, or

(b) the general public in the United Kingdom or a part of the United Kingdom.

(7) OFCOM must publish every report under this section— (a) as soon as practicable after they send it to the Secretary of State, and (b) in such manner as they consider appropriate for bringing it to the attention of

persons who, in their opinion, are likely to have an interest in it.

(8) OFCOM may exclude information from a report when it is published under subsection (7) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.

[F265134AAAdditional OFCOM reports on infrastructure etc

(1) OFCOM may prepare reports dealing with— (a) any of the electronic communications network matters listed in

section 134B(1); (b) any of the electronic communications services matters listed in

section 134B(2).

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(2) OFCOM may publish a report under this section in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.

(3) Before publishing a report under this section OFCOM must consider— (a) whether any of the information to be contained in it is information that

they could refuse to disclose in response to a request under the Freedom of Information Act 2000, and

(b) if so, whether that information should be excluded from the report.

(4) This section does not affect OFCOM's duty to prepare reports under section 134A.

Textual Amendments F265 Ss. 134AA, 134AB inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 82(2), 118(2)

134AB Publication of information required for purpose of preparing reports

(1) OFCOM may publish— (a) any relevant section 135 information, and (b) any information derived from relevant section 135 information.

(2) Before publishing information under this section OFCOM must consider— (a) whether any of the information that they propose to publish is information

that they could refuse to disclose in response to a request under the Freedom of Information Act 2000, and

(b) if so, whether that information should be published.

(3) In this section “relevant section 135 information” means information required by OFCOM under section 135 for the purpose of preparing a report under section 134A or 134AA.]

Textual Amendments F265 Ss. 134AA, 134AB inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 82(2), 118(2)

134B Networks and services matters

(1) For the purposes of [F266sections 134A and 134AA], the electronic communications networks matters are—

(a) the different types of electronic communications network provided in the United Kingdom (“UK networks”),

(b) the geographic coverage of the different UK networks, (c) the proportion of the population covered by the different UK networks, (d) the extent to which UK networks share infrastructure, (e) the capacity of the different UK networks, (f) the extent to which the providers of the different UK networks allow other

communications providers to use their networks to provide services,

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(g) the amount of time for which the different UK networks are and are not available, including the steps that have been or are to be taken to maintain or improve the level of availability,

(h) the preparations made by providers of UK networks for responding to an emergency, including preparations for restoring normal operation of UK networks disrupted by the emergency, and

(i) the standard of the different UK networks in comparison with electronic communications networks provided in a range of other countries, having regard, in particular, to their coverage and capacity.

(2) For the purposes of [F266sections 134A and 134AA], the electronic communications services matters are—

(a) the use of the electromagnetic spectrum for wireless telegraphy in the United Kingdom,

(b) the different types of electronic communications service provided in the United Kingdom (“UK services”),

(c) the geographic coverage of the different UK services, (d) the proportion of the population covered by the different UK services, (e) the amount of time for which the different UK services are and are not

available, including the steps that have been or are to be taken to maintain or improve the level of availability,

(f) the preparations made by providers of UK services for responding to an emergency, including preparations for restoring normal operation of UK services disrupted by the emergency, and

(g) the standard of the different UK services in comparison with electronic communications services provided in a range of other countries.

(3) The preparations referred to in subsections (1)(h) and (2)(f) include— (a) the steps taken to assess the risks of different types of emergency occurring, (b) the steps taken to reduce or remove those risks, and (c) the testing of proposed responses to different types of emergency.

(4) In a report under section 134A [F267or 134AA], OFCOM are required to include only information about, and analysis of, such networks, services and providers as they consider appropriate.

(5) In this section “emergency” means an event or situation that seriously disrupts a UK network or UK service.

Textual Amendments F266 Words in s. 134B(1)(2) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 82(3)(a),

118(2) F267 Words in s. 134B(4) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 82(3)(b), 118(2)

Reports on internet domain names

134C OFCOM reports on internet domain names

(1) OFCOM must, if requested to do so by the Secretary of State—

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(a) prepare a report on matters specified by the Secretary of State relating to internet domain names, and

(b) send the report to the Secretary of State as soon as practicable.

(2) The specified matters may, in particular, include matters relating to— (a) the allocation and registration of internet domain names, and (b) the misuse of internet domain names.

(3) OFCOM must publish every report under this section— (a) as soon as practicable after they send it to the Secretary of State, and (b) in such manner as they consider appropriate for bringing it to the attention of

persons who, in their opinion, are likely to have an interest in it.

(4) OFCOM may exclude information from a report when it is published under subsection (3) if they consider that it is information that they could refuse to disclose in response to a request under the Freedom of Information Act 2000.]

[F268Comparative overviews

Textual Amendments F268 S. 134D and cross-heading inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 83(2),

118(2)

134D Comparative overviews of quality and prices

(1) OFCOM may, in the interest of the end-users of public electronic communications services, carry out comparative overviews of the quality and prices of such services.

(2) OFCOM may publish a comparative overview carried out under this section in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to have an interest in it.]

Information provisions

[F270135 Information required for purposes of [F269certain OFCOM] functions

(1) [F270OFCOM may require a person falling within subsection (2) to provide them with all such information as they consider necessary for the purpose of carrying out their functions under—

(a) section 14(1), (b) section 26, so far as relating to matters in relation to which they have functions

under this Chapter, or (c) this Chapter.]

(2) The persons falling within this subsection are— (a) a communications provider; (b) a person who has been a communications provider; (c) a person who makes, or has made, any associated facilities available to others;

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(d) a person, other than a communications provider, to whom a universal service condition applies or has applied;

(e) a person who supplies electronic communications apparatus; (f) a person not falling within the preceding paragraphs who appears to OFCOM

to have information required by them for the purpose of carrying out their functions under this Chapter.

(3) The information that may be required by OFCOM under subsection (1) includes, in particular, information that they require for any one or more of the following purposes—

(a) ascertaining whether a contravention of a condition or other requirement set or imposed by or under this Chapter has occurred or is occurring;

(b) ascertaining or verifying the charges payable by a person under section 38; (c) ascertaining whether a provision of a condition set under section 45 which is

for the time being in force continues to be effective for the purpose for which it was made;

(d) ascertaining or verifying amounts payable by virtue of a condition falling within section 51(1)(d);

(e) making a designation in accordance with regulations made under section 66; (f) carrying out a review under section 66 [F271 , 70 or 72A ] ; (g) identifying markets and carrying out market analyses in accordance with, or

for the purposes of, any provision of this Chapter; F272(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(i) considering a matter in exercise of that duty; [F273(ia) preparing a report under section 124F;

(ib) carrying out an assessment, taking steps or providing a report under section 124G;]

[F274(ic) preparing a report under section 134A; [

F275(ica) preparing a report under section 134AA;]

(id) preparing a report under section 134C;] [F276(ie) assessing the security of a public electronic communications network or a

public electronic communications service; (if) assessing the availability of a public electronic communications network; (ig) identifying electronic communications apparatus that is suitable for shared

use;] (j) statistical purposes connected with the carrying out of any of OFCOM’s

functions under this Chapter.

[F277(3A) The descriptions of information that a person may be required to provide under subsection (1) include, in particular—

(a) information concerning future developments of an electronic communications network or electronic communications service that could have an impact on the wholesale services made available by the person to competitors, and

(b) if a market power determination made in relation to a wholesale market is in force in the person’s case, accounting data relating to any retail market associated with the wholesale market.]

(4) A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.

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(5) The powers in this section are subject to the limitations in section 137.]

Textual Amendments F269 Words in s. 135 heading substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 85(3),

118(2) F270 S. 135(1) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 85(2), 118(2) F271 Words in s. 135(3)(f) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 1(8), 118(2) F272 S. 135(3)(h) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 79(a)(i) (with Sch. 3 para. 2) F273 S. 135(3)(ia)(ib) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 16(2), 47(1) F274 S. 135(3)(ic)(id) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 1(2), 47(1) F275 S. 135(3)(ica) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 82(4), 118(2) F276 S. 135(3)(ie)-(ig) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 79(a)(ii) (with Sch. 3 para. 2) F277 S. 135(3A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 79(b) (with Sch. 3 para. 2)

Commencement Information I246 S. 135 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I247 S. 135 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

136 Information required for related purposes

(1) OFCOM may require— (a) a communications provider, or (b) a person who makes associated facilities available to others,

to provide OFCOM with all such information as they consider necessary for the purpose [F278 of carrying out comparative overviews under section 134D ] .

F279(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) OFCOM may also require— (a) a communications provider, or (b) a person who makes associated facilities available to others,

to provide them, for use for such statistical purposes as they think fit, with information relating to any electronic communications network, electronic communications service or associated facilities.

(4) A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.

(5) The powers in this section are subject to the limitations in section 137.

Textual Amendments F278 Words in s. 136(1) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 83(3)(a), 118(2) F279 S. 136(2) omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 83(3)(b), 118(2)

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team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Commencement Information I248 S. 136 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I249 S. 136 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

137 Restrictions on imposing information requirements

(1) This section limits the purposes for which, and manner in which, information may be required under sections 135 and 136.

(2) OFCOM are not to require the provision of information for the purpose of ascertaining whether a contravention of a general condition has occurred, or is occurring, unless—

(a) the requirement is imposed for the purpose of investigating a matter about which OFCOM have received a complaint;

(b) the requirement is imposed for the purposes of an investigation that OFCOM have decided to carry out into whether or not the general condition in question has been complied with;

(c) the condition in question is one which OFCOM have reason to suspect is one that has been or is being contravened; F280...

(d) the condition in question is one falling within section 51(1)(d)[F281; or (e) the condition in question is one relating to the effective and efficient use of

telephone numbers.]

[F282(2A) OFCOM are not to require the provision of information for a purpose specified in section 135(3)(ie) or (if) unless—

(a) the requirement is imposed for the purpose of investigating a matter about which OFCOM have received a complaint;

(b) the requirement is imposed for the purposes of an investigation that OFCOM have decided to carry out into whether or not an obligation under section 105A has been complied with; or

(c) OFCOM have reason to suspect that an obligation under section 105A has been or is being contravened.]

(3) OFCOM are not to require the provision of information under section 135 or 136 except—

(a) by a demand for the information that describes the required information and sets out OFCOM’s reasons for requiring it; and

(b) where the making of a demand for the information is proportionate to the use to which the information is to be put in the carrying out of OFCOM’s functions.

(4) The reasons for requiring information for statistical purposes under section 135 or 136 must set out the statistical purposes for which the information is required.

(5) Except in the case of a demand made in the manner authorised by subsection (6), a demand for information required under section 135 or 136 must be contained in a notice served on the person from whom the information is required.

(6) In the case of information required by OFCOM for the purpose of ascertaining who is liable to charges under section 38, the demand may—

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(a) be made by being published in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who are described in the demand as the persons from whom the information is required; and

(b) take the form of a general demand for a person so described to provide information when specified conditions relevant to his liability to such charges are satisfied in his case.

Textual Amendments F280 Word in s. 137(2)(c) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 80(a)(i) (with Sch. 3 para. 2) F281 S. 137(2)(e) and word inserted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 80(a)(ii) (with Sch. 3 para. 2) F282 S. 137(2A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 80(b) (with Sch. 3 para. 2)

Commencement Information I250 S. 137 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I251 S. 137 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F283137AInformation required from communications providers

(1) OFCOM may require a communications provider— (a) to publish any information held by the provider, or (b) to provide any such information to OFCOM for publication by OFCOM.

(2) The information that OFCOM may require the communications provider to publish or provide under subsection (1) includes information that OFCOM require the provider to produce, generate or obtain for that purpose.

(3) For that purpose OFCOM may, in particular, require the communications provider— (a) to collect or retain any information that the provider would not otherwise

collect or retain, (b) to process, collate or analyse any information held by the provider, or (c) to answer any questions.

(4) The power conferred by this section may be exercised only— (a) in connection with OFCOM's functions—

(i) under Part 1, so far as relating to electronic communications, or (ii) under this Chapter, and

(b) in such a way as is proportionate to the use to which the information is to be put in connection with those functions.

(5) The power conferred by this section is to be exercised by a demand, contained in a notice served on the communications provider, that—

(a) describes the information required to be published or provided, and (b) sets out OFCOM's reasons for requiring it to be published or provided.

(6) Before serving the notice on the communications provider, OFCOM must—

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(a) serve a draft of the notice on the provider and inform the provider of the period for making representations, and

(b) consider any representations made by the provider within that period which— (i) identify restrictions on the disclosure or publication of information

that would or might prevent the provider from complying with the notice, or

(ii) otherwise relate to the practicability of complying with it.

(7) The communications provider must publish or provide the information required by the notice in such manner and form, in accordance with such other requirements, and within such reasonable period, as may be specified by OFCOM.

(8) Where OFCOM publish anything provided to them pursuant to subsection (1)(b) they must do so in such manner and form as they consider appropriate.

Textual Amendments F283 Ss. 137A, 137B inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(2), 118(2)

137B Section 137A: confidential matters

(1) In exercising functions under section 137A, OFCOM must have regard to the need to exclude from publication, so far as that is practicable, the matters which are confidential in accordance with subsections (2) and (3).

(2) A matter is confidential under this subsection 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 subsection 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.]

Textual Amendments F283 Ss. 137A, 137B inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(2), 118(2)

138 Notification of contravention of information requirements

(1) Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a requirement imposed under section [F284135, 136 or 137A], they may give that person a notification under this section.

(2) A notification under this section is one which— (a) sets out the determination made by OFCOM; (b) specifies the requirement and contravention in respect of which that

determination has been made; F285... [F286(c) specifies the period during which the person notified has an opportunity to

make representations;

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[F287(d) specifies what the person must do in order to comply with the requirement;] (e) specifies any penalty which OFCOM are minded to impose in accordance

with section 139; and (f) where the contravention is serious, specifies any direction which OFCOM are

minded to give under section 140.] F288(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F288(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F288(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F288(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F288(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) A notification under this section— (a) may be given in respect of more than one contravention; and (b) if it is given in respect of a continuing contravention, may be given in respect

of any period during which the contravention has continued.

(9) Where a notification under this section has been given to a person in respect of a contravention of a requirement, OFCOM may give a further notification in respect of the same contravention of that requirement if, and only if—

(a) the contravention is one occurring after the time of the giving of the earlier notification;

(b) the contravention is a continuing contravention and the subsequent notification is in respect of so much of a period as falls after a period to which the earlier notification relates; or

(c) the earlier notification has been withdrawn without a penalty having been imposed in respect of the notified contravention.

[F289(9A) OFCOM may not give a person a notification under this section in respect of a contravention of a requirement imposed under section 135(3)(ig) if the information required was previously provided by the person to OFCOM within the period of 6 months ending with the day on which the requirement was imposed.]

F290(10) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F284 Words in s. 138(1) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(3)(a), 118(2) F285 Word in s. 138(2)(b) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 81(a) (with Sch. 3 paras. 2, 18) F286 S. 138(2)(c)-(f) substituted for s. 138(2)(c) (26.5.2011) by The Electronic Communications and

Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 81(a) (with Sch. 3 paras. 2, 18)

F287 S. 138(2)(d) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(3)(b), 118(2) F288 S. 138(3)-(7) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 81(b) (with Sch. 3 paras. 2, 18) F289 S. 138(9A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 81(c) (with Sch. 3 paras. 2, 18) F290 S. 138(10) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 81(b) (with Sch. 3 paras. 2, 18)

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Modifications etc. (not altering text) C23 Ss. 138-139A applied (with modifications) (31.7.2016) by The Communications (Access to

Infrastructure) Regulations 2016 (S.I. 2016/700), regs. 1, 17(6), (7)

Commencement Information I252 S. 138 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I253 S. 138 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

139 Penalties for contravention of information requirements

[F291(1) This section applies where a person is given a notification under section 138 which specifies a proposed penalty.]

(2) OFCOM may [F292specify a penalty] if— F293(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F293(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) no proceedings for an offence under section 144 have been brought against the notified person in respect of the contravention.

(3) Where a notification under section 138 relates to more than one contravention, a separate penalty may be [F294specified] in respect of each contravention.

(4) Where such a notification relates to a continuing contravention, no more than one penalty may be [F295specified] in respect of the period of contravention specified in the notification.

[F296(4A) But, in relation to a continuing contravention, a penalty may be specified in respect of each day on which the contravention continues after—

(a) the giving of a confirmation decision under section 139A(4)(c) which requires immediate action; or

(b) the expiry of any period specified in the confirmation decision for complying with a requirement so specified.

(4B) The amount of a penalty under subsection (4A) is to be such amount not exceeding £500 per day as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.]

(5) The amount of [F297any other penalty notified] under this section is to be such amount not exceeding [F298£2,000,000] as OFCOM determine to be both—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.

F299(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F299(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F299(8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(9) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (5).

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(10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Textual Amendments F291 S. 139(1) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 82(a) (with Sch. 3 paras. 2, 18) F292 Words in s. 139(2) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 82(b) (with Sch. 3 paras. 2, 18) F293 S. 139(2)(a)(b) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 82(c) (with Sch. 3 paras. 2, 18) F294 Word in s. 139(3) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 82(d) (with Sch. 3 paras. 2, 18) F295 Word in s. 139(4) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 82(d) (with Sch. 3 paras. 2, 18) F296 S. 139(4A)(4B) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 82(e) (with Sch. 3 paras. 2, 18) F297 Words in s. 139(5) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 82(f) (with Sch. 3 paras. 2, 18) F298 Word in s. 139(5) substituted (13.7.2011) by The Communications Act 2003 (Maximum Penalty for

Contravention of Information Requirements) Order 2011 (S.I. 2011/1773), arts. 1, 2(1) (with art. 2(2)) F299 S. 139(6)-(8) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 82(g) (with Sch. 3 paras. 2, 18)

Modifications etc. (not altering text) C23 Ss. 138-139A applied (with modifications) (31.7.2016) by The Communications (Access to

Infrastructure) Regulations 2016 (S.I. 2016/700), regs. 1, 17(6), (7)

Commencement Information I254 S. 139 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I255 S. 139 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F300139A.Enforcement of notification under section 138

(1) This section applies where— (a) a person has been given a notification under section 138; (b) OFCOM have allowed the person an opportunity to make representations

about the matters notified; and (c) the period allowed for the making of representations has expired.

(2) OFCOM may— (a) give the person a decision (a “confirmation decision”) confirming the

imposition of requirements on the person, or the giving of a direction to the person, or both, in accordance with the notification under section 138; or

(b) inform the person that they are satisfied with the person’s representations and that no further action will be taken.

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(3) OFCOM may not give a confirmation decision to a person unless, after considering any representations, they are satisfied that the person has, in one or more of the respects notified, been in contravention of a requirement notified under section 138.

(4) A confirmation decision— (a) must be given to the person without delay; (b) must include reasons for the decision; (c) may require immediate action by the person to comply with a requirement

notified under section 138(2)(d), or may specify a period within which the person must comply with the requirement; and

(d) may require the person to pay— (i) the penalty specified in the notification under section 138, or

(ii) such lesser penalty as OFCOM consider appropriate in the light of the person’s representations or steps taken by the person to comply with the condition or remedy the consequences of the contravention,

and may specify the period within which the penalty is to be paid.

(5) It is the duty of the person to comply with any requirement imposed by a confirmation decision.

(6) That duty is 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; or (c) for any other appropriate remedy or relief.

(7) A penalty imposed by a confirmation decision— (a) must be paid to OFCOM; and (b) if not paid within the period specified by them, is to be recoverable by them

accordingly.

Textual Amendments F300 Ss. 139A-139C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 83 (with Sch. 3 paras. 2, 18)

Modifications etc. (not altering text) C23 Ss. 138-139A applied (with modifications) (31.7.2016) by The Communications (Access to

Infrastructure) Regulations 2016 (S.I. 2016/700), regs. 1, 17(6), (7)

139B. Power to deal with urgent cases

(1) This section applies where OFCOM determine— (a) that they are entitled to give a notification under section 138 with respect to a

contravention by a person (“P”) of a requirement imposed under section 135 or 136;

(b) that there are reasonable grounds for suspecting that the case is an urgent case; and

(c) that the urgency of the case makes it appropriate for OFCOM to take action under this section.

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(2) A case is an urgent case for the purposes of this section if the contravention has resulted in, or creates an immediate risk of—

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

(b) serious economic or operational problems for persons (other than P) who are communications providers or persons who make associated facilities available; or

(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

(3) OFCOM may give P a direction— (a) that the entitlement of P to provide electronic communications networks or

electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

(b) that that entitlement is restricted in the respects set out in the direction.

(4) Subsections (3) to (6) of section 140 apply in relation to a direction under subsection (3) as they apply in relation to a direction under section 140.

Textual Amendments F300 Ss. 139A-139C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 83 (with Sch. 3 paras. 2, 18)

139C. Confirmation of direction under section 139B

(1) As soon as reasonably practicable after giving a direction under section 139B(3), OFCOM must give the person to whom it is given—

(a) an opportunity to make representations to them about the grounds on which it was given and its effect; and

(b) an opportunity to propose steps to remedy the situation.

(2) As soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—

(a) whether the contravention providing the grounds for the giving of the direction did occur; and

(b) whether the circumstances made it an urgent case justifying the giving of the direction.

(3) The period of 3 months mentioned in subsection (2) may be extended by up to 3 months if OFCOM—

(a) require additional time to consider representations received; or (b) decide that it is necessary to obtain additional information from the person in

order to make a determination under subsection (2).

(4) If OFCOM decide that the contravention did occur and that the direction was justified, they may confirm the direction.

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(5) If not, they must exercise their power to revoke it.

(6) As soon as reasonably practicable after deciding whether to confirm the direction, OFCOM must notify the person to whom it was given of their decision.]

Textual Amendments F300 Ss. 139A-139C inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 83 (with Sch. 3 paras. 2, 18)

140 Suspending service provision for information contraventions

(1) OFCOM may give a direction under this section to a person who is a communications provider or who makes associated facilities available (“the contravening provider”) if they are satisfied—

(a) that he is or has been in [F301serious or repeated] contravention of requirements imposed under sections [F302135, 136 and 137A, or any] or either of them;

(b) the requirements are not requirements imposed for purposes connected with the carrying out of OFCOM’s functions in relation to SMP apparatus conditions;

(c) [F303in the case of a repeated contravention,] that an attempt, by the imposition of penalties [F304or the giving of notifications under section 138 and confirmation decisions under section 139A, or both,] or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements has failed; and

[F305(d) that the giving of the direction is appropriate and proportionate to the contravention in respect of which it is given.]

(2) A direction under this section is— (a) a direction that the entitlement of the contravening provider to provide

electronic communications networks or electronic communications services, or to make associated facilities available, is suspended (either generally or in relation to particular networks, services or facilities); or

(b) a direction that that entitlement is restricted in the respects set out in the direction.

(3) A direction under this section— (a) must specify the networks, services and facilities to which it relates; and (b) except so far as it otherwise provides, takes effect for an indefinite period

beginning with the time at which it is notified to the person to whom it is given.

(4) A direction under this section— (a) in providing for the effect of a suspension or restriction to be postponed, may

provide for it to take effect only at a time determined by or in accordance with the terms of the direction; and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the contravening provider as appear to OFCOM to be appropriate for the purpose of protecting that provider’s customers.

(5) Those conditions may include a condition requiring the making of payments—

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(a) by way of compensation for loss or damage suffered by the contravening provider’s customers as a result of the direction; or

(b) in respect of annoyance, inconvenience or anxiety to which they have been put in consequence of the direction.

(6) If OFCOM consider it appropriate to do so (whether or not in consequence of any representations or proposals made to them), they may revoke a direction under this section or modify its conditions—

(a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such networks, services or facilities, or parts

of a network, service or facility, as they may determine.

(7) For the purposes of this section there are repeated contraventions by a person of requirements imposed under sections [F306135, 136 and 137A, or any] of them, to the extent that—

[F307(a) in the case of a previous notification of a contravention given to that person under section 138, OFCOM have given a confirmation decision to that person under section 139A(2) in respect of the contravention; and

(b) in the period of 24 months following the giving of that confirmation decision, one or more further confirmation decisions have been given to the person in respect of contraventions of numbering conditions;]

and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different requirements or of requirements under different sections.

Textual Amendments F301 Words in s. 140(1)(a) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 84(a)(i) (with Sch. 3 paras. 2, 18, 19)

F302 Words in s. 140(1)(a) substituted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 86(4), 118(2) (with s. 9(13))

F303 Words in s. 140(1)(c) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 84(a)(ii) (with Sch. 3 paras. 2, 18, 19)

F304 Words in s. 140(1)(c) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 84(a)(ii) (with Sch. 3 paras. 2, 18, 19)

F305 S. 140(1)(d) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 84(a)(iii) (with Sch. 3 paras. 2, 18, 19)

F306 Words in s. 140(7) substituted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 86(4), 118(2) (with s. 9(13))

F307 S. 140(7)(a)(b) substituted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 84(b) (with Sch. 3 paras. 2, 18, 19)

Commencement Information I256 S. 140 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I257 S. 140 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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141 Suspending apparatus supply for information contraventions

(1) OFCOM may give a direction under this section to a person who supplies electronic communications apparatus (“the contravening supplier”) if they are satisfied—

(a) that he is or has been in serious and repeated contravention of requirements imposed under section 135;

(b) that an attempt, by the imposition of penalties under section 139 or the bringing of proceedings for an offence under section 144, to secure compliance with the contravened requirements has failed; and

(c) that the giving of the direction is appropriate and proportionate to the seriousness (when repeated as they have been) of the contraventions.

(2) A direction under this section is— (a) a direction to the contravening supplier to cease to act as a supplier of

electronic communications apparatus (either generally or in relation to apparatus of a particular description); or

(b) a direction imposing such restrictions as may be set out in the direction on the supply by that supplier of electronic communications apparatus (either generally or in relation to apparatus of a particular description).

(3) A direction under this section takes effect, except so far as it otherwise provides, for an indefinite period beginning with the time at which it is notified to the person to whom it is given.

(4) A direction under this section— (a) may provide for a prohibition or restriction to take effect only at a time

determined by or in accordance with the terms of the direction; and (b) in connection with a prohibition or restriction contained in the direction or

with the postponement of its effect, may impose such conditions on the contravening supplier as appear to OFCOM to be appropriate for the purpose of protecting that supplier’s customers.

(5) Those conditions may include a condition requiring the making of payments— (a) by way of compensation for loss or damage suffered by the contravening

supplier’s customers as a result of the direction; or (b) in respect of annoyance, inconvenience or anxiety to which they have been

put in consequence of the direction.

(6) If OFCOM consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction under this section or modify its conditions—

(a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such apparatus or descriptions of apparatus

as they may determine.

(7) For the purposes of this section contraventions by a person of requirements imposed under section 135 are repeated contraventions if—

(a) in the case of a previous notification given to that person under section 138, OFCOM have determined for the purposes of section 139(2) that such a contravention did occur; and

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(b) in the period of twelve months following the day of the making of that determination, one or more further notifications have been given to that person in respect of contraventions of such requirements;

and for the purposes of this subsection it shall be immaterial whether the notifications related to the same contravention or to different contraventions of the same or different requirements.

Commencement Information I258 S. 141 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I259 S. 141 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

142 Procedure for directions under ss. 140 and 141

(1) Except in an urgent case, [F308or a case where a proposed direction has been notified to a person in accordance with section 138(2)(f)] OFCOM are not to give a direction under section 140 or 141 unless they have—

(a) notified the contravening provider or contravening supplier of the proposed direction and of the conditions (if any) which they are proposing to impose by that direction;

(b) provided him with an opportunity of making representations about the proposals and of proposing steps for remedying the situation; and

(c) considered every representation and proposal made to them during the period allowed by them for the contravening provider or the contravening supplier to take advantage of that opportunity.

[F309(2A) That period must be— (a) in relation to a direction under section 140, such reasonable period as OFCOM

may determine, and (b) in relation to a direction under section 141, a period ending not less than one

month after the day of the giving of the notification.]

(3) As soon as practicable after giving a direction under section 140 or 141 in an urgent case, OFCOM must provide the contravening provider or contravening supplier with an opportunity of—

(a) making representations about the effect of the direction and of any of its conditions; and

(b) proposing steps for remedying the situation.

[F310(3A) In relation to a direction under section 140 in an urgent case, as soon as practicable after the period allowed by OFCOM for making those representations has ended (and in any event within 3 months beginning with the day on which the direction was given), they must determine—

(a) whether the contravention providing the grounds for the giving of the direction did occur; and

(b) whether the circumstances made it an urgent case justifying the giving of the direction.

(3B) The period of 3 months mentioned in subsection (3A) may be extended by up to 3 months if OFCOM—

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(a) require additional time to consider representations received; or (b) decide that it is necessary to obtain additional information from the person in

order to make a determination under subsection (3A).]

(4) A case is an urgent case for the purposes of this section if OFCOM— (a) consider that it would be inappropriate, because the contraventions in question

fall within subsection (5), to allow time, before giving a direction under section 140 or 141, for the making and consideration of representations; and

(b) decide for that reason to act in accordance with subsection (3), instead of subsection (1).

(5) The contraventions fall within this subsection if they have resulted in, or create an immediate risk of—

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

(b) serious economic or operational problems for persons (apart from the contravening provider or contravening supplier) who are communications providers or persons who make associated facilities available; or

(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities.

(6) In this section— “contravening provider” has the same meaning as in section 140; and “contravening supplier” has the same meaning as in section 141.

Textual Amendments F308 Words in s. 142(1) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 85(a) (with Sch. 3 paras. 2, 18, 19) F309 S. 142(2A) substituted for s. 142(2) (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 85(b) (with Sch. 3 paras. 2, 18, 19)

F310 S. 142(3A)(3B) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 85(c) (with Sch. 3 paras. 2, 18, 19)

Commencement Information I260 S. 142 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I261 S. 142 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

143 Enforcement of directions under ss. 140 and 141

(1) A person is guilty of an offence if he provides an electronic communications network or electronic communications service, or makes available any associated facility—

(a) while his entitlement to do so is suspended by a direction under section 140; or (b) in contravention of a restriction contained in such a direction.

(2) A person is guilty of an offence if he supplies electronic communications apparatus— (a) while prohibited from doing so by a direction under section 141; or (b) in contravention of a restriction contained in such a direction.

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(3) A person guilty of an offence under this section shall be liable— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine.

[F311(4) Sections 96A to 99 apply in relation to a contravention of conditions imposed by a direction under section 139B or 140 as they apply in relation to a contravention of conditions set under section 45, other than SMP apparatus conditions.

(5) Sections 94 to 96 and 97 to 99 apply in relation to a contravention of conditions imposed by a direction under section 141 as they apply in relation to a contravention of SMP apparatus conditions.]

Textual Amendments F311 S. 143(4)(5) substituted for s. 143(4) (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 86 (with Sch. 3 paras. 2, 18, 19)

Commencement Information I262 S. 143 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I263 S. 143 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

144 Offences in connection with information requirements

(1) A person who fails to provide information in accordance with a requirement of OFCOM under section 135 or 136 [F312, or who contravenes a requirement imposed under section 137A,] is guilty of an offence and shall be liable—

(a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine.

(2) In proceedings against a person for an offence under subsection (1) it shall be a defence for that person to show—

(a) that it was not reasonably practicable for him to comply with the requirement within the period specified by OFCOM; but

(b) that he has taken all reasonable steps to [F313comply with the requirement] after the end of that period.

(3) A person is guilty of an offence if— (a) in pursuance of any requirement under section [F314135, 136 or 137A], he

provides [F315or publishes] any information that is false in any material particular; and

(b) at the time he provides [F315or publishes] it, he either knows it to be false or is reckless as to whether or not it is false.

(4) A person guilty of an offence under subsection (3) 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.

(5) Proceedings for an offence under subsection (1) may be brought in respect of a contravention by a person of a requirement imposed under section 135 or 136 only if—

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(a) OFCOM have given the person a notification under section 138 in respect of that contravention;

[F316(b) a confirmation decision has been given under section 139A in respect of that requirement and the period allowed under that decision has expired without the requirement have been complied with; and]

(c) OFCOM have not imposed a financial penalty under section 139 in respect of that contravention.

Textual Amendments F312 Words in s. 144(1) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(5)(a), 118(2) F313 Words in s. 144(2)(b) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(5)(b),

118(2) F314 Words in s. 144(3) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(5)(c)(i), 118(2) F315 Words in s. 144(3) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(5)(c)(ii), 118(2) F316 S. 144(5)(b) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(5)(d), 118(2)

Commencement Information I264 S. 144 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I265 S. 144 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

145 Statement of policy on information gathering

(1) It shall be the duty of OFCOM to prepare and publish a statement of their general policy with respect to—

(a) the exercise of their powers under sections [F317 135, 136 and 137A ] ; and (b) the uses to which they are proposing to put information obtained under [F318

sections 135 and 136 ] .

(2) OFCOM may from time to time revise that statement as they think fit.

(3) Where OFCOM make or revise their statement of policy under this section, they must publish that statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(4) It shall be the duty of OFCOM, in exercising the powers conferred on them by sections 135 to 144 to have regard to the statement for the time being in force under this section.

Textual Amendments F317 Words in s. 145(1)(a) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(6)(a),

118(2) F318 Words in s. 145(1)(b) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(6)(b),

118(2)

Commencement Information I266 S. 145 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I267 S. 145 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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146 Provision of information by OFCOM

(1) OFCOM must comply with a request made by a person for the purposes of this section—

(a) to notify the person whether or not a notification is required to be submitted by him under section 33;

(b) to notify the person whether a notification submitted by him for the purposes of that section satisfies the requirements of this Chapter;

(c) to provide the person with such information about his rights as may be necessary for the purpose of facilitating the negotiation by him of his right to network access; or

(d) to provide the person with such information as they consider necessary to enable the applicant to apply for a direction under section 106 to be made in his case.

(2) A request for the purposes of this section must be made in such manner as OFCOM may require.

(3) OFCOM are not required to comply with a request under this section if (without having been asked to do so) they have already given that person the notification or information for which he is asking.

(4) Any notification or information which under subsection (1) must be given or provided by OFCOM must be given or provided before the end of the period of one week beginning with the day on which the request for the notification or information was made to OFCOM.

Commencement Information I268 S. 146 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I269 S. 146 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F319146A.Rights of third parties to use information without charge

(1) Any person has a right to use, free of charge, information published by a communications provider if the use is for the purpose specified in subsection (2).

(2) That purpose is to sell or make available an interactive guide or other technique for evaluating the cost of alternative usage patterns in relation to electronic communications services.]

Textual Amendments F319 S. 146A inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 88 (with Sch. 3 para. 2)

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Abolition of telecommunications licensing etc.

147 Repeal of provisions of Telecommunications Act 1984

The following provisions of the Telecommunications Act 1984 (c. 12) shall cease to have effect—

(a) sections 5 to 8 (licensing provisions); (b) sections 9 to 11 (public telecommunications systems); (c) sections 12 to 15 (modification of licences); (d) sections 16 to 19 (enforcement of licences); and (e) sections 27A to 27L (standards of performance of designated public

telecommunications operators).

Commencement Information I270 S. 147 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I271 S. 147 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Local authority powers in relation to networks and services

148 Powers of local authorities in connection with networks

(1) A local authority may borrow money for the purpose of providing a public electronic communications network or public electronic communications service.

(2) A local authority may— (a) provide a public electronic communications network part of which is outside

their area; and (b) provide a public electronic communications service even if some of the

persons to whom they provide the service are outside their area.

(3) In this section, a “local authority” means— (a) in relation to England, a London borough council or a district council; (b) in relation to Wales, a county council or a county borough council; (c) in Scotland, a council constituted under section 2 of the Local Government

etc. (Scotland) Act 1994 (c. 39).

Commencement Information I272 S. 148 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I273 S. 148 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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Grants for networks and services in Northern Ireland

149 Grants by Department of Enterprise, Trade and Investment

(1) The Department of Enterprise, Trade and Investment may, in accordance with this section, make payments to persons engaged in, or in commercial activities connected with—

(a) the provision of electronic communications networks and electronic communications services in Northern Ireland; or

(b) improving the extent, quality and reliability of such networks or services.

(2) A payment shall not be made under this section unless in the opinion of the Department of Enterprise, Trade and Investment—

(a) the making of the payment is likely to achieve— (i) one or more of the purposes set out in subsection (1); and

(ii) any other purposes prescribed by regulations made by that Department with the approval of the Department of Finance and Personnel; and

(b) the amount of the payment is reasonable having regard to all the circumstances.

(3) Payments under this section shall— (a) be of such amounts, and (b) be made subject to such conditions (including conditions as to repayment),

as the Department of Enterprise, Trade and Investment may determine.

(4) This section extends only to Northern Ireland.

Commencement Information I274 S. 149 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I275 S. 149 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

150 Grants by district councils

(1) This section applies where a district council in Northern Ireland consider that it would be for the benefit of their area—

(a) for a public electronic communications network or electronic communications service to be provided by a particular person;

(b) for facilities to be made available by a particular person for the purposes of, or in connection with, the provision of such a network or service; or

(c) for such a network or service that is being provided by a particular person, or for any such facilities that are being so made available by a particular person, to continue to be provided or made available.

(2) The district council may— (a) undertake to pay to that person, and (b) pay him,

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whatever sums they think appropriate for, or towards, compensating him for losses sustained in the provision of the network or service or in making the facilities available.

(3) For the purposes of this section it is immaterial— (a) in the case of a network, whether any part of the network is situated in the

council’s area; and (b) in the case of a service or facility, whether any of the persons to whom the

service or facility is provided or made available are in that area.

Commencement Information I276 S. 150 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I277 S. 150 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Interpretation of Chapter 1

[F320150A.Proposals of EU significance

(1) This section applies in relation to a proposal— (a) to set, modify or revoke a condition under section 45; (b) to give a direction, approval or consent for the purposes of such a condition; (c) to modify or withdraw such a direction, approval or consent; (d) to identify a market for the purposes of making or reviewing a market power

determination; or (e) to make or review a market power determination.

(2) The proposal is of EU significance for the purposes of this Chapter if— (a) paragraph (3) of Article 7 of the Framework Directive applies, or would apply

but for paragraph (9) of that Article, in relation to it; (b) (in a case within paragraph (a), (b) or (c) of subsection (1)) the condition is

an access-related condition falling within section 73(2) or an SMP services condition;

(c) (in a case within paragraph (d) or (e) of subsection (1)) the market in question is a services market; and

(d) in OFCOM’s opinion it would affect trade between member States.]

Textual Amendments F320 S. 150A inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 89 (with Sch. 3 para. 2)

151 Interpretation of Chapter 1

(1) In this Chapter— “the Access Directive” means Directive 2002/19/EC of the European

Parliament and of the Council on access to, and interconnection of, electronic communications networks and associated facilities [F321, as amended by Directive 2009/140/EC of the European Parliament and of the Council] ;

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“access-related condition” means a condition set as an access-related condition under section 45;

“allocation” and “adoption”, in relation to telephone numbers, and cognate expressions, are to be construed in accordance with section 56;

“apparatus market”, in relation to a market power determination, is to be construed in accordance with section 46(9)(b);

“designated universal service provider” means a person who is for the time being designated in accordance with regulations under section 66 as a person to whom universal service conditions are applicable;

“electronic communications apparatus”— (a) in relation to SMP apparatus conditions and in section 141, means

apparatus that is designed or adapted for a use which consists of or includes the sending or receiving of communications or other signals (within the meaning of section 32) that are transmitted by means of an electronic communications network; and

(b) in all other contexts, has the same meaning as in the electronic communications code;

“the electronic communications code” has the meaning given by section 106(1);

“end-user”, in relation to a public electronic communications service, means—

(a) a person who, otherwise than as a communications provider, is a customer of the provider of that service;

(b) a person who makes use of the service otherwise than as a communications provider; or

(c) a person who may be authorised, by a person falling within paragraph (a), so to make use of the service;

“the Framework Directive” means Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services [F322, as amended by Directive 2009/140/EC of the European Parliament and of the Council] ;

“general condition” means a condition set as a general condition under section 45;

“interconnection” is to be construed in accordance with subsection (2); “market power determination” means—

(a) a determination, for the purposes of provisions of this Chapter, that a person has significant market power in an identified services market or an identified apparatus market, or

(b) a confirmation for such purposes of a market power determination reviewed on a further analysis under section 84 or 85;

“misuse”, in relation to an electronic communications network or electronic communications service, is to be construed in accordance with section 128(5) and (8), and cognate expressions are to be construed accordingly;

“network access” is to be construed in accordance with subsection (3); “persistent” and “persistently”, in relation to misuse of an electronic

communications network or electronic communications service, are to be construed in accordance with section 128(6) and (7);

“premium rate service” is to be construed in accordance with section 120(7);

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“privileged supplier condition” means a condition set as a privileged supplier condition under section 45;

“provider”, in relation to a premium rate service, is to be construed in accordance with section 120(9) to (12), and cognate expressions are to be construed accordingly;

“public communications provider” means— (a) a provider of a public electronic communications network; (b) a provider of a public electronic communications service; or (c) a person who makes available facilities that are associated facilities by

reference to a public electronic communications network or a public electronic communications service;

“public electronic communications network” means an electronic communications network provided wholly or mainly for the purpose of making electronic communications services available to members of the public;

“public electronic communications service” means any electronic communications service that is provided so as to be available for use by members of the public;

“regulatory authorities” is to be construed in accordance with subsection (5); “relevant international standards” means—

(a) any standards or specifications from time to time drawn up and published in accordance with Article 17 of the Framework Directive;

(b) the standards and specifications from time to time adopted by— (i) the European Committee for Standardisation,

(ii) the European Committee for Electrotechnical Standardisation; or (iii) the European Telecommunications Standards Institute; and

(c) the international standards and recommendations from time to time adopted by—

(i) the International Telecommunication Union; (ii) the International Organisation for Standardisation; or

(iii) the International Electrotechnical Committee; “service interoperability” means interoperability between different

electronic communications services; “services market”, in relation to a market power determination or market

identification, is to be construed in accordance with section 46(8)(a); “significant market power” is to be construed in accordance with section 78; “SMP condition” means a condition set as an SMP condition under

section 45, and “SMP services condition” and “SMP apparatus condition” are to be construed in accordance with subsections (8) and (9) of that section respectively;

“telephone number” has the meaning given by section 56(5); “the Universal Service Directive” means Directive 2002/22/EC of the

European Parliament and of the Council on universal service and users' rights relating to electronic communications networks and services [F323, as amended by Directive 2009/136/EC of the European Parliament and of the Council] ;

“universal service condition” means a condition set as a universal service condition under section 45;

“the universal service order” means the order for the time being in force under section 65.

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(2) In this Chapter references to interconnection are references to the linking (whether directly or indirectly by physical or logical means, or by a combination of physical and logical means) of one public electronic communications network to another for the purpose of enabling the persons using one of them to be able—

(a) to communicate with users of the other one; or (b) to make use of services provided by means of the other one (whether by the

provider of that network or by another person).

(3) In this Chapter references to network access are references to— (a) interconnection of public electronic communications networks; or (b) any services, facilities or arrangements which—

(i) are not comprised in interconnection; but (ii) are services, facilities or arrangements by means of which [F324a

person] is able, for the purposes of the provision of an electronic communications service (whether by him or by another), to make use of anything mentioned in subsection (4);

and references to providing network access include references to providing any such services, making available any such facilities or entering into any such arrangements.

(4) The things referred to in subsection (3)(b) are— (a) any electronic communications network or electronic communications service

provided by another communications provider; (b) any apparatus comprised in such a network or used for the purposes of such

a network or service; [F325(ba) any electronic communications apparatus;]

(c) any facilities made available by another that are associated facilities by reference to any network or service (whether one provided by that provider or by another);

(d) any other services or facilities which are provided or made available by another person and are capable of being used for the provision of an electronic communications service.

[F326(4A) In subsections (3)(b)(ii) and (4)(d), the references to an electronic communications service include the conveyance by means of an electronic communications network of signals, including an information society service or content service so conveyed.

(4B) In subsection (4A)— “content service” has the meaning given by section 32(7), and “information society service” has the meaning given by Article 2(a) of

Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.]

(5) References in this Chapter to the regulatory authorities of member States are references to such of the authorities of the member States as have been notified to the European Commission as the regulatory authorities of those States for the purposes of the Framework Directive.

(6) For the purposes of this Chapter, where there is a contravention of an obligation that requires a person to do anything within a particular period or before a particular time,

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that contravention shall be taken to continue after the end of that period, or after that time, until that thing is done.

(7) References in this Chapter to remedying the consequences of a contravention include references to paying an amount to a person—

(a) by way of compensation for loss or damage suffered by that person; or (b) in respect of annoyance, inconvenience or anxiety to which he has been put.

(8) In determining for the purposes of provisions of this Chapter whether a contravention is a repeated contravention for any purposes, a notification of a contravention under that provision shall be disregarded if it has been withdrawn before the imposition of a penalty in respect of the matters notified.

(9) For the purposes of this section a service is made available to members of the public if members of the public are customers, in respect of that service, of the provider of that service.

Textual Amendments F321 Words in s. 151(1) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 90(a)(i) (with Sch. 3 para. 2, 20) F322 Words in s. 151(1) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 90(a)(ii) (with Sch. 3 para. 2, 20) F323 Words in s. 151(1) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 90(a)(iii) (with Sch. 3 para. 2, 20) F324 Words in s. 151(3)(b)(ii) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 90(b) (with Sch. 3 para. 2) F325 S. 151(4)(ba) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 90(c) (with Sch. 3 para. 2) F326 S. 151(4A)(4B) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 90(d) (with Sch. 3 para. 2)

Commencement Information I278 S. 151 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I279 S. 151 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

CHAPTER 2

SPECTRUM USE

General functions relating to spectrum use

F327152 General functions of OFCOM in relation to radio spectrum

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Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

F327153 United Kingdom Plan for Frequency Authorisation

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I280 S. 153 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I281 S. 153 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F327154 Duties of OFCOM when carrying out spectrum functions

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Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I282 S. 154 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I283 S. 154 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F327155 Advisory service in relation to interference

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I284 S. 155 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F327156 Directions with respect to the radio spectrum

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Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I285 S. 156 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F327157 Procedure for directions under s. 156

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Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I286 S. 157 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Reservation of spectrum for multiplex use

F327158 Special duty in relation to television multiplexes

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I287 S. 158 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Recognised spectrum access

F327159 Grant of recognised spectrum access

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I288 S. 159 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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F327160 Effect of grant of recognised spectrum access

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I289 S. 160 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F327161 Charges in respect of grants of recognised spectrum access

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I290 S. 161 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F327162 Conversion into and from wireless telegraphy licences

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Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I291 S. 162 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Crown use of the radio spectrum

F327163 Payments for use of radio spectrum by the Crown

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

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Commencement Information I292 S. 163 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Limitations and exemptions applied to spectrum use

F327164 Limitations on authorised spectrum use

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I293 S. 164 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I294 S. 164 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F327165 Terms etc. of wireless telegraphy licences

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I295 S. 165 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I296 S. 165 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F327166 Exemption from need for wireless telegraphy licence

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Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I297 S. 166 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I298 S. 166 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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Award and transfer of licences

F327167 Bidding for wireless telegraphy licences

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I299 S. 167 in force at 18.9.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(2), Sch. 2 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I300 S. 167 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F327168 Spectrum trading

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I301 S. 168 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Variation and revocation of licences

F327169 Variation and revocation of wireless telegraphy licences

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I302 S. 169 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I303 S. 169 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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Wireless telegraphy register

F327170 Wireless telegraphy register

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I304 S. 170 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Information requirements

F327171 Information requirements in relation to wireless telegraphy licences

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I305 S. 171 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Criminal proceedings etc.

F327172 Contraventions of conditions for use of wireless telegraphy

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Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I306 S. 172 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I307 S. 172 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F327173 Meaning of “repeated contravention” in s. 172

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Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I308 S. 173 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I309 S. 173 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F327174 Procedure for prosecutions of wireless telegraphy offences

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I310 S. 174 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I311 S. 174 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F327175 Special procedure for contraventions by multiplex licence holders

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I312 S. 175 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F327176 Amount of penalty under s. 175

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Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I313 S. 176 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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F327177 “Relevant amount of gross revenue” for the purposes of s. 176

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Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I314 S. 177 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F327178 Proceedings for an offence relating to apparatus use

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Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I315 S. 178 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I316 S. 178 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F327179 Modification of penalties for certain wireless telegraphy offences

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I317 S. 179 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

PROSPECTIVE

F327180 Fixed penalties for certain wireless telegraphy offences

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

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F327181 Power of arrest

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I318 S. 181 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

F327182 Forfeiture etc. of restricted apparatus

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I319 S. 182 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Construction of 1949 Act

F327183 Modification of definition of “undue interference”

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I320 S. 183 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I321 S. 183 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F327184 Modification of definition of “wireless telegraphy”

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F327 Ss. 152-184 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

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team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Commencement Information I322 S. 184 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

CHAPTER 3

DISPUTES AND APPEALS

Disputes

185 Reference of disputes to OFCOM

(1) This section applies in the case of a dispute relating to the provision of network access if it is—

(a) a dispute between different communications providers; (b) a dispute between a communications provider and a person who makes

associated facilities available; (c) a dispute between different persons making such facilities available;

F328(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F328(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

[F329(1A) This section also applies in the case of a dispute relating to the provision of network access if—

(a) it is a dispute between a communications provider and a person who is identified, or is a member of a class identified, in a condition imposed on the communications provider under section 45; and

(b) the dispute relates to entitlements to network access that the communications provider is required to provide to that person by or under that condition.]

(2) This section also applies in the case of any other dispute if— (a) it relates to rights or obligations conferred or imposed by or under [F330a

condition set under section 45, or any of the enactments relating to the management of the radio spectrum] ;

(b) it is a dispute between different communications providers; and (c) it is not an excluded dispute.

(3) Any one or more of the parties to the dispute may refer it to OFCOM.

(4) A reference made under this section is to be made in such manner as OFCOM may require.

(5) The way in which a requirement under subsection (4)— (a) is to be imposed, or (b) may be withdrawn or modified,

is by a notice published in such manner as OFCOM consider appropriate for bringing the requirement, withdrawal or modification to the attention of the persons who, in their opinion, are likely to be affected by it.

(6) Requirements imposed under subsection (4) may make different provision for different cases.

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(7) A dispute is an excluded dispute for the purposes of subsection (2) if it is about— (a) obligations imposed on a communications provider by SMP apparatus

conditions; F331(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F331(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F331(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) For the purposes of this section— (a) the disputes that relate to the provision of network access include disputes as

to the terms or conditions on which it is or may be provided in a particular case; and

(b) the disputes that relate to an obligation include disputes as to the terms or conditions on which any transaction is to be entered into for the purpose of complying with that obligation.

Textual Amendments F328 S. 185(1)(d)(e) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 91(a) (with Sch. 3 para. 2) F329 S. 185(1A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 91(b) (with Sch. 3 para. 2) F330 Words in s. 185(2)(a) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 91(c) (with Sch. 3 para. 2) F331 S. 185(7)(b)-(d) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 91(d) (with Sch. 3 para. 2)

Commencement Information I323 S. 185 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I324 S. 185 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F332185A.Power of OFCOM to invite parties to refer dispute

OFCOM may invite any one or more of the parties to a dispute falling within section 185(1) to refer the dispute to OFCOM under section 185(3).]

Textual Amendments F332 S. 185A inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy Regulations

2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 92 (with Sch. 3 para. 2)

186 Action by OFCOM on dispute reference

(1) This section applies where a dispute is referred to OFCOM under and in accordance with section 185.

(2) OFCOM must decide whether or not it is appropriate for them to handle the dispute.

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[F333(2A) In relation to a dispute falling within subsection 185(1), OFCOM may in particular take into account their priorities and available resources in considering whether it is appropriate for them to handle the dispute.]

(3) [F334In relation to a dispute falling within section 185(1A) or (2),] Unless they consider—

(a) that there are alternative means available for resolving the dispute, (b) that a resolution of the dispute by those means would be consistent with the

Community requirements set out in section 4, and (c) that a prompt and satisfactory resolution of the dispute is likely if those

alternative means are used for resolving it, their decision must be a decision that it is appropriate for them to handle the dispute.

(4) As soon as reasonably practicable after OFCOM have decided— (a) that it is appropriate for them to handle the dispute, or (b) that it is not,

they must inform each of the parties to the dispute of their decision and of their reasons for it.

(5) The notification must state the date of the decision.

(6) [F335In relation to a dispute falling within section 185(1A) or (2),] Where— (a) OFCOM decide that it is not appropriate for them to handle the dispute, but (b) the dispute is not resolved by other means before the end of the four months

after the day of OFCOM’s decision, the dispute may be referred back to OFCOM by one or more of the parties to the dispute.

Textual Amendments F333 S. 186(2A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 93(a) (with Sch. 3 para. 2) F334 Words in s. 186(3) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 93(b) (with Sch. 3 para. 2) F335 Words in s. 186(6) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 93(b) (with Sch. 3 para. 2)

Commencement Information I325 S. 186 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I326 S. 186 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

187 Legal proceedings about referred disputes

(1) Where a dispute is referred or referred back to OFCOM under this Chapter, the reference is not to prevent—

(a) the person making it, (b) another party to the dispute, (c) OFCOM, or (d) any other person,

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from bringing, or continuing, any legal proceedings with respect to any of the matters under dispute.

(2) Nor is the reference or reference back to OFCOM under this Chapter of a dispute to prevent OFCOM from—

(a) giving a notification in respect of something that they have reasonable grounds for believing to be a contravention of any obligation imposed by or under any an enactment;

(b) exercising any of their other powers under any enactment in relation to a contravention of such an obligation; or

(c) taking any other step in preparation for or with a view to doing anything mentioned in the preceding paragraphs.

(3) If, in any legal proceedings with respect to a matter to which a dispute relates, the court orders the handling of the dispute by OFCOM to be stayed or sisted—

(a) OFCOM are required to make a determination for resolving the dispute only if the stay or sist is lifted or expires; and

(b) the period during which the stay or sist is in force must be disregarded in determining the period within which OFCOM are required to make such a determination.

(4) Subsection (1) is subject to section 190(8) and to any agreement to the contrary binding the parties to the dispute.

(5) In this section “legal proceedings” means civil or criminal proceedings in or before a court.

Commencement Information I327 S. 187 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I328 S. 187 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

188 Procedure for resolving disputes

(1) This section applies where— (a) OFCOM have decided under section 186(2) that it is appropriate for them to

handle a dispute; or (b) a dispute is referred back to OFCOM under section 186(6).

(2) OFCOM must— (a) consider the dispute; and (b) make a determination for resolving it.

(3) The procedure for the consideration and determination of the dispute is to be the procedure that OFCOM consider appropriate.

(4) In the case of a dispute referred back to OFCOM under section 186(6), that procedure may involve allowing the continuation of a procedure that has already been begun for resolving the dispute by alternative means.

(5) Except in exceptional circumstances and subject to section 187(3), OFCOM must make their determination no more than four months after the following day—

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(a) in a case falling within subsection (1)(a), the day of the decision by OFCOM that it is appropriate for them to handle the dispute; and

(b) in a case falling within subsection (1)(b), the day on which the dispute is referred back to them.

(6) Where it is practicable for OFCOM to make their determination before the end of the four month period, they must make it as soon in that period as practicable.

(7) OFCOM must— (a) send a copy of their determination, together with a full statement of their

reasons for it, to every party to the dispute; and (b) publish so much of their determination as (having regard, in particular, to the

need to preserve commercial confidentiality) they consider it appropriate to publish.

(8) The publication of information under this section must be in such manner as OFCOM consider appropriate for bringing it to the attention, to the extent that they consider appropriate, of members of the public.

Commencement Information I329 S. 188 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I330 S. 188 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

189 Disputes involving other member States

(1) This section applies where it appears to OFCOM that a dispute referred or referred back to them under this Chapter [F336(other than a dispute falling within section 185(1))] relates partly to a matter falling within the jurisdiction of the regulatory authorities of another member State.

(2) A dispute relates to matters falling within the jurisdiction of the regulatory authorities of another member State to the extent that—

(a) it relates to the carrying on of activities by one or both of the parties to the dispute in more than one member State or to activities carried on by different parties to the dispute in different member States; and

(b) the activities to which the dispute relates, so far as they are carried on in another member State, are carried on in the member State for which those authorities are the regulatory authorities.

(3) For the purposes of subsection (2) the activities that are carried on in a member State include anything done by means of an electronic communications network, or part of such a network, which is situated in that member State.

(4) Before taking any steps under this Chapter in relation to the reference or the dispute, OFCOM

[F337(a) must co-ordinate their efforts with the other regulatory authorities within whose jurisdiction the matter falls,

(b) may consult BEREC in order to bring about a consistent resolution of the dispute, and

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(c) may request BEREC to adopt an opinion as to the action to be taken to resolve the dispute.]

(5) It shall be the duty of OFCOM to secure that steps taken in relation to the reference or dispute (whether taken by them or by the other regulatory authorities) are, so far as practicable, agreed between OFCOM and those authorities.

[F338(5A) Where an opinion is received from BEREC in relation to the reference or dispute, it shall be the duty of OFCOM to secure that steps taken in relation to the reference or dispute take account of the opinion (whether the opinion was requested by OFCOM or by the other regulatory authorities).]

(6) Accordingly, section 188 is to have effect in relation to the reference as if the period for making a determination which is specified in subsection (5) of that section were such period (if any) as may be agreed between—

(a) OFCOM; and (b) the other regulatory authorities within whose jurisdiction the matter falls.

[F339(7) OFCOM must— (a) ensure, so far as practicable, that a period agreed under subsection (6) is

long enough for BEREC to provide an opinion, if one has been requested by OFCOM or by the other regulatory authorities, and

(b) agree to any necessary extension of the period if an opinion is requested from BEREC (by OFCOM or by the other regulatory authorities) after the period has been agreed.

(8) Subsection (7) does not apply if the dispute in question has resulted in, or creates an immediate risk of—

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

(b) serious economic or operational problems for persons who are communications providers or persons who make associated facilities available; or

(c) serious economic or operational problems for persons who make use of electronic communications networks, electronic communications services or associated facilities, or for other users of the radio spectrum.]

Textual Amendments F336 Words in s. 189(1) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 94(a) (with Sch. 3 para. 2) F337 S. 189(4)(a)(b)(c) substituted for words (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 94(b) (with Sch. 3 para. 2) F338 S. 189(5A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 94(c) (with Sch. 3 para. 2) F339 S. 189(7)(8) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 94(d) (with Sch. 3 para. 2)

Commencement Information I331 S. 189 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I332 S. 189 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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190 Resolution of referred disputes

(1) Where OFCOM make a determination for resolving a dispute referred to them under this Chapter, their only powers are those conferred by this section.

(2) Their main power (except in the case of a dispute relating to rights and obligations conferred or imposed by or under the enactments relating to the management of the radio spectrum) is to do one or more of the following—

(a) to make a declaration setting out the rights and obligations of the parties to the dispute;

(b) to give a direction fixing the terms or conditions of transactions between the parties to the dispute;

(c) to give a direction imposing an obligation, enforceable by the parties to the dispute, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM; and

(d) for the purpose of giving effect to a determination by OFCOM of the proper amount of a charge in respect of which amounts have been paid by one of the parties of the dispute to the other, to give a direction, enforceable by the party to whom the sums are to be paid, requiring the payment of sums by way of adjustment of an underpayment or overpayment.

[F340(2A) In relation to a dispute falling within section 185(1), OFCOM must exercise their powers under subsection (2) in the way that seems to them most appropriate for the purpose of securing—

(a) efficiency; (b) sustainable competition; (c) efficient investment and innovation; and (d) the greatest possible benefit for the end-users of public electronic

communications services.]

(3) Their main power in the excepted case is just to make a declaration setting out the rights and obligations of the parties to the dispute.

(4) Nothing in this section prevents OFCOM from exercising the following powers in consequence of their consideration under this Chapter of any dispute—

(a) their powers under Chapter 1 of this Part to set, modify or revoke general conditions, universal service conditions, access related conditions, privileged supplier conditions or SMP conditions;

(b) their powers to vary, modify or revoke wireless telegraphy licences or grants of recognised spectrum access;

(c) their power to make, amend or revoke [F341regulations under section 8 or 45 of the Wireless Telegraphy Act 2006] .

(5) In the case of a dispute referred back to OFCOM under section 186(6)— (a) OFCOM may, in making their determination, take account of decisions

already made by others in the course of an attempt to resolve the dispute by alternative means; and

(b) the determination made by OFCOM may include provision ratifying decisions so made.

(6) Where OFCOM make a determination for resolving a dispute, they may require a party to the dispute—

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(a) to make payments to another party to the dispute in respect of costs and expenses incurred by that other party in consequence of the reference of the dispute to OFCOM, or in connection with it; and

(b) to make payments to OFCOM in respect of costs and expenses incurred by them in dealing with the dispute.

[F342and may determine the amount of the costs and when the costs are to be paid.]

[F343(6A) OFCOM may not, under subsection (6)(a), require a party to the dispute to make payments to another party unless OFCOM have considered—

(a) the conduct of the party before and after the reference to OFCOM (including, in particular, whether any attempt has been made to resolve the dispute), and

(b) whether OFCOM has made a decision in the party’s favour in respect of the whole or a part of the dispute.

(6B) OFCOM may not, under subsection (6)(b), require payments to be made to them by a party to the dispute unless—

(a) the dispute relates to the rights and obligations of the parties to the dispute under the enactments relating to the management of the radio spectrum, or

(b) they have considered the matters referred to in subsection (6A)(a) and (b).] F344(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) A determination made by OFCOM for resolving a dispute referred or referred back to them under this Chapter binds all the parties to the dispute.

(9) Subsection (8) is subject to section 192.

Textual Amendments F340 S. 190(2A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 95(a) (with Sch. 3 para. 2) F341 Words in s. 190(4)(c) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 27 F342 Words in s. 190(6) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 95(b) (with Sch. 3 para. 2) F343 S. 190(6A)(6B) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 95(c) (with Sch. 3 para. 2) F344 S. 190(7) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 95(d) (with Sch. 3 para. 2)

Commencement Information I333 S. 190 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I334 S. 190 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

191 OFCOM’s power to require information in connection with dispute

(1) Where a dispute has been referred or referred back to OFCOM under this Chapter, they may require any person to whom subsection (2) applies to provide them with all such information as they may require for the purpose of—

(a) deciding whether it is appropriate for them to handle the dispute;

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team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

(b) determining whether it is necessary for them to consult the regulatory authorities of another member State; or

(c) considering the dispute and making a determination for resolving it.

(2) This subsection applies to— (a) a party to the dispute; and (b) a person who is not a party to the dispute but appears to OFCOM to have

information that is relevant to the matters mentioned in subsection (1)(a) to (c).

(3) A person required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by OFCOM.

(4) In fixing the period within which information is to be provided in accordance with a requirement under this section OFCOM must have regard, in particular, to—

(a) their obligation to make a determination for resolving the dispute within the period specified in section 188;

(b) the nature of the dispute; and (c) the information that is required.

(5) Sections 138 to 144 apply for the enforcement of a requirement under this section as they apply for the enforcement of requirements under section 135 or 136.

F345(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F345 S. 191(6) omitted (26.5.2011) by virtue of The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 96 (with Sch. 3 para. 2)

Commencement Information I335 S. 191 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I336 S. 191 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Appeals

192 Appeals against decisions by OFCOM, the Secretary of State etc.

(1) This section applies to the following decisions— (a) a decision by OFCOM under this Part [F346or any of Parts 1 to 3 of the Wireless

Telegraphy Act 2006] that is not a decision specified in Schedule 8; (b) a decision (whether by OFCOM or another) to which effect is given by a

direction, approval or consent given for the purposes of a provision of a condition set under section 45;

(c) a decision to which effect is given by the modification or withdrawal of such a direction, approval or consent;

(d) a decision by the Secretary of State to which effect is given by one of the following—

(i) a specific direction under section 5 that is not about the making of a decision specified in Schedule 8;

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(ii) a restriction or condition set by regulations under section 109; (iii) a direction to OFCOM under section 132; (iv) a specific direction under [F347section 5 of the Wireless Telegraphy

Act 2006] that is not about the making of a decision specified in Schedule 8.

[F348(e) a decision by the CMA to which effect is given by an order made under section 193A.]

(2) A person affected by a decision to which this section applies may appeal against it to the Tribunal.

(3) The means of making an appeal is by sending the Tribunal a notice of appeal in accordance with Tribunal rules.

(4) The notice of appeal must be sent within the period specified, in relation to the decision appealed against, in those rules.

(5) The notice of appeal must set out— (a) the provision under which the decision appealed against was taken; and (b) the grounds of appeal.

(6) The grounds of appeal must be set out in sufficient detail to indicate— (a) to what extent (if any) the appellant contends that the decision appealed

against was based on an error of fact or was wrong in law or both; and (b) to what extent (if any) the appellant is appealing against the exercise of a

discretion by OFCOM, by the Secretary of State [F349, by the CMA] or by another person.

(7) In this section and Schedule 8 references to a decision under an enactment— (a) include references to a decision that is given effect to by the exercise or

performance of a power or duty conferred or imposed by or under an enactment; but

(b) include references to a failure to make a decision, and to a failure to exercise a power or to perform a duty, only where the failure constitutes a failure to grant an application or to comply with any other form of request to make the decision, to exercise the power or to perform the duty;

and references in the following provisions of this Chapter to a decision appealed against are to be construed accordingly.

(8) For the purposes of this section and the following provisions of this Chapter a decision to which effect is given by the exercise or performance of a power or duty conferred or imposed by or under an enactment shall be treated, except where provision is made for the making of that decision at a different time, as made at the time when the power is exercised or the duty performed.

Textual Amendments F346 Words in s. 192(1)(a) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 28(a) F347 Words in s. 192(1)(d)(iv) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2),

Sch. 7 para. 28(b) F348 S. 192(1)(e) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch.

15 para. 43(2); S.I. 2014/416, art. 2(1)(f) (with Sch.)

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F349 Words in s. 192(6)(b) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 43(3); S.I. 2014/416, art. 2(1)(f) (with Sch.)

Commencement Information I337 S. 192 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I338 S. 192 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

193 Reference of price control matters to the [F350CMA]

(1) Tribunal rules must provide in relation to appeals under section 192(2) relating to price control that the price control matters arising in that appeal, to the extent that they are matters of a description specified in the rules, must be referred by the Tribunal to the [F351CMA] for determination.

(2) Where a price control matter is referred in accordance with Tribunal rules to the [F352CMA] for determination, [F353the determination of the matter is to be carried out on behalf of the CMA by a group constituted for the purpose by the chair of the CMA under Schedule 4 to the Enterprise and Regulatory Reform Act 2013, and [F354, having regard to the principles to be applied by the Tribunal under section 194A(2), is to be performed]]

(a) in accordance with the provision made by the rules; (b) in accordance with directions given to [F355the CMA] by the Tribunal in

exercise of powers conferred by the rules; and (c) subject to the rules and any such directions, using such procedure as the

[F356CMA] consider appropriate.

(3) The provision that may be made by Tribunal rules about the determination of a price control matter referred to the [F357CMA] in accordance with the rules includes provision about the period within which that matter is to be determined by [F358the CMA] .

(4) Where the [F359CMA] determines a price control matter in accordance with Tribunal rules, they must notify the Tribunal of the determination they have made.

(5) The notification must be given as soon as practicable after the making of the notified determination.

(6) Where a price control matter arising in an appeal is required to be referred to the [F360CMA] under this section, the Tribunal, in deciding the appeal F361..., must decide that matter in accordance with the determination of [F362the CMA] .

(7) Subsection (6) does not apply to the extent that the Tribunal decides, applying the principles applicable on an application for judicial review, that the determination of the [F363CMA] is a determination that would fall to be set aside on such an application.

(8) Section 117 of the Enterprise Act 2002 (c. 40) (offences of supplying false or misleading information) shall have effect in relation to information supplied to the [F363CMA] in connection with their functions under this section as it has effect in relation to information supplied to them in connection with their functions under Part 3 of that Act.

(9) For the purposes of this section an appeal relates to price control if the matters to which the appeal relates are or include price control matters.

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(10) In this section [F364and section 193A] “price control matter” means a matter relating to the imposition of any form of price control by an SMP condition the setting of which is authorised by—

(a) section 87(9); (b) section 91; or (c) section 93(3).

Textual Amendments F350 Word in s. 193 heading substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 6 para. 98(8); S.I. 2014/416, art. 2(1)(d) (with Sch.) F351 Word in s. 193(1) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 6 para. 98(2); S.I. 2014/416, art. 2(1)(d) (with Sch.) F352 Word in s. 193(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 6 para. 98(3)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F353 Words in s. 193(2) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 6 para. 98(3)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F354 Words in s. 193(2) substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 87(2), 118(6)

(with s. 87(12)); S.I. 2017/765, reg. 2(w) F355 Words in s. 193(2)(b) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 6 para. 98(3)(c); S.I. 2014/416, art. 2(1)(d) (with Sch.) F356 Word in s. 193(2)(c) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 6 para. 98(3)(d); S.I. 2014/416, art. 2(1)(d) (with Sch.) F357 Word in s. 193(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 6 para. 98(4)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F358 Words in s. 193(3) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 6 para. 98(4)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F359 Word in s. 193(4) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 6 para. 98(5); S.I. 2014/416, art. 2(1)(d) (with Sch.) F360 Word in s. 193(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 6 para. 98(6)(a); S.I. 2014/416, art. 2(1)(d) (with Sch.) F361 Words in s. 193(6) omitted (31.7.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 87(3),

118(6) (with s. 87(12)); S.I. 2017/765, reg. 2(w) F362 Words in s. 193(6) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s.

103(3), Sch. 6 para. 98(6)(b); S.I. 2014/416, art. 2(1)(d) (with Sch.) F363 Word in s. 193(7)(8) substituted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24),

s. 103(3), Sch. 6 para. 98(7); S.I. 2014/416, art. 2(1)(d) (with Sch.); S.I. 2014/416, art. 2(1)(d) (with Sch.)

F364 Words in s. 193(10) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 44; S.I. 2014/416, art. 2(1)(f) (with Sch.)

Commencement Information I339 S. 193 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I340 S. 193 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F365193ARecovery of CMA's costs in respect of price control references

(1) Where a determination is made on a price control matter referred by virtue of section 193, the CMA may make an order in respect of the costs incurred by it in connection with the reference (a “costs order”).

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(2) A costs order may require the payment to the CMA of some or all of those costs by such parties to the appeal which gave rise to the reference, other than OFCOM, as the CMA considers appropriate.

(3) A costs order must— (a) set out the total costs incurred by the CMA in connection with the reference,

and (b) specify the proportion of those costs to be paid by each party to the appeal in

respect of whom the order is made.

(4) In deciding on the proportion of costs to be paid by a party to the appeal the CMA must, in particular, consider—

(a) the extent to which the determination on the reference upholds OFCOM's decision in relation to the price control matter in question,

(b) the extent to which the costs were attributable to the involvement in the appeal of the party, and

(c) the conduct of the party.

(5) A costs order— (a) must be made as soon as reasonably practicable after the making of the

determination on the reference, but (b) does not take effect unless the Tribunal, in deciding the appeal which gave

rise to the reference, decides the price control matter which is the subject of the reference in accordance with the determination of the CMA (see section 193(6)).

(6) In a case where the Tribunal decides the price control matter in question otherwise than as mentioned in subsection (5)(b), the CMA may make an order under this subsection in respect of the costs incurred by it in connection with the reference.

(7) Subsections (2) to (4) apply in relation to an order under subsection (6) as they apply in relation to an order under subsection (1); but for that purpose the reference in subsection (4)(a) to the determination on the reference is to be read as a reference to the decision of the Tribunal mentioned in subsection (6).

(8) An order under subsection (6) must be made as soon as reasonably practicable after the decision of the Tribunal mentioned in that subsection.

(9) An amount payable to the CMA by virtue of an order made under this section is recoverable summarily as a civil debt (but this does not affect any other method of recovery).

(10) The CMA must pay any sums it receives by virtue of this section into the Consolidated Fund.

(11) The functions of the CMA under this section, other than those under subsections (9) and (10), are to be carried out on behalf of the CMA by the group constituted by the chair of the CMA in relation to the reference in question.]

Textual Amendments F365 S. 193A inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), ss. 54, 103(3); S.I.

2014/416, art. 2(1)(b) (with Sch.)

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F366194 Composition of Competition Commission for price control references

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F366 S. 194 omitted (1.4.2014) by virtue of Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 6 para. 99; S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information I341 S. 194 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I342 S. 194 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

[F367194ADisposal of appeals under section 192 (other than against certain decisions of Secretary of State)

(1) This section applies to an appeal against a decision referred to in section 192(1)(a), (b), (c), (d)(iii) or (e).

(2) The Tribunal must decide the appeal, by reference to the grounds of appeal set out in the notice of appeal, by applying the same principles as would be applied by a court on an application for judicial review.

(3) The Tribunal may— (a) dismiss the appeal or quash the whole or part of the decision to which it relates;

and (b) where it quashes the whole or part of that decision, remit the matter back to

the decision-maker with a direction to reconsider and make a new decision in accordance with the ruling of the Tribunal.

(4) The decision-maker must comply with a direction under subsection (3)(b).

(5) In its application to a decision of the Tribunal under this section, paragraph 1(2)(b) of Schedule 4 to the Enterprise Act 2002 (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 any person to whom it relates.

(6) In this section “the decision-maker” means the person who made the decision appealed against.]

Textual Amendments F367 S. 194A inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 87(4), 118(6) (with s. 87(12));

S.I. 2017/765, reg. 2(w)

195 [F368Disposal of appeals under section 192 against certain decisions of Secretary of State]

[F369(1) This section applies to an appeal against a decision referred to in section 192(1)(d) (i), (ii), (iia) or (iv).]

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(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’s decision must include a decision as to what (if any) is the appropriate action for [F370 the Secretary of State ] to take in relation to the subject-matter of the decision under appeal.

(4) The Tribunal shall then remit the decision under appeal to [F370 the Secretary of State ] with such directions (if any) as the Tribunal considers appropriate for giving effect to its decision.

(5) The Tribunal must not direct [F370 the Secretary of State ] to take any action which he would not otherwise have power to take in relation to the decision under appeal.

(6) It shall be the duty of [F370 the Secretary of State ] to comply with every direction given under subsection (4).

(7) In the case of an appeal against a decision given effect to by a restriction or condition set by regulations under section 109, the Tribunal must take only such steps for disposing of the appeal as it considers are not detrimental to good administration.

(8) 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 any person to whom it relates.

F371(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F368 S. 195 title substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 87(10), 118(6) (with s.

87(12)); S.I. 2017/765, reg. 2(w) F369 S. 195(1) substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 87(6), 118(6) (with s.

87(7)(12)); S.I. 2017/765, reg. 2(w) F370 Words in s. 195(3)-(6) substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 87(8), 118(6)

(with s. 87(12)); S.I. 2017/765, reg. 2(w) F371 S. 195(9) omitted (31.7.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 87(9), 118(6) (with s.

87(12)); S.I. 2017/765, reg. 2(w)

Commencement Information I343 S. 195 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I344 S. 195 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

196 Appeals from the Tribunal

(1) A decision of the Tribunal on an appeal under section 192(2) may itself be appealed.

(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—

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(a) a party to the proceedings before the Tribunal; or (b) any other person who has a sufficient interest in the matter.

(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 section 195(4).

Commencement Information I345 S. 196 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I346 S. 196 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Interpretation of Chapter 3

197 Interpretation of Chapter 3

(1) In this Chapter— [F372“the CMA” means the Competition and Markets Authority;] “network access” has the same meaning as in Chapter 1 of this Part; “the Tribunal” means the Competition Appeal Tribunal; and “Tribunal rules” means rules made under section 15 of the Enterprise Act

2002.

(2) References in this Chapter, in relation to a dispute, to the regulatory authorities of other member States are references to such of the authorities of the other member States as have been notified under the Framework Directive to the European Commission as the regulatory authorities of those States for the purposes of the matters to which the dispute relates.

(3) In this section “the Framework Directive” has the same meaning as in Chapter 1 of this Part.

Textual Amendments F372 Words in s. 197 inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3),

Sch. 6 para. 100; S.I. 2014/416, art. 2(1)(d) (with Sch.)

Commencement Information I347 S. 197 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I348 S. 197 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

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PART 3

TELEVISION AND RADIO SERVICES [F373ETC]

Textual Amendments F373 Word in Pt. 3 inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 22(4), 47(1)

Modifications etc. (not altering text) C24 Pt. 3: amendment to earlier affecting provision S.I. 2012/292, Sch. Pt. 2 (12.7.2012) by The

Broadcasting (Local Digital Television Programme Services and Independent Productions) (Amendment) Order 2012 (S.I. 2012/1842), art. 4

C25 Pt. 3 applied (with modifications) (14.2.2012) by The Local Digital Television Programme Services Order 2012 (S.I. 2012/292), arts. 1, 4, Sch. Pt. 2

CHAPTER 1

THE BBC, C4C THE WELSH AUTHORITY AND THE GAELIC MEDIA SERVICE

The BBC

198 Functions of OFCOM in relation to the BBC

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

(a) the BBC Charter and Agreement, and (b) the provisions of this Act and of Part 5 of the 1996 Act,

[F374to regulate the BBC.]

(2) For the purposes of the carrying out of that function OFCOM— (a) are to have such powers and duties as may be conferred on them by or under

the BBC Charter and Agreement; and (b) are entitled, to the extent that they are authorised to do so by the Secretary of

State or under the terms of that Charter and Agreement, to act on his behalf in relation to that Charter and Agreement.

[F375(2A) The BBC Charter and Agreement may in particular confer on OFCOM, as a power they are to have by virtue of subsection (2)(a), power to require any person to provide information for the purposes of the carrying out by OFCOM of their function under subsection (1).]

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

(a) this Part, [F376(aa) Part 4A,] or

(b) the BBC Charter and Agreement, as are imposed by OFCOM in exercise of powers conferred on them by that Charter and Agreement.

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

(a) agreed from time to time between the BBC and OFCOM; or (b) (in default of agreement) fixed by the Secretary of State.

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

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

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

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

F377(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F374 Words in s. 198(1) substituted (27.4.2017) by Digital Economy Act 2017 (c. 30), ss. 88(3), 118(1) F375 S. 198(2A) inserted (27.4.2017) by Digital Economy Act 2017 (c. 30), ss. 88(4), 118(1) F376 S. 198(3)(aa) inserted (19.12.2009) by Audiovisual Media Services Regulations 2009 (S.I. 2009/2979),

regs. 1(1), 3(1)(a) F377 S. 198(9) omitted (27.4.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 88(5), 118(1)

Modifications etc. (not altering text) C26 S. 198(1) amendment by 2017 c. 30, s. 88(3) extended to Isle of Man (1.3.2020) by The

Communications (Isle of Man) Order 2020 (S.I. 2020/149), arts. 1(2), 2 C27 S. 198(2A) amendment by 2017 c. 30, s. 88(4) extended to Isle of Man (1.3.2020) by The

Communications (Isle of Man) Order 2020 (S.I. 2020/149), arts. 1(2), 2 C28 S. 198(9) amendment by 2017 c. 30, s. 88(5) extended to Isle of Man (1.3.2020) by The

Communications (Isle of Man) Order 2020 (S.I. 2020/149), arts. 1(2), 2

Commencement Information I349 S. 198 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F378198ZAPenalties for failure to provide information

(1) This section applies if— (a) under a power conferred by virtue of section 198(2A), OFCOM require a

person other than the BBC to provide information, and (b) OFCOM determine that there are reasonable grounds to believe the person

has not provided the information.

(2) OFCOM may give the person a notice which sets out the determination and specifies— (a) what information the person must provide, (b) the time within which the person must provide it,

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(c) a penalty that OFCOM may impose if the person does not provide it, and (d) a period in which the person may make representations.

(3) OFCOM may impose a penalty on the person if they fail without reasonable excuse to provide the information in accordance with the notice.

(4) The penalty may include an amount for each day the person fails to provide the information after the time required by the notice.

(5) The penalty in respect of any notice— (a) must not be more than OFCOM determine to be proportionate, (b) must not be more than the penalty specified in the notice, and (c) must not be more than £250,000.

(6) OFCOM may withdraw a notice without imposing a penalty, and that does not affect the power to issue a further notice in relation to the same information.

(7) OFCOM must publish and keep up to date a statement of their proposed approach to issuing notices and imposing and recovering penalties under this section (subject to the guidelines published under section 392).]

Textual Amendments F378 S. 198ZA inserted (27.4.2017) by Digital Economy Act 2017 (c. 30), ss. 88(6), 118(1)

Modifications etc. (not altering text) C29 S. 198ZA amendment by 2017 c. 30, s. 88(6) extended to Isle of Man (1.3.2020) by The

Communications (Isle of Man) Order 2020 (S.I. 2020/149), arts. 1(2), 2

C4C

[F379198AC4C's functions in relation to media content

(1) C4C must participate in— (a) the making of a broad range of relevant media content of high quality that,

taken as a whole, appeals to the tastes and interests of a culturally diverse society,

(b) the making of high quality films intended to be shown to the general public at the cinema in the United Kingdom, and

(c) the broadcasting and distribution of such content and films.

(2) C4C must, in particular, participate in— (a) the making of relevant media content that consists of news and current affairs, (b) the making of relevant media content that appeals to the tastes and interests

of older children and young adults, (c) the broadcasting or distribution by means of electronic communications

networks of feature films that reflect cultural activity in the United Kingdom (including third party films), and

(d) the broadcasting or distribution of relevant media content by means of a range of different types of electronic communications networks.

(3) In performing their duties under subsections (1) and (2) C4C must—

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(a) promote measures intended to secure that people are well-informed and motivated to participate in society in a variety of ways, and

(b) contribute towards the fulfilment of the public service objectives (as defined in section 264A).

(4) In performing their duties under subsections (1) to (3) C4C must— (a) support the development of people with creative talent, in particular—

(i) people at the beginning of their careers in relevant media content or films, and

(ii) people involved in the making of innovative content and films, (b) support and stimulate well-informed debate on a wide range of issues,

including by providing access to information and views from around the world and by challenging established views,

(c) promote alternative views and new perspectives, and (d) provide access to material that is intended to inspire people to make changes

in their lives.

(5) In performing those duties C4C must have regard to the desirability of— (a) working with cultural organisations, (b) encouraging innovation in the means by which relevant media content is

broadcast or distributed, and (c) promoting access to and awareness of services provided in digital form.

(6) In this section— “participate in” includes invest in or otherwise procure; “relevant media content” means material, other than advertisements, which

is included in any of the following services that are available to members of the public in all or part of the United Kingdom—

(a) television programme services, additional television services or digital additional television services,

(b) on-demand programme services, or (c) other services provided by means of the internet where there is a person

who exercises editorial control over the material included in the service; and a film is a “third party film” if C4C did not participate in making it.

(7) The services that are to be taken for the purposes of this section to be available to members of the public include any service which—

(a) is available for reception by members of the public (within the meaning of section 361); or

(b) is available for use by members of the public (within the meaning of section 368R(4)).]

Textual Amendments F379 S. 198A inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 22(1), 47(1)

[F380198BStatement of media content policy

(1) C4C must prepare a statement of media content policy—

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(a) at the same time as they prepare the first statement of programme policy that is prepared under section 266 after this section comes into force, and

(b) subsequently at annual intervals.

(2) C4C must monitor their performance in carrying out the proposals contained in their statements of media content policy.

(3) A statement of media content policy must— (a) set out C4C's proposals for securing that, during the following year, they will

discharge their duties under section 198A, and (b) include a report on their performance in carrying out the proposals contained

in the previous statement.

(4) In preparing the statement, C4C must— (a) have regard to guidance given by OFCOM, and (b) consult OFCOM.

(5) C4C must publish each statement of media content policy— (a) as soon as practicable after its preparation is complete, and (b) in such manner as they consider appropriate, having regard to any guidance

given by OFCOM.

(6) OFCOM must— (a) from time to time review the guidance for the time being in force for the

purposes of this section, and (b) revise that guidance as they think fit.

Textual Amendments F380 Ss. 198B-198D inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 23(1), 47(1)

198C OFCOM reports on C4C's media content duties

(1) For each relevant period, OFCOM must— (a) carry out a review of the extent to which C4C have discharged their duties

under section 198A, and (b) prepare a report on the matters found on the review.

(2) OFCOM must publish each report under this section— (a) as soon as practicable after its preparation is complete, and (b) in such manner as they consider appropriate.

(3) “Relevant period” means each period selected by OFCOM for the purposes of section 264(1)(b) that ends after this section comes into force.

Textual Amendments F380 Ss. 198B-198D inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 23(1), 47(1)

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198D Directions in relation to C4C's media content duties

(1) This section applies if OFCOM— (a) are of the opinion that C4C have failed to perform one or more of their duties

under section 198A or section 198B(1), (3) or (5), (b) are of the opinion that the failure is serious and is not excused by economic

or market conditions, and (c) determine that the situation requires the exercise of their functions under this

section.

(2) In making a determination under subsection (1)(c), OFCOM must have regard, in particular, to—

(a) C4C's statements of media content policy, (b) C4C's effectiveness and efficiency in monitoring their own performance, and (c) general economic and market conditions affecting the provision of relevant

media content (as defined in section 198A).

(3) OFCOM may give directions to C4C to do one or both of the following— (a) to revise the latest statement of media content policy in accordance with the

direction; (b) to take such steps for remedying the failure as OFCOM specify in the

direction.

(4) A direction given under this section must set out— (a) a reasonable timetable for complying with it, and (b) the factors that OFCOM will take into account in determining whether or not

a failure has been remedied.

(5) OFCOM must consult C4C before giving a direction under this section.]

Textual Amendments F380 Ss. 198B-198D inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 23(1), 47(1)

199 [F381Other ] Functions of C4C

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

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

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

(2) [F382 In subsection (1) “primary functions” means— (za) the performance of C4C's duties under section 198A;] (a) securing the continued provision of Channel 4; and (b) the fulfilment of the public service remit for that Channel under section 265.

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

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

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

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

(a) to borrow money; (b) to carry on activities (other than those comprised in their duty to

carry out their primary functions) through Channel 4 companies; and

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

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

Textual Amendments F381 Word in s. 199 heading inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 22(2), 47(1) F382 Words in s. 199(2) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 22(2), 47(1)

Modifications etc. (not altering text) C30 S. 199(2)(b) modified (temp.) (8.12.2003) by The Office of Communications Act 2002

(Commencement No. 3) and Communications Act 2003 (Commencement No. 2) Order 2003 (S.I. 2003/3142), art. 7 (with art. 11)

Commencement Information I350 S. 199 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

200 Removal of members of C4C

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

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

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

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

Commencement Information I351 S. 200 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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201 Deficits and surpluses of C4C

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

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

Commencement Information I352 S. 201 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

202 Borrowing limit for C4C

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

(2) The order may fix the limit either— (a) by specifying the sum which the outstanding borrowing of C4C must not at

any time exceed; or (b) by providing a method of determining the sum which that borrowing must

not exceed.

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

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

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

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

Commencement Information I353 S. 202 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

The Welsh Authority

203 Function of OFCOM in relation to the Welsh Authority

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

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Commencement Information I354 S. 203 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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

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

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

[F383(3) The carrying out of that function— (a) must include the continuing provision of the service provided in digital form

and known as S4C Digital; and (b) may include the continuing provision of the television broadcasting service

known as Sianel Pedwar Cymru (“S4C”).]

[F384(4) The duty of the Welsh Authority to provide S4C Digital includes a duty to secure that arrangements are made and remain in force for it to be broadcast in digital form.]

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

(6) The Welsh Authority may use part of the signals carrying S4C to provide— (a) subtitling in relation to programmes included in the service; and (b) other services which are ancillary to programmes included in S4C and which

are directly related to their contents.

(7) In providing S4C Digital the Welsh Authority may also provide— (a) assistance for disabled people in relation to programmes included in the

service; and (b) any other service (other than one mentioned in paragraph (a)) which is an

ancillary service in relation to S4C Digital.

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

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

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

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

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

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

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Textual Amendments F383 S. 204(3) substituted (12.8.2009) by Welsh Authority (Digital Switchover) Order 2009 (S.I.

2009/1968), arts. 1, 2(2) F384 S. 204(4) substituted (12.8.2009) by Welsh Authority (Digital Switchover) Order 2009 (S.I.

2009/1968), arts. 1, 2(3)

Commencement Information I355 S. 204 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

205 Powers to provide other services

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

(a) the service appears to them to satisfy the requirements of subsection (3); and (b) the provision by them of the service has been approved by an order made by

the Secretary of State.

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

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

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

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

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

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

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

(6) An order under this section approving the provision of a service must set out— (a) the nature and other characteristics of the service that is approved; and (b) in the case of a service that is a television programme service, a public service

remit for that service.

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

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

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

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

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

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

Commencement Information I356 S. 205 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

206 Other activities of Welsh Authority

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

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

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

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

(3) The approval of the Secretary of State— (a) must be contained in an order made by him; and (b) may be a general approval in relation to a description of activities or a specific

approval in relation to particular activities.

(4) The activities capable of being authorised under subsection (1)— (a) do not include the provision of a licensable service; but (b) do include activities for securing the provision of such a service by an S4C

company and other activities connected with the provision of such a service by such a company.

(5) The activities referred to in subsection (4)(b) include— (a) the formation of a company to provide a programme service; (b) the taking of steps by means of which a company that is providing such a

service becomes an S4C company.

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

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

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

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

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

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

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

Commencement Information I357 S. 206 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

207 Welsh Authority finances

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

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

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

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

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

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

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

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

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

(a) agreed from time to time between the Authority and OFCOM; or (b) (in default of agreement) fixed by the Secretary of State.

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

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

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

by order ”.

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(8) In section 61A of the 1990 Act (the public service fund)— (a) in subsection (2) (application of fund), for “their functions under section 57(1)

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

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

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

(a) S4C; (b) S4C Digital; and (c) the services the provision of which by the Authority is authorised by or under

section 205.

Commencement Information I358 S. 207 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

The Gaelic Media Service

208 The Gaelic Media Service

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

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

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

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

(4) The Service may— (a) make grants out of the Fund, or (b) otherwise apply it,

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

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

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

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

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

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

(a) a Channel 3 service; (b) Channel 4; (c) Channel 5; (d) a national sound broadcasting service; (e) a national digital sound programme service; or (f) a television multiplex service or a radio multiplex service.”

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

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

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

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

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

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

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

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

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

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

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

Commencement Information I359 S. 208 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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209 Membership of the Service

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

183A Membership of the Gaelic Media Service

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

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

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

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

(5) The members of the Service must include— (a) a member nominated by the BBC; (b) a member nominated by Highlands and Islands Enterprise; and (c) a member nominated by Bòrd Gàidhlig na h-Alba (the Gaelic

Development Agency).

(6) When appointing members of the Service, OFCOM must have regard to— (a) the desirability of having members of the Service who are proficient in

written and spoken Gaelic; and (b) any guidance issued by the Secretary of State for the purposes of this

section.

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

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

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

(c) the independent television and radio production industries in Scotland; (d) other persons and bodies concerned with the promotion and use of the

Gaelic language, including those concerned with education in Gaelic and in Gaelic culture.

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

(9) In this section— “Bòrd Gàidhlig na h-Alba” means the body of that name formed under

section 5 of the National Heritage (Scotland) Act 1985; “regional Channel 3 service” has the same meaning as in Part 1.

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

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

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

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

Commencement Information I360 S. 209 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

210 Supplementary provisions about the Service

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

(2) In paragraph 2 (tenure of office and remuneration)— (a) in sub-paragraph (1), for “sub-paragraph (2)” there shall be substituted “ sub-

paragraphs (1A) and (2) ”; (b) after sub-paragraph (1) there shall be inserted—

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

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

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

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

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

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

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

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

Commencement Information I361 S. 210 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

CHAPTER 2

REGULATORY STRUCTURE FOR INDEPENDENT TELEVISION SERVICES F385

F386

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Preliminary

211 Regulation of independent television services

(1) It shall be a function of OFCOM to regulate the following services in accordance with this Act, the 1990 Act and the 1996 Act—

(a) services falling within subsection (2) that are provided otherwise than by the BBC or the Welsh Authority; and

(b) services falling within subsection (3) that are provided otherwise than by the BBC.

(2) The services referred to in subsection (1)(a) are— (a) television broadcasting services that are provided from places in the United

Kingdom with a view to their being broadcast otherwise than only from a satellite;

(b) television licensable content services that are provided by persons under the jurisdiction of the United Kingdom for the purposes of the [F387Audiovisual Media Services Directive] ;

(c) digital television programme services that are provided by persons under the jurisdiction of the United Kingdom for the purposes of that Directive;

(d) restricted television services that are provided from places in the United Kingdom; and

(e) additional television services that are provided from places in the United Kingdom.

(3) The services referred to in subsection (1)(b) are— (a) television multiplex services that are provided from places in the United

Kingdom; and (b) digital additional television services that are provided by persons under the

jurisdiction of the United Kingdom for the purposes of the [F388Audiovisual Media Services Directive] .

Textual Amendments F387 Words in s. 211(2)(b) substituted (19.12.2009) by Audiovisual Media Services Regulations 2009 (S.I.

2009/2979), regs. 1(1), 8(a) F388 Words in s. 211(3)(b) substituted (19.12.2009) by Audiovisual Media Services Regulations 2009 (S.I.

2009/2979), regs. 1(1), 8(a)

Commencement Information I362 S. 211 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

212 Abolition of function of assigning television frequencies

The Secretary of State shall cease to have any function under the 1990 Act or the 1996 Act of assigning frequencies for the purposes of any of the following—

(a) services falling to be licensed under Part 1 of the 1990 Act; (b) S4C; or (c) television multiplex services falling to be licensed under Part 1 of the 1996

Act.

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Textual Amendments F389 S. 212 amendment to earlier affecting provision SI 2003/3197 art. 6 Sch. 2 (31.3.2005) by

Communications (Jersey) (Amendment) Order 2005 (S.I. 2005/855), arts. 1(1), 2(a)(i) F390 S. 212 amendment to earlier affecting provision SI 2003/3195 art. 6 Sch. 2 (31.3.2005) by

Communications (Bailiwick of Guernsey) (Amendment) Order 2005 (S.I. 2005/856), arts. 1(1), 2(a)(i)

Commencement Information I363 S. 212 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

213 Abolition of licensing for local cable systems

On and after the television transfer date no licence shall be required under Part 2 of the 1990 Act for the provision of a local delivery service.

Commencement Information I364 S. 213 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Channels 3 and 5

214 Digital Channel 3 and Channel 5 licences

(1) This section applies to the grant by OFCOM, at any time on or after the television transfer date, of a licence under Part 1 of the 1990 Act to provide a Channel 3 service or to provide Channel 5.

(2) The licence must— (a) be a licence to provide the licensed service with a view to its being broadcast

in digital form; and (b) contain such condition (if any) requiring the provider of the service to ensure

that the whole or a part of the service is also provided for broadcasting in analogue form as OFCOM consider appropriate.

(3) The conditions included in a licence by virtue of subsection (2)(b) must be such as to enable effect to be given to any directions given from time to time by the Secretary of State to OFCOM about the continuance of the provision of services in analogue form.

(4) Where the licence contains a condition falling within subsection (2)(b), it must also contain a condition that—

(a) the programmes (apart from the advertisements) that are included in the service provided in analogue form, and

(b) the times at which they are broadcast, are to be the same as in the case of, or of the specified part of, the service provided for broadcasting in digital form.

(5) The licence— (a) must be a licence which continues in force, from the time from which it takes

effect, until the end of the licensing period beginning or current at that time; and

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(b) shall be renewable, on one or more occasions, under section 216.

(6) For the purposes of subsection (5) a licensing period [F391, in relation to a licence,] is— (a) the period beginning with the commencement of this section and ending with

the initial expiry date [F392for that type of licence] ; or (b) any subsequent period of ten years beginning with the end of the previous

licensing period [F393for that type of licence] .

(7) The licence must contain the conditions that OFCOM consider appropriate for the purpose of performing their duty under section 263.

(8) The conditions of the licence must also include conditions prohibiting the imposition, whether directly or indirectly, of the following—

(a) charges on persons in respect of their reception in the United Kingdom of the licensed service;

(b) charges on persons in respect of their reception in the United Kingdom of any service consisting in the provision of assistance for disabled people in relation to programmes included in the licensed service; and

(c) charges on persons in respect of their reception in the United Kingdom of any service (other than one mentioned in paragraph (b)) which is an ancillary service in relation to so much of the licensed service as is provided in digital form.

(9) It shall be unlawful to impose a charge in contravention of a condition imposed under subsection (8).

Textual Amendments F391 Words in s. 214(6) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(2)(a), 47(1) F392 Words in s. 214(6)(a) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(2)(b), 47(1) F393 Words in s. 214(6)(b) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(2)(c), 47(1)

Commencement Information I365 S. 214 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

215 Replacement of existing Channel 3 and Channel 5 licences

(1) It shall be the duty of OFCOM to make an offer under this section to every person who, when the offer is made, is the holder of a licence (an “existing licence”)—

(a) to provide a Channel 3 service; or (b) to provide Channel 5.

(2) The offer made to a person under this section— (a) must be an offer to exchange his existing licence for a replacement licence;

and (b) must be made as soon as practicable after the television transfer date.

(3) The replacement licence offered must be one granted in accordance with the provisions of—

(a) Part 1 of the 1990 Act; and (b) section 214 of this Act;

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but sections 15 to 17A of the 1990 Act (award of licences) are not to apply in the case of the replacement licence.

(4) Subject to subsection (5), where OFCOM make an offer under this section to a person, the service which they are proposing to license by the replacement licence must be a service which—

(a) is provided with a view to its being broadcast in digital form; but (b) subject to that and to any requirements of section 214, appears to OFCOM

to be a service that is equivalent in all material respects to the service the provision of which in analogue form was authorised by the existing licence.

(5) An offer under this section may, to such extent as OFCOM think fit, propose the grant of a licence to provide a service for an area or at times which, though substantially the same as in the case of the existing licence, are not identical.

(6) The offer must propose the inclusion in the replacement licence of conditions as to the payment of amounts to OFCOM which require the payment of—

(a) the same amount in respect of each complete calendar year falling wholly or partly within the period for which the replacement licence is in force, and

(b) an amount equal to the same percentage of the qualifying revenue for each accounting period of the licence holder falling within that period,

as would have been payable under the existing licence had that licence continued in force until the end of the period for which the replacement licence is granted.

(7) That offer must also propose the conditions for allowing amounts paid for a period under the existing licence to be set off against liabilities for the same period arising under the replacement licence.

(8) An offer under this section must set out— (a) the terms of the proposed replacement licence; (b) the conditions on which OFCOM are proposing to grant the replacement

licence; (c) the period for which the offer is open; (d) the date on which the proposed replacement licence will be granted if the offer

is accepted; (e) the time as from which it is proposed that that licence will take effect if the

offer is accepted; and (f) the time from which the existing licence will cease to have effect if the offer

is not accepted.

(9) The times set out under subsection (8) must— (a) in the case of the time set out under paragraph (e), be in the period of twelve

months beginning with the television transfer date; and (b) in the case of the time set out under paragraph (f), be in the period of

eighteen months after the end of the period set out under paragraph (c) of that subsection.

(10) Where a person to whom an offer has been made under this section elects, by notification to OFCOM, to exchange his licence for the replacement licence offered to him—

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(a) he is entitled, on the date set out in the offer, to be granted, in accordance with Part 1 of the 1990 Act and section 214 of this Act, a replacement licence under that Part in the terms, and on the conditions, so set out;

(b) the replacement licence shall come into force, and the existing licence cease to have effect, at the time specified in the offer, or such later time as OFCOM may, with the consent of that person, direct; and

(c) the service which he is authorised to provide by the replacement licence, so far as it is provided in digital form, shall be a qualifying service for the purposes of Part 1 of the 1996 Act.

(11) Where the person to whom an offer has been made under this section— (a) does not elect, during the period for which the offer is open, to exchange the

existing licence for the replacement licence, or (b) rejects the offer before the end of that period,

the existing licence shall have effect as if the period for which it is to continue in force ended with the time specified in the offer for the purposes of subsection (8)(f).

(12) In this section “qualifying revenue” has the same meaning as in section 19 of the 1990 Act.

Commencement Information I366 S. 215 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

216 Renewal of Channel 3 and 5 licences

(1) The holder of— (a) a licence to provide a Channel 3 service, or (b) a licence to provide Channel 5,

may apply to OFCOM for the renewal of his licence for a period of ten years from the end of the licensing period current at the time of the application.

(2) An application for renewal may only be made in the period which— (a) begins four years before the end of the current licensing period; and (b) ends three months before the day that OFCOM have determined to be the day

by which they would need to publish a tender notice if they were proposing to grant a fresh licence to take effect from the end of that period.

(3) A determination for the purposes of subsection (2)(b)— (a) must be made at least one year before the day determined; and (b) must be notified by OFCOM to every person who, at the time of the

determination, holds a licence in respect of which there is right to apply for renewal under this section.

[F394(4) Where OFCOM receive an application under this section for the renewal of a licence they must—

(a) decide whether to renew the licence; and (b) notify the applicant of their decision.

(4A) If OFCOM decide to renew the licence they must—

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(a) in the case of a licence to provide a Channel 3 service, determine in accordance with section 216A the area for which the licence will be renewed;

(b) in every case, determine in accordance with section 217 the financial terms on which the licence will be renewed; and

(c) notify the applicant of their determinations.]

(5) Section 17(5) to (7) of the 1990 Act (suspect sources of funds) apply in relation to an applicant for a renewal under this section as they apply in relation to an applicant mentioned in section 17(5) of that Act, but as if references to the award of a licence were references to its renewal.

(6) OFCOM may decide not to renew the licence if they are not satisfied that the applicant (if his licence were renewed) would provide a service complying with the requirements imposed under Chapter 4 of this Part by conditions relating to—

(a) the public service remit for the licensed service; (b) programming quotas; (c) news and current affairs programmes; and (d) programme production and regional programming.

[F395(6A) OFCOM may also decide not to renew a licence to provide a Channel 3 service if, for the licensing period in question, they have renewed or propose to renew one or more other licences to provide a Channel 3 service for all of the area to which the licence relates.]

(7) OFCOM may also decide not to renew the licence if they propose to grant a fresh licence for a service replacing the licensed service which would differ from the licensed service in—

(a) the area for which it would be provided; or (b) the times of the day, or days of the week, between or on which it would be

provided.

(8) In all cases in which— (a) the applicant notifies OFCOM that he accepts the terms notified to him under

[F396subsection (4A)(c)] , and (b) they are not required or allowed by subsections (5) to (7) to refuse a renewal,

they must grant the renewal as soon as reasonably practicable.

(9) But OFCOM must not grant a renewal under this section more than eighteen months before the end of the licensing period from the end of which the renewal will take effect.

(10) Where a licence is renewed under this section, it must be renewed on the same terms and conditions, subject only to such modifications as are required to give effect [F397

(a) to any determination under subsection (4A)(a); (b) in accordance with the determination under subsection (4A)(b), to the

requirements imposed by section 217(4).]

(11) Nothing in this section requires OFCOM, following the receipt of an application for the renewal of a licence—

(a) to make a decision or determination, or (b) to take any other step under this section,

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at any time after an order under section 230 has come into force preventing the renewal of the licence.

(12) For the purposes of this section a licensing period [F398, in relation to a licence,] is— (a) the period beginning with the commencement of this section and ending with

the initial expiry date [F399for that type of licence] ; or (b) any subsequent period of ten years beginning with the end of the previous

licensing period [F400for that type of licence] .

(13) In this section “tender notice” means a notice under section 15 of the 1990 Act.

Textual Amendments F394 S. 216(4)(4A) substituted for s. 216(4) (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 24(3),

47(1) F395 S. 216(6A) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 24(4), 47(1) F396 Words in s. 216(8)(a) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 24(5), 47(1) F397 Words in s. 216(10) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 24(6), 47(1) F398 Words in s. 216(12) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(2)(a), 47(1) F399 Words in s. 216(12)(a) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(2)(b), 47(1) F400 Words in s. 216(12)(b) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(2)(c), 47(1)

Commencement Information I367 S. 216 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F401216ARenewal of Channel 3 licences: determination of licence areas

(1) This section applies if OFCOM decide under section 216(4) to renew a licence to provide a Channel 3 service.

(2) The area determined under section 216(4A)(a) for the licence— (a) must include all or part of the area to which the licence being renewed

currently relates, and (b) may include all or part of another area if the holder of the licence to provide

a Channel 3 service for the other area gives (and does not withdraw) consent before the determination is made.]

Textual Amendments F401 S. 216A inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 24(7), 47(1)

217 Financial terms of licence renewed under s. 216

(1) The determination under [F402section 216(4A)(b)] must comprise— (a) a determination of the amount which the holder of the renewed licence will

be required by the conditions of that licence to pay to OFCOM in respect of the first complete calendar year falling within the renewal period; and

(b) a determination of the percentage of qualifying revenue for each accounting period of the licence holder falling within the renewal period which the holder of that licence will be required by those conditions to pay to OFCOM.

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(2) The amount determined under subsection (1)(a) 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 15 of the 1990 Act.

(3) For the purposes of subsection (1)(b)— (a) different percentages may be determined for different accounting periods; and (b) the percentages that may be determined for an accounting period include a

nil percentage.

(4) The renewed licence is required, as renewed, to include conditions requiring the licence holder to pay to OFCOM—

(a) in addition to any fees required to be paid by virtue of section 4(1)(b) of the 1990 Act, but

(b) instead of the amounts payable under the corresponding provision applicable under the conditions of the licence to the period before the renewal takes effect,

the amounts specified in subsection (5).

(5) Those amounts are— (a) in respect of the first complete calendar year falling within the renewal period,

the amount determined under subsection (1)(a); (b) in respect of each subsequent year falling wholly or partly within the renewal

period, that amount increased by the appropriate percentage; and (c) in respect of each accounting period of the licence holder falling within the

renewal period, an amount representing a specified percentage of qualifying revenue for that accounting period.

(6) The percentage specified for the purposes of subsection (5)(c) in respect of an accounting period must be the amount determined for that period under subsection (1) (b).

(7) In this section— “the appropriate percentage” and “qualifying revenue” each has the same

meaning as in section 19 of the 1990 Act; and “renewal period”, in relation to a licence, means the period for which the

licence is in force by reason of its renewal.

Textual Amendments F402 Words in s. 217(1) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 24(8), 47(1)

Commencement Information I368 S. 217 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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The public teletext service

218 Duty to secure the provision of a public teletext service

(1) OFCOM must do all that they can to secure the provision, in accordance with this Chapter and Part 1 of the 1996 Act, of a teletext service that is available nationwide.

(2) The service must consist of— (a) a single teletext service provided in digital form with a view to its being

broadcast by means of a television multiplex service; and (b) for so long as Channel 4, S4C and one or more Channel 3 services are

broadcast in analogue form, an analogue teletext service.

(3) The service, if licensed to do so in accordance with section 219, may continue to include an analogue teletext service after it is no longer required under subsection (2) (b) to include such a service.

(4) The analogue teletext service that must be or may be comprised in the public teletext service is a single additional television service that uses the combined spare capacity available for the provision of additional television services on the frequencies on which Channel 3 services, Channel 4 and S4C (or any of them) are broadcast in analogue form.

(5) For so long as the public teletext service must consist of both a teletext service provided in digital form and an analogue teletext service, OFCOM must secure that both services are provided by the same person.

(6) But nothing in this section— (a) requires the contents of the two services comprised in the public teletext

service to be the same; (b) prevents the service from including different items for different parts of the

United Kingdom or prevents the different items from being made available only in the parts of the United Kingdom for which they are included; or

(c) prevents the licence holder from making arrangements authorised by virtue of section 220 for the provision of the whole or a part of the public teletext service by another.

(7) OFCOM must exercise their powers— (a) to make frequencies available for the purposes of Channel 3 services, Channel

4 and S4C; and (b) to make determinations for the purposes of section 48(2)(b) of the 1990 Act

(determinations of spare capacity), in a manner that takes account of their duty under this section.

Commencement Information I369 S. 218 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F403218ADuty to report on public teletext service

(1) OFCOM must— (a) prepare a report on the public teletext service, and

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(b) send it to the Secretary of State as soon as practicable after this section comes into force.

(2) OFCOM must prepare and send to the Secretary of State further reports on the public teletext service when asked to do so by the Secretary of State.

(3) Each report must include, in particular— (a) an assessment of the advantages and disadvantages for members of the public

of the public teletext service being provided, and (b) an assessment of whether the public teletext service can be provided at a cost

to the licence holder that is commercially sustainable.

(4) An assessment under subsection (3)(a) must take account of alternative uses for the capacity that would be available if the public teletext service were not provided.

(5) OFCOM must publish every report under this section— (a) as soon as practicable after they send it to the Secretary of State, and (b) in such manner as they consider appropriate.

(6) “Capacity” means capacity on the frequencies on which Channel 3 services, Channel 4, S4C and television multiplex services are broadcast.]

Textual Amendments F403 S. 218A inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 27, 47(1)

219 Licensing of the public teletext service

(1) The licence that is required for the purposes of section 13 of the 1990 Act in respect of the public teletext service is a licence under Part 1 of that Act complying with this section.

(2) The licence— (a) must be a licence which continues in force, from the time from which it takes

effect, until the end of the licensing period beginning or current at that time; and

(b) shall be renewable, on one or more occasions, under section 222.

(3) For the purposes of subsection (2) a licensing period is— (a) the period beginning with the commencement of this section and ending with

the initial expiry date [F404for the licence to provide the public teletext service] ; or

(b) any subsequent period of ten years beginning with the end of the previous licensing period [F405for that type of licence] .

(4) The licence must contain the conditions that OFCOM consider appropriate for the purpose of performing their duty under section 263.

(5) The conditions of the licence must also include conditions prohibiting the imposition, whether directly or indirectly, of any charges on persons in respect of their reception in the United Kingdom of the licensed service.

(6) It shall be unlawful to impose a charge in contravention of a condition imposed under subsection (5).

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(7) The service authorised by a licence under this section, so far as it comprises a service provided in digital form, is a qualifying service for the purposes of Part 1 of the 1996 Act.

(8) Schedule 10 (which makes further provision about the award and grant of the licence for the public teletext service and about the conditions and enforcement of that licence) shall have effect.

Textual Amendments F404 Words in s. 219(3)(a) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(3)(a), 47(1) F405 Words in s. 219(3)(b) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(3)(b), 47(1)

Modifications etc. (not altering text) C31 S. 219 excluded (8.12.2003) by The Office of Communications Act 2002 (Commencement No. 3) and

Communications Act 2003 (Commencement No. 2) Order 2003 (S.I. 2003/3142), art. 8(1) (with art. 11)

Commencement Information I370 S. 219 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

220 Delegation of provision of public teletext service

(1) The licence for the provision of the public teletext service may— (a) include provision enabling the licence holder to authorise an eligible person

to provide the whole or a part of the public teletext service on his behalf; and (b) impose conditions subject to and in accordance with which the whole or a part

of that service may be provided by a person authorised by the licence holder.

(2) The conditions of the licence to provide the public teletext service apply in relation to its provision by a person authorised to do so on the licence holder’s behalf as they apply to its provision by the licence holder.

(3) A contravention of those conditions by a person so authorised shall be treated for the purposes of this Chapter and the 1990 Act as a contravention on the part of the licence holder.

(4) In this section “eligible person” means a person who is not a disqualified person under Part 2 of Schedule 2 to the 1990 Act in relation to the licence for the public teletext service.

Modifications etc. (not altering text) C32 S. 220 excluded (8.12.2003) by The Office of Communications Act 2002 (Commencement No. 3) and

Communications Act 2003 (Commencement No. 2) Order 2003 (S.I. 2003/3142), art. 8(1) (with art. 11)

Commencement Information I371 S. 220 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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221 Replacement of existing public teletext provider’s licence

(1) It shall be the duty of OFCOM to make an offer under this section to the person who, when the offer is made, is the holder of the licence to provide the existing service (the “existing licence”).

(2) The offer made to a person under this section— (a) must be an offer to exchange his existing licence for a replacement licence;

and (b) must be made as soon as practicable after the television transfer date.

(3) The replacement licence is to be one which is granted— (a) for the purposes of section 218 of this Act; and (b) in accordance with section 219 of this Act and the provisions of Part 1 of the

1990 Act; but Part 1 of Schedule 10 to this Act is not to apply in the case of the replacement licence.

(4) Where OFCOM make an offer under this section, the service which they are proposing to license by or under the replacement licence must be a service which comprises both—

(a) a service that appears to OFCOM to be equivalent in all material respects to the existing service; and

(b) a service that appears to them to be equivalent in all material respects to the teletext service in digital form which that person is required to provide by virtue of section 30 of the 1996 Act.

(5) The offer must propose the inclusion in the replacement licence of conditions as to the payment of amounts to OFCOM which require the payment of—

(a) the same amount in respect of each complete calendar year falling wholly or partly within the period for which the replacement licence is in force, and

(b) an amount equal to the same percentage of the qualifying revenue for each accounting period of the licence holder falling within that period,

as would have been payable under the existing licence had that licence continued in force until the end of the period for which the replacement licence is granted.

(6) That offer must also propose conditions allowing amounts paid for a period under the existing licence to be set off against liabilities for the same period arising under the replacement licence.

(7) An offer under this section must set out— (a) the terms of the proposed replacement licence; (b) the conditions on which OFCOM are proposing to grant the replacement

licence; (c) the period for which the offer is open; (d) the time as from which it is proposed the replacement licence will take effect

if the offer is accepted; and (e) the time from which the existing licence will cease to have effect if the offer

is not accepted.

(8) The times set out under subsection (7) must— (a) in the case of the time set out under paragraph (d), be in the period of twelve

months beginning with the television transfer date; and

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(b) in the case of the time set out under paragraph (e), be in the period of eighteen months after the end of the period set out under paragraph (c) of that subsection.

(9) Where the person to whom an offer has been made under this section elects, by notification to OFCOM, to exchange his licence for the replacement licence offered to him—

(a) he is entitled to be granted the replacement licence in the terms, and on the conditions, set out in the offer; and

(b) the replacement licence shall come into force, and the existing licence cease to have effect, at the time specified in the offer, or such later time as OFCOM may, with the consent of that person, direct.

(10) Where the person to whom an offer has been made under this section— (a) does not elect, during the period for which the offer is open, to exchange the

existing licence for the replacement licence, or (b) rejects the offer before the end of that period,

the existing licence shall have effect as if the period for which it is to continue in force ended with the time specified in the offer for the purposes of subsection (7)(e).

(11) In this section “the existing service” means the teletext service which— (a) is being provided immediately before the television transfer date on the

combined spare capacity available for the provision of additional television services on frequencies on which Channel 3 services and Channel 4 are provided; and

(b) is the service by reference to which the Independent Television Commission have discharged their duty under section 49(2) of the 1990 Act.

(12) In this section “qualifying revenue” means the revenue which would be qualifying revenue (within the meaning of section 52 of the 1990 Act) in relation to the holder of a licence to provide the analogue teletext service comprised in the public teletext service.

Commencement Information I372 S. 221 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

222 Renewal of public teletext licence

(1) The holder of the licence to provide the public teletext service may apply to OFCOM for the renewal of his licence for a period of ten years from the end of the licensing period current at the time of the application.

(2) An application for renewal may only be made in the period which— (a) begins four years before the end of the current licensing period; and (b) ends three months before the day that OFCOM have determined to be the day

by which they would need to publish a tender notice if they were proposing to grant a fresh licence to take effect from the end of that period.

(3) A determination for the purposes of subsection (2)(b)— (a) must be made at least one year before the day determined; and

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(b) must be notified by OFCOM to the holder, at the time of the determination, of the licence to provide the public teletext service.

(4) Where OFCOM receive an application under this section for the renewal of a licence, they must—

(a) decide whether they will be renewing the licence; (b) if they decide that they will be, determine in accordance with section 223 the

financial terms on which the licence will be renewed; and (c) notify the applicant of their decision and determination.

(5) Section 17(5) to (7) of the 1990 Act (suspect sources of funds) apply in relation to an applicant for a renewal under this section as they apply in relation to an applicant mentioned in section 17(5) of that Act, but as if—

(a) references to the award of a licence were references to its renewal; and (b) the reference in subsection (7)(a) to section 19(1) of that Act were a reference

to paragraph 7 of Schedule 10.

(6) OFCOM may decide not to renew the licence if they are not satisfied that the applicant (if his licence were renewed) would provide a service complying with the requirements imposed under Chapter 4 of this Part by conditions relating to—

(a) the public service remit for the public teletext service; (b) news; and (c) regional matters.

(7) OFCOM may also decide not to renew the licence if they propose to grant a fresh licence for the public teletext service which would differ in any material respect from the licensed service.

(8) In all cases in which— (a) the applicant notifies OFCOM that he accepts the terms notified to him under

subsection (4)(c), and (b) they are not required or allowed by subsections (5) to (7) to refuse a renewal,

they must grant the renewal as soon as reasonably practicable.

(9) But OFCOM must not grant a renewal under this section more than eighteen months before the end of the licensing period from the end of which the renewal will take effect.

(10) Where a licence is renewed under this section, it must be renewed on the same terms and conditions subject only to such modifications as are required to give effect, in accordance with the determination under subsection (4)(b), to paragraph 7 of Schedule 10.

(11) Nothing in this section requires OFCOM, following the receipt of an application for the renewal of a licence—

(a) to make a decision or determination, or (b) to take any other step under this section,

at any time after an order under section 230 has come into force preventing the renewal of the licence.

(12) For the purposes of this section a licensing period is—

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(a) the period beginning with the commencement of this section and ending with the initial expiry date [F406for the licence to provide the public teletext service] ; or

(b) any subsequent period of ten years beginning with the end of the previous licensing period [F407for that type of licence] .

(13) In this section “tender notice” means a notice under paragraph 1 of Schedule 10.

Textual Amendments F406 Words in s. 222(12)(a) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(3)(a), 47(1) F407 Words in s. 222(12)(b) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(3)(b), 47(1)

Commencement Information I373 S. 222 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

223 Financial terms of licence renewed under s. 222

(1) The determination under section 222(4)(b) must comprise— (a) a determination of the amount which the holder of the renewed licence will

be required by the conditions of that licence to pay to OFCOM in respect of the first complete calendar year falling within the renewal period;

(b) a determination of the percentage of qualifying revenue for each accounting period of the licence holder falling within the renewal period which he will be required by those conditions to pay to OFCOM.

(2) The amount determined under subsection (1)(a) 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 Part 1 of Schedule 10.

(3) For the purposes of subsection (1)(b)— (a) different percentages may be determined for different accounting periods; and (b) the percentages that may be determined for an accounting period include a

nil percentage.

(4) In this section “renewal period”, in relation to a licence, means the period for which the licence is in force by reason of its renewal.

(5) Part 3 of Schedule 10 applies for construing this section as it applies for construing that Schedule.

Commencement Information I374 S. 223 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Meaning of initial expiry date

224 Meaning of “initial expiry date”

[F408(1) Subject to any postponement under this section, for the purposes of this Part the initial expiry date for the following types of licence is 31 December 2014—

(a) a licence to provide a Channel 3 service; (b) a licence to provide Channel 5; (c) the licence to provide the public teletext service.]

(2) The Secretary of State may (on one or more occasions) by order postpone the initial expiry date [F409for one or more of the types of licence mentioned in subsection (1)] .

F410(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Where the Secretary of State makes an order under this section at a time after he has fixed a date for digital switchover, the date to which the initial expiry date is postponed must be a date not less than eighteen months after the date for digital switchover.

(5) The Secretary of State must exercise his power to postpone the initial expiry date if it at any time appears to him that that date would otherwise fall within the period of eighteen months immediately following the date fixed for digital switchover.

(6) Where an order under this section extends a licensing period for which a licence has been granted in accordance with section 214 or 219, the 1990 Act and this Part shall have effect (subject to subsection (7)) as if the licence had originally been granted for the extended period.

(7) Where an order under this section extends the period for which a licence is to continue in force—

(a) that order shall not affect the earliest time at which an application for the renewal of that licence may be made in accordance with section 216(2)(a) or 222(2)(a);

(b) as soon as reasonably practicable after making the order, OFCOM must make such modification of any determination made by them in the case of that licence for the purposes of section 216(2)(b) or 222(2)(b) as they consider appropriate in consequence of the extension; and

(c) neither section 216(3)(a) nor section 222(3)(a) applies to the making of that modification.

(8) In this section a reference to the date for digital switchover is a reference to the date fixed by the Secretary of State for the purposes of this section as the date which appears to him, in consequence of directions given by him for the purposes of the conditions of the licences for the relevant public broadcasting services, to be the date after which none of those services will be broadcast to any significant extent in analogue form.

(9) In this section “the relevant public broadcasting service” means any of the following— (a) the services comprised in Channel 3; and (b) Channel 5.

Textual Amendments F408 S. 224(1) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 25(2), 47(1) F409 Words in s. 224(2) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 25(3), 47(1)

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F410 S. 224(3) repealed (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 25(4), 47(1), Sch. 2

Commencement Information I375 S. 224 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Reviews relating to licensing of Channels 3 & 5 and teletext

225 Application for review of financial terms of replacement licences

(1) The holder of a replacement licence granted under section 215 or 221 may apply to OFCOM, at any time in the first or any subsequent review period, for a review of the financial terms on which that licence is held.

(2) For the purposes of this section the first review period is the period which— (a) begins four years before the first notional expiry date; and (b) ends with the day before the day that OFCOM have determined to be the one

by which they would need to publish a tender notice if they were proposing to grant a fresh licence to take effect from the first notional expiry date.

(3) For the purposes of this section a subsequent review period in the case of a replacement licence is so much (if any) of the following period as falls before the end of the initial expiry date [F411for that type of licence] , namely, the period which—

(a) begins four years before a subsequent notional expiry date; and (b) ends with the day before the day that OFCOM have determined to be the one

by which they would need to publish a tender notice if they were proposing to grant a fresh licence to take effect from that notional expiry date.

(4) A determination for the purposes of subsection (2)(b) or (3)(b) in respect of a replacement licence—

(a) must be made at least one year before the day determined; and (b) must be notified by OFCOM to the person who, at the time of the

determination, holds the licence in question.

(5) No application under this section for a review of the financial terms on which a replacement licence is held is to be made—

(a) at any time when an application under section 226 for a review of those terms is pending; or

(b) at any time in the period of twelve months following the day on which a determination by OFCOM on such an application is notified to the licence holder.

(6) For the purposes of this section an application for a review under section 226 is pending from the time when the application is made until the end of the day on which OFCOM’s determination on the review is notified to the licence holder.

(7) In this section— “the first notional expiry date”, in relation to a replacement licence, means

the date with which (apart from this Act) the existing licence would have expired if not renewed;

“subsequent notional expiry date”, in relation to a replacement licence, means—

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(a) in a case in which an application by the licence holder for a review under this section was made during the review period beginning four years before the last notional expiry date, the tenth anniversary of the date on which OFCOM’s determination on that review was notified to the licence holder; and

(b) in any other case, the tenth anniversary of the last notional expiry date; “tender notice” means a notice under section 15(1) of the 1990 Act or (as

the case may be) paragraph 1 of Schedule 10.

(8) In subsection (7) “existing licence” has the same meaning as in section 215 or (as the case may be) 221.

Textual Amendments F411 Words in s. 225(3) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(4), 47(1)

Commencement Information I376 S. 225 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

226 Application for review of financial terms in consequence of new obligations

(1) This section applies where an order is made under section 411 that brings section 272, 273 or 274 (or any two or more of them) into force for the purpose of including conditions in the regulatory regime for—

(a) a Channel 3 service; (b) Channel 5; or (c) the public teletext service.

(2) The holder of a licence in which conditions mentioned in section 272, 273 or 274 will fall to be included when the order comes into force may apply to OFCOM, at any time in the review period, for a review of the financial terms on which the licence is held.

(3) For the purposes of this section the review period in the case of an order under section 411 is the period which—

(a) begins with the day on which the order is made; and (b) ends with the time at which, by virtue of the order, one or more of sections

272, 273 and 274 come into force in the case of the licence in question.

(4) If in the case of the same order there is more than one time falling within subsection (3) (b), the review period ends with the later or latest of them.

Commencement Information I377 S. 226 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

227 Reviews under ss. 225 and 226

(1) This section applies where an application is made under section 225 or 226 for a review of the financial terms on which a licence is held.

(2) As soon as reasonably practicable after receiving the application, OFCOM must—

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(a) determine the amount to be paid to them under the conditions of the licence for the first calendar year falling wholly or partly within the period under review to begin after the application date; and

(b) determine the percentage to be used for computing the payments to be made to them under those conditions in respect of each accounting period falling within the period under review to begin after that date.

(3) The amount determined under subsection (2)(a) must be equal to the amount which, in OFCOM’s opinion, would have been the cash bid of the licence holder were the licence being granted afresh on an application made in accordance with—

(a) section 15 of the 1990 Act (licences for Channel 3 service or Channel 5); or (b) paragraph 3 of Schedule 10 to this Act.

(4) The determination required by subsection (2)(b) is a determination of the percentage of qualifying revenue for each accounting period that is to be paid to OFCOM.

(5) For the purposes of subsection (2)(b)— (a) different percentages may be determined for different accounting periods; and (b) the percentages that may be determined for an accounting period include a

nil percentage.

(6) In making their determinations on an application under section 226 OFCOM are to have regard, in particular, to any additional costs that are likely to be incurred by the licence holder in consequence of the commencement of so much of section 272, 273 or 274 (or any two or more of them) as is brought into force by the commencement order in question.

(7) References in this section to qualifying revenue for an accounting period are to be construed—

(a) in the case of the holder of a licence to provide a Channel 3 service or Channel 5, in accordance with section 19 of and Part 1 of Schedule 7 to the 1990 Act; and

(b) in the case of the holder of the licence to provide the public teletext service, in accordance with Part 3 of Schedule 10 to this Act.

(8) In this section— “the application date”, in relation to a review, means the date of the making

under section 225 or 226 of the application for the review; and “the period under review”, in relation to a review of the financial terms of a

licence, means so much of the period for which the licence will (if not renewed) continue in force after the application date.

Commencement Information I378 S. 227 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

228 Giving effect to reviews under ss. 225 and 226

(1) As soon as reasonably practicable after making a determination under section 227 on an application under section 225 or 226, OFCOM must give a notification of their determination to the applicant.

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(2) The notification must set out— (a) the determination made by OFCOM; (b) the modifications of the applicant’s licence that are required to give effect to

the determination; (c) a date by which the applicant must notify OFCOM whether or not he accepts

the determination and modifications; and (d) a subsequent date by which the applicant’s licence will cease to have effect

if he does not.

(3) The modifications set out in accordance with subsection (2)(b) must secure that the amount falling to be paid under the conditions of the applicant’s licence for each calendar year subsequent to that for which an amount has been determined in accordance with section 227(2)(a) is the amount so determined as increased by the appropriate percentage.

(4) In the case of a determination on an application under section 225, the date specified in accordance with subsection (2)(d) must not fall before whichever is the earlier of —

(a) the next notional expiry date after the application for the review; and (b) the end of the licensing period in which that application was made.

(5) Where the applicant notifies OFCOM that he accepts the determination— (a) his licence is to have effect with the modifications set out in OFCOM’s

notification; and (b) all such adjustments by way of payment or repayment as may be necessary for

giving effect to the modifications are to be made in respect of any payments already made for years or periods affected by the modifications.

(6) Where the applicant does not, before the date specified in accordance with paragraph (c) of subsection (2), notify OFCOM that he accepts the determination, his licence shall have effect as if the period for which it is to continue in force ended with the time specified in accordance with paragraph (d) of that subsection.

(7) Where the time at which a licence would cease to have effect in accordance with subsection (6) is the end of a licensing period, that subsection does not affect any rights of the licence holder with respect to the renewal of his licence from the end of that period.

(8) In this section— “the appropriate percentage” has the same meaning as in section 19 of the

1990 Act; “licensing period” [F412, in relation to a licence,] means—

(a) the period beginning with the commencement of this section and ending with the initial expiry date [F413for that type of licence] ; or

(b) any subsequent period of ten years beginning with the end of the previous licensing period [F414for that type of licence] ;

“notional expiry date” means a first or subsequent notional expiry date within the meaning of section 225.

Textual Amendments F412 Words in s. 228(8) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(5)(a), 47(1) F413 Words in s. 228(8) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(5)(b), 47(1)

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F414 Words in s. 228(8) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(5)(c), 47(1)

Commencement Information I379 S. 228 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

229 Report in anticipation of new licensing round

(1) OFCOM must, in anticipation of the end of each licensing period [F415for a type of relevant licence]

(a) prepare a report under this section; and (b) submit it to the Secretary of State no later than thirty months before the end

of that period.

(2) A report under this section must set out OFCOM’s opinion on the effect of each of the matters mentioned in subsection (3) on the capacity of the [F416holder or holders of that type of licence] to contribute, in the next licensing period, to the fulfilment of the purposes of public service television broadcasting in the United Kingdom at a cost to the [F417licence holder or holders] that is commercially sustainable.

(3) Those matters are— (a) the arrangements that (but for an order under section 230) would allow for

the renewal of [F418that type of licence] from the end of the current licensing period; and

(b) the conditions included in the regulatory regimes for the services provided under [F419that type of licence] .

(4) A report under this section must also include the recommendations (if any) which OFCOM consider, in the light of the opinion set out in the report, should be made to the Secretary of State for the exercise by him of—

(a) his power under section 230; or (b) any of the powers to make statutory instruments that are conferred on him by

Chapter 4 of this Part.

[F420(4A) Subsection (5) applies where the Secretary of State— (a) receives a report under this section in anticipation of the end of a licensing

period for a type of relevant licence, and (b) subsequently makes an order under section 224 extending the licensing period

for that type of licence.]

(5) [F421Where this subsection applies—] (a) [F422the Secretary of State] may require OFCOM to prepare a supplementary

report in the light of the postponement of the beginning of the next licensing period [F423for that type of licence] ; and

(b) it shall be the duty of OFCOM, within such period as may be specified by the Secretary of State, to prepare the required supplementary report and to submit it to him.

(6) In this section— “licensing period” [F424, in relation to a licence,] means—

(a) the period beginning with the commencement of this section and ending with the initial expiry date [F425for that type of licence] ; or

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(b) any subsequent period of ten years beginning with the end of the previous licensing period [F426for that type of licence] ;

“relevant licence” means— (a) a licence to provide a Channel 3 service; (b) a licence to provide Channel 5; or (c) the licence to provide the public teletext service.

Textual Amendments F415 Words in s. 229(1) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(7), 47(1) F416 Words in s. 229(2) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(8)(a), 47(1) F417 Words in s. 229(2) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(8)(b), 47(1) F418 Words in s. 229(3)(a) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(9), 47(1) F419 Words in s. 229(3)(b) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(9), 47(1) F420 S. 229(4A) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(10), 47(1) F421 Words in s. 229(5) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(11)(a), 47(1) F422 Word in s. 229(5)(a) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(11)(b), 47(1) F423 Words in s. 229(5)(a) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(11)(b), 47(1) F424 Words in s. 229(6) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(12)(a), 47(1) F425 Words in s. 229(6) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(12)(b), 47(1) F426 Words in s. 229(6) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(12)(c), 47(1)

Commencement Information I380 S. 229 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

230 Orders suspending rights of renewal

(1) This section applies where the Secretary of State has received and considered a report submitted to him by OFCOM under section 229.

(2) If— (a) the report contains a recommendation by OFCOM for the making of an order

under this section, or (b) the Secretary of State considers, notwithstanding the absence of such a

recommendation, that it would be appropriate to do so, he may by order provide that [F427a licence for the time being in force that is of a description specified in the order is] not to be renewable under section 216 or 222 from the end of the licensing period in which he received the report [F428(but see subsection (7))] .

(3) An order under this section preventing the renewal of [F429a licence] from the end of a licensing period must be made at least eighteen months before the end of that period.

(4) The Secretary of State is not to make an order under this section preventing the renewal of [F430a licence] from the end of the initial licensing period unless he has fixed a date before the end of that period as the date for digital switchover.

(5) Where the Secretary of State postpones the date for digital switchover after making an order under this section preventing the renewal of [F431a licence] from the end of the initial licensing period, the order shall have effect only if the date to which digital switchover is postponed falls before the end of that period.

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(6) Subsection (5) does not affect the power of the Secretary of State to make another order under this section after postponing the date for digital switchover.

(7) An order under this section with respect to [F432a Channel 3 licence] must be an order of one of the following descriptions—

(a) an order applying to every licence to provide a Channel 3 service; (b) an order applying to every licence to provide a national Channel 3 service; or (c) an order applying to every licence to provide a regional Channel 3 service.

(8) An order under this section does not affect— (a) the person to whom a licence may be granted on an application made under

section 15 of the 1990 Act or under paragraph 3 of Schedule 10 to this Act; or (b) rights of renewal in respect of [F433a licence] first granted so as to take effect

from the beginning of a licensing period beginning after the making of the order, or from a subsequent time.

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

(10) Subsection (8) of section 224 applies for construing references in this section to the date for digital switchover as it applies for the purposes of that section.

(11) In this section— “initial licensing period” [F434, in relation to a licence,] means the licensing

period ending with the initial expiry date [F435for that type of licence] ; and “licensing period” has the same meaning as in section 229.

Textual Amendments F427 Words in s. 230(2) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(14), 47(1) F428 Words in s. 230(2) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(15), 47(1) F429 Word in s. 230(3) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(16), 47(1) F430 Word in s. 230(4) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(16), 47(1) F431 Word in s. 230(5) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(16), 47(1) F432 Words in s. 230(7) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(17), 47(1) F433 Word in s. 230(8)(b) substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(16), 47(1) F434 Words in s. 230(11) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(18)(a), 47(1) F435 Words in s. 230(11) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 26(18)(b), 47(1)

Commencement Information I381 S. 230 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Replacement of Channel 4 licence

231 Replacement of Channel 4 licence

(1) On the commencement of this subsection— (a) Channel 4 shall cease to be licensed under the licence in force for the purposes

of section 24(3) of the 1990 Act immediately before the commencement of this subsection; and

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(b) a licence granted for those purposes in accordance with the following provisions of this section shall come into force as the licence under which Channel 4 is licensed.

(2) It shall be the duty of OFCOM, as soon as practicable after the television transfer date—

(a) to prepare a draft of a licence under Part 1 of the 1990 Act to replace the licence that is likely to be in force for the purposes of section 24(3) of the 1990 Act when subsection (1) of this section comes into force;

(b) to notify C4C of the terms and conditions of the replacement licence they propose; and

(c) after considering any representations made by C4C, to grant such a replacement licence to C4C so that it takes effect in accordance with paragraph (b) of subsection (1) of this section.

(3) A replacement licence proposed or granted under this section— (a) must be a licence to provide a service with a view to its being broadcast in

digital form; and (b) must contain such conditions (if any) requiring C4C to ensure that the whole

or a part of Channel 4 is also provided for broadcasting in analogue form as OFCOM consider appropriate.

(4) The conditions included in a licence by virtue of subsection (3)(b) must be such as to enable effect to be given to any directions given from time to time by the Secretary of State to OFCOM about the continuance of the provision of services in analogue form.

(5) Where a replacement licence proposed or granted under this section contains a condition falling within subsection (3)(b), it must also contain a condition that—

(a) the programmes (apart from the advertisements) that are included in the service provided in analogue form, and

(b) the times at which they are broadcast, are to be the same as in the case of, or of the specified part of, the service provided for broadcasting in digital form.

(6) The terms of a replacement licence proposed or granted under this section must provide for it to continue in force until the end of 2014.

(7) But— (a) such a licence may be renewed, on one or more occasions, for such period as

OFCOM may think fit in relation to the occasion in question; and (b) the provisions of this section (apart from subsections (1), (2) and (6)) are to

apply in the case of a licence granted by way of a renewal of a licence granted under this section as they apply in the case of the replacement licence.

(8) The conditions of a replacement licence proposed or granted under this section must include the conditions that OFCOM consider appropriate for the purpose of performing their duty under section 263.

(9) The conditions of such a licence must also include a condition prohibiting the imposition, whether directly or indirectly, of the following—

(a) charges on persons in respect of their reception in the United Kingdom of Channel 4;

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(b) charges on persons in respect of their reception in the United Kingdom of any service consisting in the provision of assistance for disabled people in relation to programmes included in Channel 4; and

(c) charges on persons in respect of their reception in the United Kingdom of any service (other than one mentioned in paragraph (b)) which is an ancillary service in relation to so much of Channel 4 as is provided in digital form.

(10) It shall be unlawful to impose a charge in contravention of a condition falling within subsection (9).

Commencement Information I382 S. 231(1) in force at 28.12.2004 by S.I. 2004/3309, art. 3 I383 S. 231(2)(a) (b) (3)-(10) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11) I384 S. 231(2)(c) in force at 10.12.2004 by S.I. 2004/3309, art. 2

Television licensable content services

232 Meaning of “television licensable content service”

(1) In this Part “television licensable content service” means (subject to section 233) any service [F436, or dissociable section of a service,] falling within subsection (2) in so far as it is provided with a view to its availability for reception by members of the public being secured by one or [F437more] of the following means—

(a) the broadcasting of the service [F438or dissociable section of the service] (whether by the person providing it or by another) from a satellite; F439...

[F440(aa) the broadcasting of the service [F441or dissociable section of the service] (whether by that person or by another) by means of a radio multiplex service; or]

(b) the distribution of the service [F442or dissociable section of the service] (whether by that person or by another) by any means involving the use of an electronic communications network.

(2) A service [F443, or dissociable section of a service,] falls within this subsection if it— (a) is provided (whether in digital or in analogue form) as a service that is to be

made available for reception by members of the public; and (b) consists of [F444 or has as its principal purpose the provision of] television

programmes or electronic programme guides, or both.

(3) Where— (a) [F445a service, or dissociable section of a service, consisting of television

programmes], an electronic programme guide or both (“the main service”) is provided by a person as a service to be made available for reception by members of the public, and

(b) that person provides the main service with other services or facilities that are ancillary to, or otherwise relate to, the main service and are also provided so as to be so available or in order to make a service so available,

subsection (1) has effect as if the main service and such of the other services or facilities as are relevant ancillary services and are not two-way services constituted a single service falling within subsection (2).

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(4) Where a person providing the main service provides it with a facility giving access to another service, the other service shall also be taken for the purposes of this section as provided by that person with the main service only if what is comprised in the other service is something over which that person has general control.

(5) A service is a two-way service for the purposes of this section if it is provided by means of an electronic communications network and an essential feature of the service is that the purposes for which it is provided involve the use of that network, or a part of it, both—

(a) for the transmission of visual images or sounds (or both) by the person providing the service to users of the service; and

(b) for the transmission of visual images or sounds (or both) by those users for reception by the person providing the service or by other users of the service.

(6) In this section— “electronic programme guide” means a service which consists of—

(a) the listing or promotion, or both the listing and the promotion, of some or all of the programmes included in any one or more programme services the providers of which are or include persons other than the provider of the guide; and

(b) a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide;

“relevant ancillary service”, in relation to the main service, means a service or facility provided or made available by the provider of the main service that consists of or gives access to—

(a) assistance for disabled people in relation to some or all of the programmes included in the main service;

(b) a service (apart from advertising) which is not an electronic programme guide but relates to the promotion or listing of programmes so included; or

(c) any other service (apart from advertising) which is ancillary to one or more programmes so included and relates directly to their contents.

Textual Amendments F436 Words in s. 232(1) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 5(a)(i) (with Pt. 7) F437 Word in s. 232(1) substituted (25.7.2006) by Television Licensable Content Services Order 2006 (S.I.

2006/2131), arts. 1(1), 2(1)(a) F438 Words in s. 232(1)(a) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 5(a)(ii) (with Pt. 7) F439 Word in s. 232(1)(a) omitted (25.7.2006) by virtue of Television Licensable Content Services Order

2006 (S.I. 2006/2131), arts. 1(1), 2(1)(b) F440 S. 232(1)(aa) inserted (25.7.2006) by Television Licensable Content Services Order 2006 (S.I.

2006/2131), arts. 1(1), 2(1)(c) F441 Words in s. 232(1)(aa) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 5(a)(ii) (with Pt. 7) F442 Words in s. 232(1)(b) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 5(a)(ii) (with Pt. 7) F443 Words in s. 232(2) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 5(b) (with Pt. 7)

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F444 Words in s. 232(2)(b) inserted (19.12.2009) by Audiovisual Media Services Regulations 2009 (S.I. 2009/2979), regs. 1(1), 6(1)

F445 Words in s. 232(3)(a) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 5(c) (with Pt. 7)

Commencement Information I385 S. 232 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

233 Services that are not television licensable content services

(1) A service [F446, or dissociable section of a service,] is not a television licensable content service to the extent that it is provided with a view to its being broadcast by means of a [F447television multiplex service or a general multiplex service] .

(2) A service [F448, or dissociable section of a service,] is not a television licensable content service to the extent that it consists of a service the provision of which is authorised by—

(a) a licence to provide a television broadcasting service; (b) the licence to provide the public teletext service; or (c) a licence to provide additional television services.

F449(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) A service [F450, or dissociable section of a service,] is not a television licensable content service if it is a two-way service (within the meaning of section 232).

(5) A service [F451, or dissociable section of a service,] is not a television licensable content service if—

(a) it is distributed by means of an electronic communications network only to persons all of whom are on a single set of premises; and

(b) that network is wholly within those premises and is not connected to an electronic communications network any part of which is outside those premises.

(6) For the purposes of subsection (5)— (a) a set of premises is a single set of premises if, and only if, the same person is

the occupier of all the premises; and (b) two or more vehicles are capable of constituting a single set of premises if,

and only if, they are coupled together.

(7) A service [F452, or dissociable section of a service,] is not a television licensable content service if it is provided for the purpose only of being received by persons who have qualified as users of the service by reason of being—

(a) persons who have a business interest in the programmes included in the service; or

(b) persons who are to receive the programmes for the purpose only of showing them to persons falling within sub-paragraph (a) or to persons all of whom are on the business premises of the person receiving them.

(8) For the purposes of subsection (7) a person has a business interest in programmes if he has an interest in receiving or watching them—

(a) for the purposes of a business carried on by him; or (b) for the purposes of his employment.

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(9) In this section— “business premises”, in relation to a person, means premises at or from which

any business of that person is carried on; F453... “premises” includes a vehicle; “vehicle” includes a vessel, aircraft or hovercraft.

(10) References in this section, in relation to a person, to a business include references to— (a) any business or other activities carried on by a body of which he is a member

and the affairs of which are managed by its members; and (b) the carrying out of any functions conferred on that person, or on any such

body, by or under any enactment.

Textual Amendments F446 Words in s. 233(1) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 6 (with Pt. 7) F447 Words in s. 233(1) substituted (25.7.2006) by Television Licensable Content Services Order 2006 (S.I.

2006/2131), arts. 1(1), 2(2)(a) F448 Words in s. 233(2) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 6 (with Pt. 7) F449 S. 233(3) omitted (19.12.2009) by virtue of Audiovisual Media Services Regulations 2009 (S.I.

2009/2979), regs. 1(1), 6(2) F450 Words in s. 233(4) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 6 (with Pt. 7) F451 Words in s. 233(5) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 6 (with Pt. 7) F452 Words in s. 233(7) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 6 (with Pt. 7) F453 Words in s. 233(9) omitted (25.7.2006) by virtue of Television Licensable Content Services Order

2006 (S.I. 2006/2131), arts. 1(1), 2(2)(b)

Commencement Information I386 S. 233 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

234 Modification of ss. 232 and 233

(1) The Secretary of State may by order modify any of the provisions of section 232 or 233 if it appears to him appropriate to do so having regard to any one or more of the following—

(a) the protection which, taking account of the means by which the programmes and services are received or may be accessed, is expected by members of the public as respects the contents of television programmes;

(b) the extent to which members of the public are able, before television programmes are watched or accessed, to make use of facilities for exercising control, by reference to the contents of the programmes, over what is watched or accessed;

(c) the practicability of applying different levels of regulation in relation to different services;

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(d) the financial impact for providers of particular services of any modification of the provisions of that section; and

(e) technological developments that have occurred or are likely to occur.

(2) The Secretary of State may also by order provide, in cases where it otherwise appears to him appropriate to do so, that a description of service specified in the order is not to be treated as a television licensable content service for the purposes of the provisions of this Act that are so specified.

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

Commencement Information I387 S. 234 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

235 Licensing of television licensable content services

(1) The licence that is required for the purposes of section 13 of the 1990 Act in respect of a television licensable content service is a licence granted under Part 1 of that Act on an application complying with this section.

(2) An application for a licence to provide a television licensable content service— (a) must be made in such manner, (b) must contain such information about the applicant, his business and the service

he proposes to provide, and (c) must be accompanied by such fee (if any),

as OFCOM may determine.

(3) Where an application is made to OFCOM in accordance with subsection (2) for a licence to provide a television licensable content service, OFCOM are entitled to refuse the application only if—

(a) they are required to do so by section 3(3) of the 1990 Act (licences to be held only by fit and proper persons);

(b) they are required to do so by section 5 of the 1990 Act (restrictions on the holding of licences); or

(c) they are satisfied that, if the application were to be granted, the provision of the service would be likely to involve contraventions of—

(i) standards set under section 319 of this Act; or (ii) the provisions of a code of practice in force under Part 5 of the 1996

Act (fairness).

(4) The provision of more than one television licensable content service shall require a separate licence under Part 1 of the 1990 Act to be granted and held in respect of each service.

(5) A single licence to provide a television licensable content service may authorise the provision of a service which consists (to any extent) of different programmes to be broadcast simultaneously, or virtually so.

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(6) A licence to provide a television licensable content service shall continue in force until such time as it is surrendered or is revoked in accordance with any of the provisions of this Chapter or of the 1990 Act.

[F454(7) A licence to provide a television licensable content service must contain such conditions as OFCOM consider appropriate for requiring the licence holder—

(a) on entering into any agreement with the provider of a radio multiplex service for the provision of a television licensable content service to be broadcast by means of that multiplex service, to notify OFCOM—

(i) of the identity of the radio multiplex service; (ii) of the period during which the service will be provided; and

(iii) where under the agreement he will be entitled to the use of a specified amount of digital capacity, of that amount;

(b) when any such agreement is varied so far as it relates to any of the matters mentioned in paragraph (a)(i), (ii) or (iii), to notify OFCOM of the variation so far as relating to those matters; and

(c) where he is providing a television licensable content service to the provider of a radio multiplex service in accordance with such an agreement as is mentioned in paragraph (a) but intends to cease doing so, to notify OFCOM of that fact.]

Textual Amendments F454 S. 235(7) inserted (25.7.2006) by Television Licensable Content Services Order 2006 (S.I. 2006/2131),

arts. 1(1), 3

Commencement Information I388 S. 235 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

236 Direction to licensee to take remedial action

(1) This section applies if OFCOM are satisfied— (a) that the holder of a licence to provide a television licensable content service

has contravened a condition of the licence; and (b) that the contravention can be appropriately remedied by the inclusion in the

licensed service of a correction or a statement of findings (or both).

(2) OFCOM may direct the licence holder to include a correction or a statement of findings (or both) in the licensed service.

(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 person a direction under this section unless they have given him a reasonable opportunity of making representations to them about the matters appearing to them to provide grounds for the giving of the direction.

(5) Where the holder of a licence includes a correction or a statement of findings in the licensed service in pursuance of a direction under this section, he may announce that he is doing so in pursuance of such a direction.

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(6) If OFCOM are satisfied that the inclusion of a programme in a television licensable content service involved a contravention of a condition of the licence to provide that service, they may direct the holder of the licence not to include that programme in that service on any future occasion.

(7) Where OFCOM— (a) give a direction to a BBC company under subsection (2), or (b) receive representations from a BBC company by virtue of subsection (4),

they must send a copy of the direction or representations to the Secretary of State.

(8) For the purposes of this section a statement of findings, in relation to a case in which OFCOM are satisfied that the holder of a licence has contravened the conditions of his licence, is a statement of OFCOM’s findings in relation to that contravention.

Modifications etc. (not altering text) C33 S. 236(2) modified (20.7.2004) by Contracting Out (Functions relating to Broadcast Advertising) and

Specification of Relevant Functions Order 2004 (S.I. 2004/1975), art. 1, Sch. para. 2(c) (with art. 5)

Commencement Information I389 S. 236 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

237 Penalties for contravention of licence condition or direction

(1) If OFCOM are satisfied that the holder of a licence to provide a television licensable content service—

(a) has contravened a condition of the licence, or (b) has failed to comply with a direction given by OFCOM under or by virtue of

a provision of this Part, Part 1 of the 1990 Act or Part 5 of the 1996 Act, they may serve on him a notice requiring him to pay them, within a specified period, a specified penalty.

(2) The amount of the penalty under this section must not exceed the maximum penalty given by subsection (3).

(3) 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”).

(4) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (3) is to be construed as referring to 5 per cent of the amount which OFCOM estimate will be the qualifying revenue for that accounting period.

(5) 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, are to apply for the purposes of subsection (3) as they apply for the purposes of Part 1 of that Act.

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(6) OFCOM are not to serve a notice on a person under subsection (1) unless they have given him a reasonable opportunity of making representations to them about the matters appearing to them to provide grounds for the service of the notice.

(7) Where OFCOM— (a) serve a notice on a BBC company under subsection (1), or (b) receive representations from a BBC company by virtue of subsection (6),

they must send a copy of the notice or representations to the Secretary of State.

(8) An exercise by OFCOM of their powers under subsection (1) does not preclude any exercise by them of their powers under section 236 in respect of the same contravention.

(9) The Secretary of State may by order substitute a different sum for the sum for the time being specified in subsection (3)(a).

(10) No order is to be made containing provision authorised by subsection (9) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Modifications etc. (not altering text) C34 S. 237 restricted (8.12.2003) by The Office of Communications Act 2002 (Commencement No. 3) and

Communications Act 2003 (Commencement No. 2) Order 2003 (S.I. 2003/3142), art. 9 (with art. 11)

Commencement Information I390 S. 237 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

238 Revocation of television licensable content service licence

(1) OFCOM must serve a notice under subsection (2) on the holder of a licence to provide a television licensable content service if they are satisfied—

(a) that the holder of the licence is in contravention of a condition of the licence or is failing to comply with a direction given by them under or by virtue of any provision of this Part, Part 1 of the 1990 Act or Part 5 of the 1996 Act; and

(b) that the contravention or failure, if not remedied, would justify the revocation of the licence.

(2) A notice under this subsection must— (a) state that OFCOM are satisfied as mentioned in subsection (1); (b) specify the respects in which, in their opinion, the licence holder is

contravening the condition or failing to comply with the direction; and (c) state that OFCOM will revoke the licence unless the licence holder takes,

within such period as is specified in the notice, such steps to remedy the failure as are so specified.

(3) If, at the end of the period specified in a notice under subsection (2), OFCOM are satisfied—

(a) that the person on whom the notice was served has failed to take the steps specified in it, and

(b) that it is necessary in the public interest to revoke his licence,

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they shall serve a notice on him revoking his licence.

(4) If OFCOM are satisfied in the case of a licence to provide a television licensable content service—

(a) that the holder of the licence has ceased to provide the licensed service, and (b) that it is appropriate for them to do so,

they shall serve a notice on him revoking his licence.

(5) If OFCOM are satisfied— (a) that the holder of a licence to provide a television licensable content service

has provided them, in connection with his application for the licence, with information which was false in a material particular, or

(b) that, in connection with his application for the licence, the holder of such a licence withheld any material information with the intention of causing them to be misled,

they may serve a notice on him revoking his licence.

(6) A notice under this section revoking a licence to provide a television licensable content service takes effect as from the time when it is served on the licence holder.

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

(8) Where OFCOM— (a) serve a notice on a BBC company under this section, or (b) receive representations from a BBC company by virtue of subsection (7),

they must send a copy of the notice or representations to the Secretary of State.

(9) Nothing in this section applies to the revocation of a licence in exercise of the power conferred by section 239.

Commencement Information I391 S. 238 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

239 Action against licence holders who incite crime or disorder

(1) OFCOM must serve a notice under subsection (2) on the holder of a licence to provide a television licensable content service if they are satisfied—

(a) that the holder of the licence has included in the service one or more programmes containing material likely to encourage or to incite the commission of crime, or to lead to disorder;

(b) that, in doing so, he has contravened conditions contained by virtue of Chapter 4 of this Part in the licence to provide that service; and

(c) that the contravention is such as to justify the revocation of the licence.

(2) A notice under this subsection must— (a) state that OFCOM are satisfied as mentioned in subsection (1); (b) specify the respects in which, in their opinion, the licence holder has

contravened the condition mentioned in paragraph (b) of that subsection;

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(c) state that OFCOM may revoke the licence after the end of the period of twenty-one days beginning with the day on which the notice is served on the licence holder; and

(d) inform the licence holder of his right to make representations to OFCOM within that period about the matters appearing to OFCOM to provide grounds for revoking the licence.

(3) The effect of a notice under subsection (2) shall be to suspend the licence as from the time when the notice is served on the licence holder until either—

(a) the revocation of the licence takes effect; or (b) OFCOM decide not to revoke the licence.

(4) If, after considering any representations made to them by the licence holder within the period specified for the purposes of subsection (2)(c), OFCOM are satisfied that it is necessary in the public interest to revoke the licence, they shall serve a notice of revocation on the licence holder.

(5) The revocation of a licence by a notice under subsection (4) takes effect from such time as may be specified in the notice.

(6) A notice of revocation under subsection (4) must not specify a time for it to take effect that falls before the end of the period of twenty-eight days beginning with the day on which the notice is served on the licence holder.

Commencement Information I392 S. 239 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

240 Abolition of separate licences for certain television services

(1) The authorisations that are to be capable of being granted on or after the television transfer date by or under a licence under Part 1 of the 1990 Act do not include the authorisation of the provision, as such, of—

(a) any satellite television service (as defined, disregarding its repeal by this Act, in section 43(1) of the 1990 Act); or

(b) any licensable programme service (as defined, disregarding its repeal by this Act, in section 46(1) of that Act).

(2) Subsection (1) does not affect OFCOM’s power, by means of a licence authorising the provision of a service falling within section 211(1), to authorise the provision of so much of any formerly regulated television service as is comprised in the licensed service.

(3) So much of any relevant existing licence as authorises the provision of a service which consists in or includes a television licensable content service—

(a) shall have effect, on and after the television transfer date, as a licence under Part 1 of the 1990 Act authorising the provision of the television licensable content service comprised in the licensed service;

(b) shall so have effect as a licence which, notwithstanding its terms and conditions, is to continue in force until such time as it is surrendered or is revoked in accordance with provisions of this Chapter or of the 1990 Act; and

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(c) shall otherwise have effect as a licence on the same terms and conditions as those on which it had effect immediately before the television transfer date.

(4) It shall be the duty of OFCOM to exercise their power under section 3 of the 1990 Act to make such variations of any licence having effect in accordance with subsection (3) of this section as (after complying with subsection (4)(b) of that section) they consider appropriate for the purpose of performing their duty under section 263 of this Act.

(5) In this section— “formerly regulated television service” means a service mentioned in

subsection (1); and “relevant existing licence”, means any licence which—

(a) was granted by the Independent Television Commission under Part 1 of the 1990 Act before the television transfer date; and

(b) is in force immediately before the television transfer date as a licence authorising the provision of a formerly regulated service.

Commencement Information I393 S. 240 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Television multiplex services

241 Television multiplex services

(1) Subject to the following provisions of this section, references in Part 1 of the 1996 Act to a multiplex service, other than those comprised in express references to a general multiplex service, shall have effect as references to any service (“a television multiplex service”) which—

(a) falls within subsection (2); and (b) is provided for broadcasting for general reception but otherwise than from a

satellite.

(2) A service falls within this subsection if— (a) it consists in the packaging together of two or more services which include at

least one relevant television service and are provided for inclusion together in the service by a combination of the relevant information in digital form; or

(b) it is a service provided with a view to its being a service falling within paragraph (a) but is one in the case of which only one service is for the time being comprised in digital form in what is provided.

(3) The provision, at a time after the commencement of this section, of a television multiplex service the provision of which is not authorised by or under a licence under Part 1 of the 1996 Act is not to be an offence under section 13 of the 1990 Act.

(4) Accordingly, after the commencement of this section, a licence under Part 1 of the 1996 Act shall be required for the provision of a television multiplex service only in so far as it is required for the purposes of a limitation falling within subsection (5) that is contained in a wireless telegraphy licence, or is deemed to be so contained.

(5) A limitation falls within this subsection, in relation to a wireless telegraphy licence, if it provides that the only television multiplex services that are authorised to be broadcast

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using the station or apparatus to which the licence relates are those that are licensed under Part 1 of the 1996 Act.

(6) Where immediately before the coming into force of this section— (a) a television multiplex service is licensed under Part 1 of the 1996 Act; and (b) that service is one broadcast using a station or apparatus the use of which is

authorised by a wireless telegraphy licence, that wireless telegraphy licence shall be deemed to contain a limitation falling within subsection (5).

(7) In any case where a wireless telegraphy licence is deemed by virtue of subsection (6) to contain a limitation falling within subsection (5) and the person providing the television multiplex service in question—

(a) ceases to be licensed under Part 1 of the 1996 Act in respect of that service, or (b) ceases to exist,

OFCOM may revoke the wireless telegraphy licence.

(8) Subsection (7) is not to be construed as restricting the powers of revocation exercisable apart from this section.

(9) In subsection (2) “relevant television service” means any of the following— (a) any Channel 3 service in digital form; (b) Channel 4 in digital form; (c) Channel 5 in digital form; (d) S4C Digital; (e) any digital television programme service; (f) the digital public teletext service.

Commencement Information I394 S. 241 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

242 Composition of services in television multiplexes

(1) In subsection (1) of section 12 of the 1996 Act— (a) in paragraph (c), (digital programmes services included in multiplex must be

provided by a licence holder or EEA broadcaster), after “section 18” there shall be inserted “ , by the BBC ”;

(b) in paragraph (d), (digital additional services included in multiplex must be provided by a licence holder or EEA broadcaster), after “section 25” there shall be inserted “ , by the BBC ”;

(c) after that paragraph there shall be inserted— “(da) that the only digital sound programme services broadcast

under the licence are services provided by the holder of a national digital sound programme licence (within the meaning of section 60) or by the BBC;”

(d) in paragraph (e), after “digital programme services” there shall be inserted “ , digital sound programme services ”;

(e) in paragraph (f), after “digital programme service” there shall be inserted “ , a digital sound programme service ”; and

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(f) for paragraph (h) (conditions as to composition of multiplex service), there shall be substituted—

“(h) that, while the licence is in force, at least the required percentage of the digital capacity on the frequency or frequencies on which the service is broadcast is used, or left available to be used, for the broadcasting of services falling within subsection (1A).”

(2) After that subsection there shall be inserted—

“(1A) The services falling within this subsection are— (a) qualifying services; (b) digital programme services licensed under this Part or provided by

the BBC; (c) digital sound programme services provided by the BBC; (d) programme-related services; and (e) relevant technical services.”

(3) In subsection (3) of that section— (a) after the words “digital programme services”, in the first place where they

occur, there shall be inserted “ or digital sound programme services ”; and (b) for “digital programme services broadcast under the licence” there shall be

substituted “ so much of what is broadcast under the licence as consists of digital programme services, or of such services together with digital sound programme services, ”.

(4) In subsection (4) of that section (interpretation of subsection (1)(h))— (a) for “(1)(h)” there shall be substituted “ (1A) ”; (b) in paragraph (a), for “the qualifying teletext service” there shall be substituted

“ the digital public teletext service ”; (c) in paragraph (b)(i), after “the 1990 Act)” there shall be inserted “ , or in one

or more digital sound programme services provided by the BBC, ” (d) in paragraph (c), for “digital programme services” there shall be substituted “

services falling within subsection (1A) which are comprised in the multiplex in question ”.

(5) After that subsection there shall be inserted—

“(4A) In subsection (1)(h), the reference to the required percentage is a reference to such percentage equal to or more than 90 per cent. as OFCOM—

(a) consider appropriate; and (b) specify in the condition.”

(6) In subsection (5) of that section (power to change percentage in subsection (1)(h)), for “(1)(h)” there shall be substituted “ (4A) ”.

Commencement Information I395 S. 242 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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243 Powers where frequencies reserved for qualifying services

(1) The Secretary of State may by order provide, in relation to the matters mentioned in subsection (2)—

(a) for any or all of the provisions of sections 7 to 16 and of sections 18 and 19 of the 1996 Act to have effect with the modifications specified in the order; and

(b) for provision made by the order to have effect in place of any or all of those provisions.

(2) Those matters are— (a) licences under Part 1 of the 1996 Act, and (b) the awarding and grant of such licences,

in a case in which the licence is, or is to be, a licence to provide a service for broadcasting on any one or more reserved frequencies.

(3) An order under this section may require OFCOM to include conditions falling within subsection (4) in any Broadcasting Act licence to provide a television multiplex service to be broadcast on a reserved frequency.

(4) Conditions falling within this subsection are conditions that OFCOM consider appropriate for securing that, in consideration for the making by any relevant public service broadcaster of such payments as are from time to time—

(a) agreed between the broadcaster and the holder of the licence to provide the television multiplex service, or

(b) in default of agreement, determined by OFCOM in accordance with the order, the holder of that licence will use digital capacity reserved in accordance with conditions imposed under section 12 of the 1996 Act or any order under this section for the broadcasting of services provided by that broadcaster.

(5) Subsection (3) is not to be construed as restricting the provision that may be made under subsection (1).

(6) A frequency is a reserved frequency for the purposes of this section if it is one as respects which OFCOM have made a determination, in exercise of their functions under the enactments relating to the management of the radio spectrum, that the frequency should be reserved for the broadcasting of television multiplex services.

(7) In this section “relevant public service broadcaster” means any of the following— (a) the holder of a licence to provide a Channel 3 service; (b) C4C; (c) the holder of a licence to provide Channel 5; (d) the Welsh Authority; (e) the public teletext provider.

Commencement Information I396 S. 243 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Local digital television services

244 Local digital television services

(1) The Secretary of State may by order provide for— (a) any of the provisions of this Part (apart from this section and the provisions

relating exclusively to sound services), or (b) any provision of Part 1 of the 1990 Act or of Part 1 of the 1996 Act (regulation

of television services), to have effect, in relation to services of such descriptions as may be set out in an order under this section, with such modifications as he considers necessary or appropriate for services of that description.

(2) The Secretary of State is not to make an order under this section in relation to a description of services except where—

(a) the description is of services to be provided in digital form with a view to their being included in a television multiplex service;

(b) the description is confined to services falling within one or both of subsections (3) and (4); and

(c) the Secretary of State is satisfied that the making of an order under this section in relation to that description of services will make possible, facilitate or encourage the provision of services so falling.

(3) Services fall within this subsection if they are— (a) intended for reception only at a particular establishment or otherwise on

particular premises; or (b) provided for the purposes only of a particular event.

(4) Services fall within this subsection if the Secretary of State considers that they are services in relation to which all the following conditions are satisfied—

(a) they are intended for reception only within a particular area or locality; (b) their provision meets, or would meet, the needs of the area or locality where

they are received; (c) their provision is or would be likely to broaden the range of television

programmes available for viewing by persons living or working in that area or locality; and

(d) their provision is or would be likely to increase the number and range of the programmes about that area or locality that are available for such viewing, or to increase the number of programmes made in that area or locality that would be so available.

(5) Services shall be taken for the purposes of subsection (4) to meet the needs of an area or locality if, and only if—

(a) their provision brings social or economic benefits to the area or locality, or to different categories of persons living or working in that area or locality; or

(b) they cater for the tastes, interests and needs of some or all of the different descriptions of people living or working in the area or locality (including, in particular, tastes, interests and needs that are of special relevance in the light of the descriptions of people who do so live and work).

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(6) In subsections (4) and (5), the references to persons living or working in an area or locality include references to persons undergoing education or training in that area or locality.

(7) An order under this section in relation to a description of services may, in particular, impose prohibitions or limitations on the inclusion of advertisements in services of that description and on the sponsorship of programmes included in the services.

(8) The power, by an order under this section, to make incidental, supplemental or consequential provision in connection with provision authorised by subsection (1) includes power to make incidental, supplemental or consequential provision modifying provisions of the 1990 Act, the 1996 Act or this Act that are not mentioned in that subsection.

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

Commencement Information I397 S. 244 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

CHAPTER 3

REGULATORY STRUCTURE FOR INDEPENDENT RADIO SERVICES

Preliminary

245 Regulation of independent radio services

(1) It shall be a function of OFCOM to regulate the following services in accordance with this Act, the 1990 Act and the 1996 Act—

(a) services specified in subsection (2) that are provided from places in the United Kingdom and otherwise than by the BBC;

(b) services so specified that do not fall within paragraph (a) but are provided by a person, other than the BBC, whose principal place of business is in the United Kingdom.

(2) The services referred to in subsection (1)(a) are— (a) sound broadcasting services to which subsection (3) applies; (b) radio licensable content services; (c) additional radio services; (d) radio multiplex services; (e) digital sound programme services; (f) digital additional sound services.

(3) This subsection applies to a sound broadcasting service which— (a) is provided with a view to its being broadcast otherwise than only from a

satellite; and (b) is a national service, local service or restricted service.

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(4) For the purposes of this section— (a) a service is a national service if it is a sound broadcasting service provided as

mentioned in subsection (3)(a) with a view to its being broadcast for reception in any such minimum area of the United Kingdom as may be determined in accordance with section 98(2) of the 1990 Act;

(b) a service is a local service if it is a sound broadcasting service which (without being a national service) is provided as mentioned in subsection (3)(a) with a view to its being broadcast for reception in a particular area or locality in the United Kingdom; and

(c) a service is a restricted service if it is a sound broadcasting service provided as mentioned in subsection (3)(a) with a view to its being broadcast for reception—

(i) within a particular establishment in the United Kingdom or at another defined location in the United Kingdom; or

(ii) for the purposes of a particular event taking place within the United Kingdom.

(5) The services that are to be treated for the purposes of this section as provided from places in the United Kingdom include every radio licensable content service which would not fall to be so treated apart from this subsection but which—

(a) is provided with a view to its being broadcast from a satellite; (b) is a service the broadcasting of which involves its transmission to the satellite

by means of an electronic communications network from a place in the United Kingdom; and

(c) is not a service the provision of which is licensed or otherwise authorised under the laws of another EEA State.

(6) The services that are to be treated as so provided also include every service provided by a BBC company, a C4 company or an S4C company.

(7) A reference in subsection (4)(b) to an area of the United Kingdom does not include an area which comprises or includes the whole of England.

Commencement Information I398 S. 245 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

246 Abolition of function of assigning radio frequencies

The Secretary of State shall cease to have any function under the 1990 Act or the 1996 Act of assigning frequencies—

(a) for any of the purposes of Part 3 of the 1990 Act (regulation of radio services); or

(b) for the purposes of the provision of any radio multiplex services.

Commencement Information I399 S. 246 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Radio licensable content services

247 Meaning of “radio licensable content services”

(1) In this Part “radio licensable content service” means (subject to section 248) any service falling within subsection (2) in so far as it is provided with a view to its availability for reception by members of the public being secured by one or both of the following means—

(a) the broadcasting of the service (whether by the person providing it or by another) from a satellite; or

(b) the distribution of the service (whether by that person or by another) by any means involving the use of an electronic communications network.

(2) A service falls within this subsection if it— (a) consists of sound programmes; and (b) is provided (whether in digital or in analogue form) as a service that is to be

made available for reception by members of the public.

Commencement Information I400 S. 247 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

248 Services that are not radio licensable content services

(1) A service is not a radio licensable content service to the extent that— (a) it is provided with a view to its being broadcast by means of a multiplex

service; (b) it is a sound broadcasting service to which subsection (3) of section 245

applies; or (c) it is comprised in a television licensable content service.

(2) A service is not a radio licensable content service to the extent that it is provided by means of an electronic communications service if—

(a) it forms part only of a service provided by means of that electronic communications service or is one of a number of services access to which is made available by means of a service so provided; and

(b) the service of which it forms part, or by which it may be accessed, is provided for purposes that do not consist wholly or mainly in making available services of radio programmes or television programmes (or both) for reception by members of the public.

(3) A service is not a radio licensable content service if it is a two-way service.

(4) A service is a two-way service for the purposes of subsection (3) if it is provided by means of an electronic communications network and an essential feature of the service is that the purposes for which it is provided involve the use of that network, or a part of it, both—

(a) for the transmission of sounds by the person providing the service to users of the service; and

(b) for the transmission of sounds by those users for reception by the person providing the service or by other users of the service.

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(5) A service is not a radio licensable content service if— (a) it is distributed by means of an electronic communications network only to

persons all of whom are on a single set of premises; and (b) that network is wholly within those premises and is not connected to an

electronic communications network any part of which is outside those premises.

(6) For the purposes of subsection (5)— (a) a set of premises is a single set of premises if, and only if, the same person is

the occupier of all the premises; and (b) two or more vehicles are capable of constituting a single set of premises if,

and only if, they are coupled together.

(7) A service is not a radio licensable content service if it is provided for the purpose only of being received by persons who have qualified as users of the service by reason of being—

(a) persons who have a business interest in the programmes included in the service; or

(b) persons who are to receive the programmes for the purpose only of allowing them to be listened to by persons falling within sub-paragraph (a) or by persons all of whom are on the business premises of the person receiving them.

(8) For the purposes of subsection (7) a person has a business interest in programmes if he has an interest in receiving or listening to them—

(a) for the purposes of a business carried on by him; or (b) for the purposes of his employment.

(9) In this section— “business premises”, in relation to a person, means premises at or from which

any business of that person is carried on; “multiplex service” means a television multiplex service, a radio multiplex

service or a general multiplex service; “premises” includes a vehicle; “vehicle” includes a vessel, aircraft or hovercraft.

(10) References in this section, in relation to a person, to a business include references to— (a) any business or other activities carried on by a body of which he is a member

and the affairs of which are managed by its members; and (b) the carrying out of any functions conferred on that person, or on any such

body, by or under any enactment.

Commencement Information I401 S. 248 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

249 Modification of ss. 247 and 248

(1) The Secretary of State may by order modify any of the provisions of section 247 or 248 if it appears to him appropriate to do so having regard to any one or more of the following—

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(a) the protection which is expected by members of the public as respects the contents of sound programmes;

(b) the practicability of applying different levels of regulation in relation to different services;

(c) the financial impact for providers of particular services of any modification of the provisions of that section; and

(d) technological developments that have occurred or are likely to occur.

(2) The Secretary of State may also by order provide, in cases where it otherwise appears to him appropriate to do so, that a description of service specified in the order is not to be treated as a radio licensable content service for the purposes of the provisions of this Act that are so specified.

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

Commencement Information I402 S. 249 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

250 Licensing of radio licensable content services

(1) The licence that is required for the purposes of section 97 of the 1990 Act in respect of a radio licensable content service is a licence granted under Part 3 of that Act on an application complying with this section.

(2) An application for a licence under Part 3 of the 1990 Act to provide a radio licensable content service—

(a) must be made in such manner, (b) must contain such information about the applicant, his business and the service

he proposes to provide, and (c) must be accompanied by such fee (if any),

as OFCOM may determine.

(3) Sections 109 to [F455 111B ] of the 1990 Act (enforcement of licences) apply in relation to licences for radio licensable content services as they apply in relation to licences under Chapter 2 of Part 3 of the 1990 Act but with—

(a) the substitution of the word “ or ” for paragraph (b) of subsection (1) of section 110 (power to shorten licence period); and

(b) the omission of “(b)” in subsection (4) of that section and of subsection (5) of that section (which refer to the power disapplied by paragraph (a) of this subsection).

Textual Amendments F455 Word in s. 250(3) substituted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 91(3), 118(2)

Commencement Information I403 S. 250 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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251 Abolition of separate licences for certain sound services

(1) The authorisations that are to be capable of being granted on or after the radio transfer date by or under a licence under Part 3 of the 1990 Act do not include the authorisation of the provision, as such, of—

(a) any satellite service (as defined, disregarding its repeal by this Act, in section 84(2)(b) of the 1990 Act); or

(b) any licensable sound programme service (as defined, disregarding its repeal by this Act, in section 112(1) of that Act).

(2) Subsection (1) does not affect OFCOM’s power, by means of a licence authorising the provision of a service falling within section 245(1), to authorise the provision of so much of any formerly regulated radio service as is comprised in the licensed service.

(3) So much of any relevant existing licence as authorises the provision of a service which consists in or includes a radio licensable content service—

(a) shall have effect, on and after the radio transfer date, as a licence under Part 3 of the 1990 Act authorising the provision of the radio licensable content service comprised in the licensed service;

(b) shall so have effect as a licence which, notwithstanding its terms and conditions, is to continue in force until such time as it is surrendered or is revoked in accordance with provisions of the 1990 Act; and

(c) shall otherwise have effect as a licence on the same terms and conditions as those on which it had effect immediately before the radio transfer date.

(4) It shall be the duty of OFCOM to exercise their power under section 86 of the 1990 Act to make such variations of any licence having effect in accordance with subsection (3) of this section as (after complying with subsection (5)(b) of that section) they consider appropriate for the purpose of performing their duty under section 263 of this Act.

(5) In this section— “formerly regulated radio service” means a service mentioned in

subsection (1); and “relevant existing licence” means any licence which—

(a) was granted by the Radio Authority under Part 3 of the 1990 Act before the radio transfer date; and

(b) is in force immediately before the radio transfer date as a licence authorising the provision of a formerly regulated service.

Commencement Information I404 S. 251 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licence periods etc.

252 Extension of licence periods

(1) In subsection (1) of section 86 of the 1990 Act (period of licences), for the words from “for such period” onwards there shall be substituted “(subject to a suspension of the licence under section 111B)—

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(a) in the case of a licence to provide radio licensable content services, until such time as it is surrendered or is revoked in accordance with any of the following provisions of this Part; and

(b) in any other case, until whichever is the earlier of any such time or the end of the period specified in the licence.”

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

“(3) A licence to provide a local or national service or to provide an additional service must specify a period of no more than twelve years as the period for which it is to be in force.”

Commencement Information I405 S. 252 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

253 Extension and modification of existing licences

(1) A person who immediately before the radio transfer date holds a pre-transfer national licence or a pre-transfer local licence is entitled, in accordance with the following provisions of this section, to apply to OFCOM for an extension of the licence.

(2) The period for which a licence may be extended on such an application is a period ending not more than four years after the end of the period for which it was granted originally or (if it has been renewed) for which it was last renewed.

(3) An application under subsection (1) may only be made in the period which— (a) begins three years before the date on which the licence would otherwise

expire; and (b) ends three months before the day that OFCOM have determined to be the day

by which they would need to publish a notice under section 98(1) or 104(1) of the 1990 Act if they were proposing to grant a fresh licence to take effect from that date.

(4) A determination for the purposes of subsection (3)(b)— (a) must be made at least one year before the day determined; and (b) must be notified by OFCOM to the person who holds the licence in question.

(5) An application under subsection (1)— (a) must be made in such manner, (b) must contain such information about the applicant, his business and the service

he proposes to provide, and (c) must be accompanied by such fee (if any),

as OFCOM may determine.

(6) If, on an application for an extension under subsection (1), OFCOM are satisfied as to the matters mentioned in subsection (7), they shall—

(a) modify the licence by extending the period for which the licence is to be in force by such period authorised by subsection (2) as they think fit; and

(b) make such other modifications as appear to them to be necessary for the purpose of securing that the provisions of the licence correspond to those that would be contained in a national sound broadcasting licence or (as the case

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may be) a local sound broadcasting licence granted after the radio transfer date.

(7) Those matters are— (a) the ability of the licence holder to maintain the service for the period of the

extension; and (b) the likelihood of a contravention by the licence holder of a requirement

imposed by— (i) a condition included in the licence by virtue of section 106 of the 1990

Act; or (ii) a condition of the licence varied in accordance with subsection (8).

(8) For the purposes of the modification under this section of a national licence, OFCOM—

(a) shall determine an amount which is to be payable to OFCOM by the licence holder in respect of the first complete calendar year falling within the period for which the licence is extended; and

(b) may, in relation to any accounting period of the licence holder during the period of the extension, modify a condition included in the licence in pursuance of section 102(1)(c) of the 1990 Act (additional payments to be made in respect of national licences) by specifying a different percentage of the qualifying revenue for that accounting period from that which was previously specified in the condition.

(9) The amount determined by OFCOM under subsection (8)(a) must be the amount which, in OFCOM’s opinion, would have been the cash bid of the licence holder were the licence (instead of being extended) being granted afresh on an application made in accordance with section 98 of the 1990 Act.

(10) For the purposes of subsection (8)(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.

(11) The modifications set out in accordance with subsection (6)(b) must secure— (a) that the amount falling to be paid under the conditions of the licence for each

calendar year subsequent to that for which an amount has been determined in accordance with subsection (8)(a) is the amount so determined as increased by the appropriate percentage; and

(b) that such adjustments as are appropriate are made as respects sums already paid in respect of any year or accounting period to which a modification under subsection (8) applies.

(12) Where OFCOM have granted a person’s application under this section, the extensions and modifications take effect only if that person—

(a) has been notified by OFCOM of their proposals for modifications by virtue of subsection (6)(b) or (8)(b), and for the making of a determination under subsection (8)(a); and

(b) has consented to the extension on the terms proposed.

(13) In this section— “the appropriate percentage” has the same meaning as in section 102 of the

1990 Act;

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“national sound broadcasting licence” means a licence under Part 3 of the 1990 Act to provide a sound broadcasting service which, under subsection (4) (a) of section 245 is a national service for the purposes of that section;

“pre-transfer licence” means a licence which was granted under Part 3 of the 1990 Act before the radio transfer date and has not been modified under this section or renewed at any time on or after that date;

“pre-transfer local licence” means a pre-transfer licence which was granted as a local licence (within the meaning of Part 3 of the 1990 Act, as it had effect without the amendments made by this Act);

“pre-transfer national licence” means a pre-transfer licence granted or last renewed as a national licence (within the meaning of Part 3 of the 1990 Act, as it had effect without the amendments made by this Act).

Commencement Information I406 S. 253 in force at 2.1.2004 by S.I. 2003/3142, art. 4(1) (with art. 11)

254 Renewal of local licences

In section 104A(5) of the 1990 Act (conditions of renewal of local licence), after paragraph (b) there shall be inserted—

“(c) 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;”.

Commencement Information I407 S. 254 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

255 Extension of special application procedure for local licences

In section 104B(1) of the 1990 Act (special application procedure for local licences for areas with 4.5 million residents or fewer)—

(a) the word “ and ” shall be inserted at the end of paragraph (a); and (b) paragraph (b) (which excludes areas with more than 4.5 million residents)

shall cease to have effect.

Commencement Information I408 S. 255 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Provision of simulcast radio services

256 Definition of simulcast radio services

(1) In section 41 of the 1996 Act (meaning of simulcast radio service), for subsection (2) there shall be substituted—

“(2) In this Part, a “simulcast radio service” means a service provided by a person for broadcasting in digital form and corresponding to a service which is a national service within the meaning of Part 3 of the 1990 Act and is provided by that person.”

(2) In subsection (1) of section 126 of the 1990 Act (interpretation of Part 3), before the definition of “sound broadcasting service” there shall be inserted—

““simulcast radio service” means a simulcast radio service within the meaning given by section 41(2) of the Broadcasting Act 1996 for the purposes of Part 2 of that Act;”.

(3) After that subsection there shall be inserted—

“(1A) For the purposes of this Part a simulcast radio service corresponds to a national service if, in accordance with section 41(3) of the Broadcasting Act 1996, it falls to be treated as so corresponding for the purposes of Part 2 of that Act.”

Commencement Information I409 S. 256 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

257 Promotion of simulcast radio services

(1) Chapter 2 of Part 3 of the 1990 Act (sound broadcasting services) shall be amended as follows.

(2) In section 98(1) (notices of proposals to grant national licences), after paragraph (b) (ii) there shall be inserted—

“(iia) the digital capacity that is likely, in their opinion, to be available from the holders of national radio multiplex licences for the broadcasting of a simulcast radio service corresponding to the service;”.

(3) In section 98(3) (applications for national licences), after paragraph (a) there shall be inserted—

“(aa) the applicant’s proposals (if any) for providing a simulcast radio service corresponding to the service;”.

(4) In section 98(7) (construction of section), after “this section” there shall be inserted—

““national radio multiplex licence” has the same meaning as in Part 2 of the Broadcasting Act 1996; and”.

(5) In section 100 (award of national licence to person submitting highest cash bid), for subsection (2) there shall be substituted—

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“(1A) If, in a case in which one or more of the applicants has made a proposal to provide a simulcast radio service corresponding to the service to be licensed (a “simulcast applicant”), the highest cash bid is made by an applicant who is not a simulcast applicant, OFCOM may—

(a) disregard the requirement imposed by subsection (1); and (b) award the licence to the simulcast applicant whose cash bid is the

highest of the bids submitted by simulcast applicants.

(2) Where— (a) two or more applicants for a licence have submitted cash bids

specifying an identical amount and that amount is higher than the amount of every other bid, or

(b) two or more simulcast applicants have submitted cash bids specifying an identical amount and that amount is higher than the amount of every other bid submitted by a simulcast applicant,

OFCOM must invite those applicants and (in a case falling within paragraph (b)) every applicant who has made a higher bid to submit further cash bids in respect of that licence.

(2A) OFCOM may decide not to invite an applicant to submit a further cash bid under subsection (2) if—

(a) the applicant is not a simulcast applicant and they propose to exercise their power under subsection (1A); or

(b) they propose to exercise their power under subsection (3).

(2B) Subsection (2A) is not to be construed as preventing OFCOM from making a decision to exercise their power under subsection (1A) or (3) after they have received further bids in response to invitations under subsection (2).

(2C) In this Part references to a person’s cash bid, in relation to a person who has submitted a further cash bid in pursuance of subsection (2), have effect as references to his further bid.”

(6) After section 100 there shall be inserted—

100A Licence conditions relating to simulcast radio services

Where OFCOM award a national licence to a person whose application for that licence included proposals to provide a simulcast radio service, that licence must include a condition requiring the licence holder—

(a) to provide, from a date specified in the licence, a simulcast radio service corresponding to the licensed service; and

(b) to do all that he can to secure the broadcasting of that service.”

Commencement Information I410 S. 257 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Multiplexes broadcasting sound programmes

258 Radio multiplex services

(1) Subject to the following provisions of this section, references in Part 2 of the 1996 Act to a radio multiplex service shall have effect as references to any service which—

(a) falls within subsection (2); (b) is provided for broadcasting for general reception but otherwise than from a

satellite; and (c) is not a television multiplex service.

(2) A service falls within this subsection if— (a) it consists in the packaging together (with or without other services) of two

or more relevant sound services which are provided for inclusion together in that service by a combination of the relevant information in digital form; or

(b) it is a service provided with a view to its being a service falling within paragraph (a) but is one in the case of which only one relevant sound service is for the time being comprised in digital form in what is provided.

(3) The provision, at a time after the commencement of this section, of a radio multiplex service the provision of which is not authorised by or under a licence under Part 2 of the 1996 Act is not to be an offence under section 97 of the 1990 Act.

(4) Accordingly, after the commencement of this section, a licence under Part 2 of the 1996 Act shall be required for the provision of a radio multiplex service only in so far as it is required for the purposes of a limitation falling within subsection (5) which is contained in a wireless telegraphy licence, or is deemed to be so contained.

(5) A limitation falls within this subsection, in relation to a wireless telegraphy licence, if it provides that the only radio multiplex services that are authorised to be broadcast using the station or apparatus to which the licence relates are those that are licensed under Part 2 of the 1996 Act.

(6) Where immediately before the coming into force of this section— (a) a radio multiplex service is licensed under Part 2 of the 1996 Act; and (b) that service is one broadcast using a station or apparatus the use of which is

authorised by a wireless telegraphy licence, that wireless telegraphy licence shall be deemed to contain a limitation falling within subsection (5).

(7) In any case where a wireless telegraphy licence is deemed by virtue of subsection (6) to contain a limitation falling within subsection (5) and the person providing the radio multiplex service in question—

(a) ceases to be licensed under Part 2 of the 1996 Act in respect of that service, or (b) ceases to exist,

OFCOM may revoke the wireless telegraphy licence.

(8) Subsection (7) is not to be construed as restricting the powers of revocation exercisable apart from this section.

(9) In subsection (2) “relevant sound service” means any of the following— (a) a digital sound programme service; (b) a simulcast radio service; and

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(c) a digital additional sound service.

Commencement Information I411 S. 258 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F456258ASmall-scale radio multiplex services

(1) The Secretary of State may by order make provision about radio multiplex services that are provided for particular areas or localities in the United Kingdom and are of a description specified by the order (“small-scale radio multiplex services”).

(2) An order under this section describing a small-scale radio multiplex service may make provision by reference to the size of the area or locality in relation to which such a service may be provided.

(3) An order under this section may provide for— (a) any provision of Part 2 of the 1996 Act, and (b) any provision of this Part (apart from this section and the provisions relating

exclusively to sound broadcasting services or television services), to have effect in relation to small-scale radio multiplex services with such modifications as the Secretary of State considers appropriate.

(4) An order under this section may in particular— (a) provide for the duration of a small-scale radio multiplex licence to be

determined by OFCOM, within limits specified in the order; (b) make provision as to eligibility to hold a small-scale radio multiplex licence,

including provision disqualifying persons who have an interest in a national or local radio multiplex service;

(c) require small-scale radio multiplex services to be provided on a non- commercial basis;

(d) provide for OFCOM to have regard to the effect of awarding a small-scale radio multiplex licence on holders of local radio multiplex licences;

(e) provide for capacity on a small-scale radio multiplex service to be reserved for broadcasting services of a description set out in an order under section 262;

(f) make provision about the amount of capacity that may be so reserved; (g) make provision about the services broadcast by means of a small-scale radio

multiplex service, including provision about broadcasting services licensed by local digital sound programme licences or services of a description set out in an order under section 262.

(5) The power, by order under this section, to make different provision for different cases includes power to make different provision depending on—

(a) whether or not, at a particular time, an area or locality is to a significant extent within the coverage area of one or more local radio multiplex services, and

(b) the size of the coverage area of that local radio multiplex service or those local radio multiplex services.

(6) The power, by order under this section, to make incidental, supplemental or consequential provision includes power to make incidental, supplemental or

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consequential provision modifying provisions of the 1996 Act or this Act not mentioned in subsection (3).

(7) In this section “small-scale radio multiplex licence” means a licence to provide a small-scale radio multiplex service.

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

Textual Amendments F456 S. 258A inserted (27.6.2017) by Broadcasting (Radio Multiplex Services) Act 2017 (c. 12), ss. 1, 2(3)

259 Composition of services in radio multiplexes

(1) Section 54 of the 1996 Act (conditions attached to radio multiplex licences) shall be amended as follows.

(2) For paragraph (h) of subsection (1) (conditions as to composition of service) there shall be substituted—

“(h) that, while the licence is in force, at least the required percentage of the digital capacity on the frequency or frequencies on which the service is broadcast is used, or left available to be used, for the broadcasting of services falling within subsection (1A).”

(3) After that subsection there shall be inserted—

“(1A) The services falling within this subsection are— (a) digital sound programme services; (b) simulcast radio services; (c) programme-related services; and (d) relevant technical services.”

(4) In subsection (2) (meaning of services referred to in paragraph (h) of subsection (1))— (a) for “paragraph (1)(h)” there shall be substituted “ subsection (1A) ”; and (b) in sub-paragraph (i), for the words from “(within” to “1990 Act” there shall

be substituted “ (within the meaning of section 245 of the Communications Act 2003) ”.

(5) After that subsection there shall be inserted—

“(2A) In subsection (1)(h), the reference to the required percentage is a reference to such percentage equal to or more than 80 per cent. as OFCOM—

(a) consider appropriate; and (b) specify in the condition.”

(6) In subsection (3) (power to vary percentage in subsection (1)(h))— (a) for “subsection (1)” there shall be substituted “ subsection (2A) ”; and (b) for “paragraph (h) of that subsection” there shall be substituted “ that

subsection ”.

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Commencement Information I412 S. 259 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

260 Digital sound services for inclusion in non-radio multiplexes

(1) In section 60(1)(a) of the 1996 Act (national digital sound programme services defined as services broadcast with a view to being broadcast by means of a national radio multiplex service), after “national radio multiplex service” there shall be inserted “ , by means of a television multiplex service or by means of a general multiplex service ”.

(2) In section 63(1) of the 1996 Act (meaning of digital additional sound service), for paragraph (a) there shall be substituted—

“(a) is provided by a person with a view to its being broadcast in digital form (whether by him or some other person) so as to be available for reception by members of the public;

(aa) is so provided with a view to the broadcasting being by means of a radio multiplex service or by means of a general multiplex service; and”.

(3) After subsection (3) of section 63 of the 1996 Act there shall be inserted—

“(3A) In this section “available for reception by members of the public” shall be construed in accordance with section 361 of the Communications Act 2003.”

(4) In section 72(1) of the 1996 Act (interpretation of Part 2)— (a) after the definitions of “digital sound programme service” and “digital sound

programme licence” there shall be inserted—

““general multiplex service” has the same meaning as in Part 3 of the Communications Act 2003;”

(b) after the definition of “technical service” there shall be inserted—

““television multiplex service” has the meaning given by section 241 of the Communications Act 2003.”

Commencement Information I413 S. 260 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

261 Renewal of radio multiplex licences

In section 58(2) of the 1996 Act (renewal for twelve years of radio multiplex licences granted within six years of commencement)—

(a) for “which is granted within six years” there shall be substituted “ granted within ten years ”; and

(b) for the words from “for a period” onwards there shall be substituted— “(a) in the case of a licence granted within six years of that

commencement, for a period of twelve years beginning with the date on which it would otherwise expire; and

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(b) in any other case, for a period of eight years beginning with that date.”

Commencement Information I414 S. 261 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Community radio

262 Community radio

(1) The Secretary of State may by order provide for— (a) any of the provisions of this Part (apart from this section and the provisions

relating exclusively to television), or (b) any provision of Part 3 of the 1990 Act or of Part 2 of the 1996 Act (regulation

of radio services), to have effect, in relation to services of such descriptions as may be set out in an order under this section, with such modifications as he considers necessary or appropriate for services of that description.

(2) The Secretary of State is not to make an order under this section in relation to a description of services unless—

(a) the description is of services to be provided primarily for the good of members of the public or of a particular community, rather than for commercial reasons; and

(b) he considers that the provision of services of that description confer, or would confer, significant benefits on the public or on the communities for which they are provided.

(3) An order under this section in relation to a description of services may, in particular, impose prohibitions or limitations on the inclusion of advertisements in services of that description and on the sponsorship of programmes included in the services.

(4) The power, by an order under this section, to make incidental, supplemental or consequential provision in connection with provision authorised by subsection (1) includes power to make incidental, supplemental or consequential provision modifying provisions of the 1990 Act, the 1996 Act or this Act that are not mentioned in that subsection.

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

Commencement Information I415 S. 262 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

CHAPTER 4

REGULATORY PROVISIONS F457

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F458

Application of regulatory regimes

263 Application of regulatory regimes

(1) It shall be the duty of OFCOM, by exercising— (a) their powers under the 1990 Act and the 1996 Act, and (b) their powers under this Part,

to secure that the holder of every Broadcasting Act licence at all times holds his licence on the conditions which are for the time being included, under this Chapter and Chapter 5 of this Part, in the regulatory regime for the licensed service.

(2) It shall also be the duty of OFCOM to do all that they can to secure that the holder of every such licence complies, in relation to the licensed service, with the conditions so included in the regulatory regime for that service.

(3) Where— (a) the licence for a Channel 3 service, for Channel 4, for Channel 5 or for

the public teletext service (“the main service”) authorises or requires a corresponding or additional service to be provided in analogue form, and

(b) the regulatory regime for the main service imposes obligations in relation to programmes and other items included in that service,

those obligations are to apply equally to programmes that are included in the analogue service without being included in the main service.

[F459(4) The Secretary of State may by order provide for— (a) a condition included by virtue of this Act in a regulatory regime to be excluded

from the regime; (b) a condition excluded from a regulatory regime by an order under this

subsection to be included in the regime again.

(4A) An order under subsection (4) may, in particular, provide for a condition to be included or excluded for a period specified in the order.]

(5) No order is to be made containing provision authorised by subsection (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(6) This section does not restrict OFCOM’s powers and duties apart from this section to impose obligations by means of the inclusion of conditions in a Broadcasting Act licence.

Textual Amendments F459 S. 263(4)(4A) substituted for s. 263(4) (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 37, 47(1)

Commencement Information I416 S. 263 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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The public service remit for television

264 OFCOM reports on the fulfilment of the public service remit

(1) It shall be the duty of OFCOM— (a) as soon as practicable after the end of the period of twelve months beginning

with the commencement of this section, and (b) as soon as practicable after the end of each such subsequent period as may be

selected by OFCOM for the purposes of this section, to satisfy, for that period, the review and reporting obligations of subsection (3).

(2) The period selected by OFCOM for the purposes of subsection (1)(b) must be a period of not more than five years beginning with the end of the previous period for which OFCOM have satisfied those review and reporting obligations.

(3) The review and reporting obligations for a period are— (a) an obligation to carry out a review of the extent to which the public service

broadcasters have, during that period, provided relevant television services which (taking them all together over the period as a whole) fulfil the purposes of public service television broadcasting in the United Kingdom; and

(b) an obligation, with a view to maintaining and strengthening the quality of public service television broadcasting in the United Kingdom, to prepare a report on the matters found on the review.

(4) The purposes of public service television broadcasting in the United Kingdom are— (a) the provision of relevant television services which secure that programmes

dealing with a wide range of subject-matters are made available for viewing; (b) the provision of relevant television services in a manner which (having regard

to the days on which they are shown and the times of day at which they are shown) is likely to meet the needs and satisfy the interests of as many different audiences as practicable;

(c) the provision of relevant television services which (taken together and having regard to the same matters) are properly balanced, so far as their nature and subject-matters are concerned, for meeting the needs and satisfying the interests of the available audiences; and

(d) the provision of relevant television services which (taken together) maintain high general standards with respect to the programmes included in them, and, in particular with respect to—

(i) the contents of the programmes; (ii) the quality of the programme making; and

(iii) the professional skill and editorial integrity applied in the making of the programmes.

(5) When— (a) determining the extent to which any of the purposes of public service

television broadcasting in the United Kingdom are fulfilled, and (b) reviewing and reporting on that matter,

OFCOM must have regard to the desirability of those purposes being fulfilled in a manner that is compatible with subsection (6).

(6) A manner of fulfilling the purposes of public service television broadcasting in the United Kingdom is compatible with this subsection if it ensures—

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(a) that the relevant television services (taken together) comprise a public service for the dissemination of information and for the provision of education and entertainment;

(b) that cultural activity in the United Kingdom, and its diversity, are reflected, supported and stimulated by the representation in those services (taken together) of drama, comedy and music, by the inclusion of feature films in those services and by the treatment of other visual and performing arts;

(c) that those services (taken together) provide, to the extent that is appropriate for facilitating civic understanding and fair and well-informed debate on news and current affairs, a comprehensive and authoritative coverage of news and current affairs in, and in the different parts of, the United Kingdom and from around the world;

(d) that those services (taken together) satisfy a wide range of different sporting and other leisure interests;

(e) that those services (taken together) include what appears to OFCOM to be a suitable quantity and range of programmes on educational matters, of programmes of an educational nature and of other programmes of educative value;

(f) that those services (taken together) include what appears to OFCOM to be a suitable quantity and range of programmes dealing with each of the following, science, religion and other beliefs, social issues, matters of international significance or interest and matters of specialist interest;

(g) that the programmes included in those services that deal with religion and other beliefs include—

(i) programmes providing news and other information about different religions and other beliefs;

(ii) programmes about the history of different religions and other beliefs; and

(iii) programmes showing acts of worship and other ceremonies and practices (including some showing acts of worship and other ceremonies in their entirety);

(h) that those services (taken together) include what appears to OFCOM to be a suitable quantity and range of high quality and original programmes for children and young people;

(i) that those services (taken together) include what appears to OFCOM to be a sufficient quantity of programmes that reflect the lives and concerns of different communities and cultural interests and traditions within the United Kingdom, and locally in different parts of the United Kingdom;

(j) that those services (taken together), so far as they include programmes made in the United Kingdom, include what appears to OFCOM to be an appropriate range and proportion of programmes made outside the M25 area.

(7) In carrying out a review under this section OFCOM must consider— (a) the costs to persons providing relevant television services of the fulfilment of

the purposes of public service television broadcasting in a manner compatible with subsection (6); and

(b) the sources of income available to each of them for meeting those costs.

(8) Every report under this section must— (a) specify, and comment on, whatever changes appear to OFCOM to have

occurred, during the period to which the report relates, in the extent to which

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the purposes of public service television broadcasting in the United Kingdom have been satisfied;

(b) specify, and comment on, whatever changes appear to OFCOM to have occurred, during that period, in the manner in which those purposes are fulfilled;

(c) set out the findings of OFCOM on their consideration of the matters mentioned in subsection (7) and any conclusions they have arrived at in relation to those findings; and

(d) set out OFCOM’s conclusions on the current state of public service television broadcasting in the United Kingdom.

(9) In performing their duties under this section, OFCOM must have regard, in particular, to—

(a) every statement of programme or service policy which has been made by virtue of this Chapter by a public service broadcaster, or which is treated as such a statement;

(b) every equivalent statement of policy made by the BBC in pursuance of the BBC Charter and Agreement; and

(c) such matters arising at times before the coming into force of this section as OFCOM consider material.

(10) Every report prepared by OFCOM under this section must be published by them— (a) as soon as practicable after its preparation is complete; and (b) in such manner as they consider appropriate.

(11) The following are relevant television services for the purposes of this section— (a) the television broadcasting services provided by the BBC; (b) the television programme services that are public services of the Welsh

Authority (within the meaning of section 207); (c) every Channel 3 service; (d) Channel 4; (e) Channel 5; (f) the public teletext service.

(12) The following are public service broadcasters for the purposes of this section— (a) the BBC; (b) the Welsh Authority; (c) the providers of the licensed public service channels; and (d) the public teletext provider.

(13) In this section— “belief” means a collective belief in, or other adherence to, a systemised set

of ethical or philosophical principles or of mystical or transcendental doctrines; and

“drama” includes contemporary and other drama in a variety of different formats.

Commencement Information I417 S. 264 in force at 25.7.2003 by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 4)

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[F460264AOFCOM reports: wider review and reporting obligations

(1) When carrying out a review under section 264 for a period, OFCOM must also carry out a review of the extent to which material included in media services during that period (taken together over the period as a whole) contributed towards the fulfilment of the public service objectives.

(2) Every report under section 264 must— (a) include a report on the matters found on the review under this section, (b) specify, and comment on, whatever changes appear to OFCOM to have

occurred, during the period to which the report relates, in the extent to which the public service objectives have been fulfilled,

(c) specify, and comment on, whatever changes appear to OFCOM to have occurred, during that period, in the manner in which those objectives are fulfilled, and

(d) set out OFCOM's conclusions on the current state of material included in media services.

(3) “The public service objectives” are the objectives set out in paragraphs (b) to (j) of section 264(6) (as modified by subsection (4)).

(4) Paragraphs (b) to (j) of section 264(6) have effect for the purposes of subsection (3) as if—

(a) references to the relevant television services were to media services, and (b) references to programmes were to material included in such services.

(5) In this section— “material” does not include advertisements; “media services” means any of the following services that are available to

members of the public in all or part of the United Kingdom— (a) television and radio services, (b) on-demand programme services, and (c) other services provided by means of the internet where there is a person

who exercises editorial control over the material included in the service.

(6) The services that are to be taken for the purposes of this section to be available to members of the public include any service which—

(a) is available for reception by members of the public (within the meaning of section 361); or

(b) is available for use by members of the public (within the meaning of section 368R(4)).]

Textual Amendments F460 S. 264A inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 2, 47(1)

265 Public service remits of licensed providers

(1) The regulatory regime for every licensed public service channel, and for the public teletext service, includes a condition requiring the provider of the channel or service to fulfil the public service remit for that channel or service.

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(2) The public service remit— (a) for every Channel 3 service, and (b) for Channel 5,

is the provision of a range of high quality and diverse programming.

(3) The public service remit for Channel 4 is the provision of a broad range of high quality and diverse programming which, in particular—

(a) demonstrates innovation, experiment and creativity in the form and content of programmes;

(b) appeals to the tastes and interests of a culturally diverse society; (c) makes a significant contribution to meeting the need for the licensed public

service channels to include programmes of an educational nature and other programmes of educative value; and

(d) exhibits a distinctive character.

(4) The public service remit for the public teletext service is the provision of a range of high quality and diverse text material.

(5) For so long as the public teletext service comprises both— (a) an analogue teletext service, and (b) a teletext service provided in digital form,

the conditions imposed under this section must require the public service remit of the public teletext service to be fulfilled separately in the case of each of those services.

Commencement Information I418 S. 265 in force at 28.12.2004 by S.I. 2004/3309, art. 3

266 Statements of programme policy

(1) The regulatory regime for every licensed public service channel includes a condition requiring the provider of the channel—

(a) as soon as practicable after the coming into force of this section and subsequently at annual intervals, to prepare a statement of programme policy; and

(b) to monitor his own performance in the carrying out of the proposals contained in the statements made in pursuance of the condition.

(2) The condition must require every statement of programme policy prepared in accordance with the condition to set out the proposals of the provider of the channel for securing that, during the following year—

(a) the public service remit for the channel will be fulfilled; and (b) the duties imposed on the provider by virtue of sections 277 to 296 will be

performed.

(3) The condition must also require every such statement to contain a report on the performance of the provider of the channel in the carrying out, during the period since the previous statement, of the proposals contained in that statement.

(4) The condition must also provide that every such statement—

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(a) must be prepared having regard to guidance given by OFCOM; (b) must be prepared taking account of the reports previously published by

OFCOM under sections 264 and 358; (c) must take special account of the most recent such reports; (d) must be published by the provider of the channel in question as soon as

practicable after its preparation is complete; and (e) must be published in such manner as, having regard to any guidance given by

OFCOM, the provider considers appropriate.

(5) In preparing guidance about the preparation of such a statement, OFCOM must have regard, in particular, to the matters which, in the light of the provisions of section 264(4) and (6), they consider should be included in statements of programme policy.

(6) It shall be the duty of OFCOM— (a) from time to time to review the guidance for the time being in force for the

purposes of this section; and (b) to make such revisions of that guidance as they think fit.

(7) The conditions of a licence to provide a licensed public service channel may provide that a previous statement of policy made by the provider of the channel is to be treated for the purposes of this Part—

(a) as if it were a statement made in relation to such period as may be so specified; and

(b) were a statement of programme policy for the purposes of a condition imposed under this section.

(8) The reference in subsection (7) to a previous statement of policy is a reference to any statement made by the provider of the channel—

(a) whether before or after the commencement of this section, for the purposes of his application for a Broadcasting Act licence for the channel; or

(b) at any time before the commencement of this section, for any other purpose.

(9) A condition under subsection (7) cannot contain provision the effect of which is to postpone the time at which a licence holder is required to make the first statement of programme policy which (apart from that subsection) he is required to make in pursuance of a condition imposed under this section.

Commencement Information I419 S. 266 in force at 28.12.2004 by S.I. 2004/3309, art. 3

267 Changes of programme policy

(1) The regulatory regime for every licensed public service channel includes a condition requiring compliance with subsection (2) in the case of a statement of programme policy containing proposals for a significant change.

(2) This subsection requires the provider of the channel— (a) to consult OFCOM before preparing the statement; and (b) to take account, in the preparation of the statement, of any opinions expressed

to the provider of the channel by OFCOM.

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(3) A condition imposed under this section must further provide that, if it appears to OFCOM that a statement of programme policy has been prepared by the provider of the channel in contravention of a condition imposed under subsection (1), the provider is—

(a) to revise that statement in accordance with any directions given to him by OFCOM; and

(b) to publish a revision of the statement in accordance with any such directions only after the revision has been approved by OFCOM.

(4) A change is a significant change for the purposes of this section if it is a change as a result of which the channel would in any year be materially different in character from in previous years.

(5) In determining for the purposes of any condition under this section whether a change is a significant change—

(a) regard must be had to any guidance issued by OFCOM; (b) the changes to be considered include any changes that, together with any

proposed change for a particular year, would constitute a change occurring gradually over a period of not more than three years; and

(c) the previous years with which a comparison is to be made must be those immediately preceding the year in which the change is made, or in which the changes comprised in it began to occur.

(6) It shall be the duty of OFCOM— (a) from time to time to review the guidance for the time being in force for the

purposes of this section; and (b) to make such revisions of that guidance as they think fit.

Commencement Information I420 S. 267 in force at 28.12.2004 by S.I. 2004/3309, art. 3

268 Statements of service policy by the public teletext provider

(1) The regulatory regime for the public teletext service includes a condition requiring the public teletext provider—

(a) as soon as practicable after the coming into force of this section and subsequently at annual intervals, to prepare a statement of service policy; and

(b) to monitor his own performance in the carrying out of the proposals contained in statements made in pursuance of the condition.

(2) The condition must require every statement of service policy prepared in accordance with the condition to set out the proposals of the public teletext provider for securing that, during the following year, the public service remit for the public teletext service will be fulfilled.

(3) The condition must also require every such statement to contain a report on the performance of the public teletext provider in the carrying out, during the period since the previous statement, of the proposals contained in that statement.

(4) The condition must provide that the proposals or report for a period in the course of which the public teletext service will comprise or has comprised both—

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(a) an analogue teletext service, and (b) a teletext service provided in digital form,

must deal separately with each of those services.

(5) The condition must also provide that every statement in pursuance of the condition— (a) must be prepared having regard to guidance given by OFCOM; (b) must be prepared taking account of the reports previously published by

OFCOM under sections 264 and 358; (c) must take special account of the most recent such reports; (d) must be published by the public teletext provider as soon as practicable after

its preparation is complete; and (e) must be published in such manner as, having regard to any guidance given by

OFCOM, that provider considers appropriate.

(6) In preparing guidance about the preparation of such a statement, OFCOM must have regard, in particular, to the matters which, in the light of the provisions of section 264(4) and (6), they consider should be included in statements of service policy by the public teletext provider.

(7) It shall be the duty of OFCOM— (a) from time to time to review the guidance for the time being in force for the

purposes of this section; and (b) to make such revisions of that guidance as they think fit.

(8) The conditions of the licence to provide the public teletext service may provide that a previous statement of policy made by the public teletext provider is to be treated for the purposes of this Part—

(a) as if it were a statement made in relation to such period as may be so specified; and

(b) were a statement of service policy for the purposes of a condition imposed under this section.

(9) The reference in subsection (8) to a previous statement of policy is a reference to any statement made by the public teletext provider—

(a) whether before or after the commencement of this section, for the purposes of his application for a Broadcasting Act licence for the public teletext service or for the existing service (within the meaning of section 221); or

(b) at any time before the commencement of this section, for any other purpose.

(10) A condition under subsection (8) cannot contain provision the effect of which is to postpone the time at which a licence holder is required to make the first statement of service policy which (apart from that subsection) he is required to make in pursuance of a condition imposed under this section.

Commencement Information I421 S. 268 in force at 28.12.2004 by S.I. 2004/3309, art. 3

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269 Changes of service policy

(1) The regulatory regime for the public teletext service includes a condition requiring compliance with subsection (2) in the case of a statement of service policy containing proposals for a significant change.

(2) This subsection requires the provider of the service— (a) to consult OFCOM before preparing the statement; and (b) to take account, in the preparation of the statement, of any opinions expressed

to the provider of the service by OFCOM.

(3) A condition imposed under this section must further provide that, if it appears to OFCOM that a statement of service policy has been prepared by the public teletext provider in contravention of a condition imposed under subsection (1), that provider is—

(a) to revise that statement in accordance with any directions given to him by OFCOM; and

(b) to publish a revision of the statement in accordance with any such directions only after the revision has been approved by OFCOM.

(4) A change is a significant change for the purposes of this section if it is a change as a result of which the service would in any year be materially different in character from in previous years.

(5) In determining for the purposes of any condition under this section whether a change is a significant change—

(a) regard must be had to any guidance issued by OFCOM; (b) the changes to be considered include any changes that, together with any

proposed change for a particular year, would constitute a change occurring gradually over a period of not more than three years;

(c) the previous years with which a comparison is to be made must be those immediately preceding the year in which the change is made, or in which the changes comprised in it began to occur; and

(d) any change that is a significant change in relation to so much of the public teletext service as is provided in digital form or in relation to so much of it as is provided in analogue form is to be regarded as a significant change in relation to the whole service.

(6) It shall be the duty of OFCOM— (a) from time to time to review the guidance for the time being in force for the

purposes of this section; and (b) to make such revisions of that guidance as they think fit.

Commencement Information I422 S. 269 in force at 28.12.2004 by S.I. 2004/3309, art. 3

270 Enforcement of public service remits

(1) This section applies if OFCOM are of the opinion that the provider of a licensed public service channel or the public teletext provider—

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(a) has failed to fulfil the public service remit for that channel or the public teletext service; or

(b) has failed, in any respect, to make an adequate contribution towards the fulfilment of the purposes of public service television broadcasting in the United Kingdom.

(2) This section does not apply unless— (a) OFCOM are of the opinion that the failure of the provider is serious and is not

excused by economic or market conditions; and (b) OFCOM determine that the situation requires the exercise of their powers

under this section.

(3) In making a determination under subsection (2)(b), OFCOM must have regard, in particular, to—

(a) the public service remit of that provider; (b) the statements of programme policy or statements of service policy made (or

treated as made) by the provider under section 266 or 268; (c) the record generally of the provider in relation to the carrying out of

obligations imposed by conditions of licences under the 1990 Act and the 1996 Act (including past obligations);

(d) the effectiveness and efficiency of the provider in monitoring his own performance; and

(e) general economic and market conditions affecting generally the providers of television programme services or the providers of television multiplex services, or both of them.

(4) OFCOM shall have power to give directions to the provider to do one or both of the following—

(a) to revise the provider’s latest statement of programme policy, or statement of service policy, in accordance with the directions; and

(b) to take such steps for remedying the provider’s failure as OFCOM may specify in the direction as necessary for that purpose.

(5) A direction given under this section must set out— (a) a reasonable timetable for complying with it; and (b) the factors that will be taken into account by OFCOM in determining—

(i) whether or not a failure of the provider has been remedied; and (ii) whether or not to exercise their powers under subsection (6).

(6) If OFCOM are satisfied— (a) that the provider of a public service channel or the public teletext provider has

failed to comply with a direction under this section, (b) that that provider is still failing to fulfil the public service remit for that

channel or service or adequately to contribute to the fulfilment of the purposes of public service television broadcasting in the United Kingdom, and

(c) that it would be both reasonable and proportionate to the seriousness of that failure to vary the provider’s licence in accordance with this subsection,

OFCOM may, by notice to the provider, vary that licence so as to replace self- regulation with detailed regulation.

(7) For the purposes of subsection (6) a variation replacing self-regulation with detailed regulation is a variation which—

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(a) omits the conditions imposed by virtue of sections 265 to 269; and (b) replaces those conditions with such specific conditions as OFCOM consider

appropriate for securing that the provider— (i) fulfils the public service remit for his service; and

(ii) makes an adequate contribution towards the fulfilment of the purposes of public service television broadcasting in the United Kingdom.

(8) If, at any time following a variation in accordance with subsection (6) of a provider’s licence, OFCOM consider that detailed regulation is no longer necessary, they may again vary the licence so as, with effect from such time as they may determine—

(a) to provide for the conditions required by virtue of sections 265 to 269 again to be included in the regulatory regime for the service provided by that provider; and

(b) to remove or modify some or all of the specific conditions inserted under that subsection.

(9) Before giving a direction under this section to a provider or exercising their power under this section to vary a provider’s licence, OFCOM must consult that provider.

(10) In accordance with section 265(5), the reference in subsection (1) to a failure to fulfil the public service remit for the public teletext service includes a failure to fulfil that remit as respects only one of the services comprised in that service.

Commencement Information I423 S. 270 in force at 28.12.2004 by S.I. 2004/3309, art. 3

271 Power to amend public service remits

(1) The Secretary of State may by order modify any one or more of the following— (a) the public service remit for any licensed public service channel or for the

public teletext service; (b) the purposes of public service television broadcasting in the United Kingdom

(within the meaning given by subsection (4) of section 264); (c) the matters to which OFCOM are to have regard under subsections (5) and

(6) of that section.

(2) The Secretary of State is not to make an order under this section except where— (a) OFCOM have made a recommendation for the making of such an order in

their most recent report under section 229 or 264; or (b) subsection (3) applies to the order.

(3) This subsection applies to an order if— (a) it is made by the Secretary of State less than twelve months after the date on

which he has received a report under section 229; (b) he has considered that report; and (c) he is satisfied that the making of the order is required, notwithstanding the

absence of a recommendation by OFCOM, by circumstances or other matters which are dealt with in that report or which (in his opinion) should have been.

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(4) Before including a recommendation for the making of an order under this section in a report under section 229 or 264, OFCOM must consult—

(a) members of the public in the United Kingdom; (b) such public service broadcasters as they consider are likely to be affected if

the Secretary of State gives effect to the recommendation they are proposing to make; and

(c) such of the other persons providing television and radio services as OFCOM consider appropriate.

(5) Before making an order under this section, the Secretary of State must consult the persons mentioned in subsection (6) about its terms (even if the order is the one recommended by OFCOM).

(6) Those persons are— (a) OFCOM; (b) such public service broadcasters as they consider are likely to be affected by

the order; and (c) such of the other persons providing television and radio services as he

considers appropriate.

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

(8) In this section “public service broadcaster” means any of the persons who are public service broadcasters for the purposes of section 264.

Commencement Information I424 S. 271 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F461271ARemedying failure by C4C to perform media content duties

(1) This section applies if OFCOM are satisfied— (a) that C4C have failed to comply with a direction under section 198D in respect

of a failure to perform one or more of their duties under section 198A, (b) that C4C are still failing to perform that duty or those duties, and (c) that it would be both reasonable and proportionate to the seriousness of the

failure to vary the licence under which Channel 4 is licensed (“the Channel 4 licence”) in accordance with this section.

(2) OFCOM may, by notice to C4C, vary the Channel 4 licence by adding such conditions, or making such modifications of conditions, as OFCOM consider appropriate for remedying (entirely or partly) C4C's failure to perform the duty or duties under section 198A.

(3) If, at any time following such a variation, OFCOM consider that any of the additional conditions or modifications is no longer necessary, they may again vary the licence with effect from such time as they may determine.

(4) OFCOM must consult C4C before exercising their power under this section to vary the Channel 4 licence.]

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Textual Amendments F461 S. 271A inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 23(2), 47(1)

Must-offer obligations etc. affecting public service television

PROSPECTIVE

272 Must-offer obligations in relation to networks

(1) The regulatory regime for— (a) every licensed public service channel, (b) the public teletext service, and (c) every licensed television service added by order under section 64 to the list

of must-carry services, includes the conditions that OFCOM consider appropriate for securing the three objectives set out in this section (so far as they are not secured by provision made under section 243).

(2) The first objective is that the channel or other service, so far as it is provided in digital form, is at all times offered as available (subject to the need to agree terms) to be broadcast or distributed by means of every appropriate network.

(3) The second objective is that the person providing the channel or other service does his best to secure that arrangements are entered into, and kept in force, that ensure—

(a) that the channel or other service, so far as it is provided in digital form, is broadcast or distributed on appropriate networks; and

(b) that the broadcasting and distribution of the channel or other service, in accordance with those arrangements, result in its being available for reception, by means of appropriate networks, by as many members of its intended audience as practicable.

(4) The third objective is that the arrangements entered into and kept in force for the purpose of securing the second objective prohibit the imposition, for or in connection with the provision of an appropriate network, of any charge that is attributable (whether directly or indirectly) to the conferring of an entitlement to receive the channel or other service in question in an intelligible form by means of that network.

(5) The three objectives apply only in relation to times when the channel or other service in its digital form is included in the list of must-carry services in section 64.

(6) Conditions imposed under this section in relation to a channel or other service must, to such extent as OFCOM consider appropriate—

(a) require arrangements made or kept in force for the purpose of securing the second objective to apply in the case of every service which is an ancillary service by reference to the channel or other service in question as they apply to the channel or other service itself; and

(b) provide for the channel or other service to which the conditions apply to be treated, in relation to particular appropriate networks, as constituting such

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services comprised in or provided with that channel or other service as may be determined by OFCOM.

(7) In this section— “appropriate network” means (subject to subsection (8)) an electronic

communications network by means of which public electronic communications services are provided that are used by a significant number of end-users as their principal means of receiving television programmes;

“intended audience”, in relation to a channel or other service, means— (a) if the channel or other service is one provided only for a particular area

or locality of the United Kingdom, members of the public in that area or locality;

(b) if the channel or other 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 the United Kingdom; “licensed television service” means a service falling to be licensed under

Part 1 of the 1990 Act or Part 1 of the 1996 Act.

(8) 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 the United Kingdom unless it is a network by means of which electronic communications services are provided to persons in that area or locality

(9) In subsection (7) “public electronic communications service” and “end-user” each has the same meaning as in Part 2.

(10) An order under section 411 must not appoint a day for provisions of this section to come into force that falls less than six months after the day on which the order is made.

PROSPECTIVE

273 Must-offer obligations in relation to satellite services

(1) The regulatory regime for— (a) every licensed public service channel, (b) the public teletext service, and (c) every other licensed television service specified for the purposes of this

section in an order made by the Secretary of State, includes the conditions that OFCOM consider appropriate for securing the three objectives set out in this section (so far as they are not secured by conditions imposed under section 272).

(2) The first objective is that the channel or other service, so far as it is provided in digital form, is at all times offered as available (subject to the need to agree terms) to be broadcast by means of every satellite television service that is available for reception by members of the public in the whole or a part of the United Kingdom.

(3) The second objective is that the person providing the channel or other service does his best to secure that arrangements are entered into, and kept in force, that ensure—

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(a) that the channel or other service, so far as it is provided in digital form, is broadcast by means of satellite television services that are broadcast so as to be available for reception by members of the public in the United Kingdom; and

(b) that the broadcasting, in accordance with those arrangements, of the channel or other service by means of those 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 third objective is that the arrangements entered into and kept in force for the purpose of securing the second objective prohibit the imposition, for or in connection with the provision of a satellite television service, of any charge that is attributable (whether directly or indirectly) to the conferring of an entitlement to receive the channel or other service in question in an intelligible form by means of that service.

(5) The three objectives apply only in relation to a time when the channel or service is included, in its digital form, in the list of services that are must-provide services for the purposes of section 274.

(6) Conditions imposed under this section in relation to a channel or other service must, to such extent as OFCOM consider appropriate—

(a) require arrangements made or kept in force for the purpose of securing the second objective to apply in the case of every service which is an ancillary service by reference to the channel or other service in question as they apply to the channel or other service itself; and

(b) provide for the channel or other service to which the conditions apply to be treated, in relation to particular satellite television services, as constituting such services comprised in or provided with the channel or other service as may be determined by OFCOM.

(7) In this section— “intended audience”, in relation to a channel or other service, means—

(a) if the channel or other service is one provided only for a particular area or locality of the United Kingdom, members of the public in that area or locality;

(b) if the channel or other 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 the United Kingdom; “licensed television service” means a service falling to be licensed under

Part 1 of the 1990 Act or Part 1 of the 1996 Act; 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.

(8) An order under section 411 must not appoint a day for provisions of this section to come into force that falls less than six months after the day on which the order is made.

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PROSPECTIVE

274 Securing reception of must-provide services in certain areas

(1) The regulatory regime for— (a) every licensed public service channel, (b) the public teletext service, and (c) every licensed television service added by order under section 275 to the list

of must-provide services, includes the conditions that OFCOM consider appropriate for securing that arrangements satisfying the requirements of this section are entered into and maintained by all the persons who provide must-provide services.

(2) The conditions imposed on a person under this section may include the conditions that OFCOM consider appropriate for securing, in a case where—

(a) the persons providing must-provide services fail to enter into or maintain arrangements satisfying the requirements of this section, and

(b) OFCOM make and impose arrangements of their own instead, that the person bound by the conditions is required to act in accordance with arrangements imposed by OFCOM.

(3) The arrangements that are to be entered into, or may be imposed, are arrangements that secure—

(a) that a facility for receiving each must-provide service is made available to every member of the intended audience for that service who is unable, without the use of that facility, to receive it in an intelligible form and free of charge;

(b) that the facility is one under which every such member of the intended audience for a must-provide service is entitled, free of charge, to receive in an intelligible form so much of a service broadcast from a satellite as includes that must-provide service;

(c) that the cost of making that facility available is shared, in appropriate proportions, by all the persons providing must-provide services;

(d) that procedures are established and maintained for dealing with complaints from persons claiming to be entitled, in accordance with the arrangements, to receive a service free of charge, and for resolving disputes about the existence or extent of such an entitlement;

(e) that the availability of those procedures is adequately publicised in accordance with guidance given from time to time by OFCOM.

(4) Arrangements entered into by the providers of must-provide services for the purposes of subsection (3), and any modifications of such arrangements made by the parties to them, are to have effect only if approved by OFCOM.

(5) Before imposing any arrangements for the purposes of a condition under subsection (2), OFCOM must consult all the persons who provide must-provide services.

(6) For the purposes of this section the reception of a service is not free of charge— (a) if reception of the service is made conditional on the acceptance of an

entitlement to receive another service in relation to which a charge is imposed (whether directly or indirectly);

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(b) if a charge is made for or in connection with the provision of a service which is an ancillary service in relation to the service in question;

(c) if any consideration is required from the persons to whom it is made available for the provision of assistance for disabled people in respect of programmes included in the service; or

(d) if any other consideration is required to be given, by the person entitled to receive it, for or in connection with its provision or availability.

(7) A service is not prevented from being free of charge by a requirement to pay sums in accordance with regulations under section 365.

(8) The quality of reception that is required before someone is to be treated for the purposes of any conditions imposed under this section as able to receive a service in an intelligible form is to be determined by OFCOM.

(9) References in this section to a facility for receiving a must-provide service include references to—

(a) software to be used in giving effect to the entitlement to receive a must- provide service in an intelligible form, and

(b) apparatus to be used in associating apparatus capable of being used for receiving such a service, or for putting it into an intelligible form, with a person having such an entitlement,

but do not otherwise include references to apparatus.

(10) In this section— “intended audience”, in relation to a must-provide service, means—

(a) if the service is one provided only for a particular area or locality of the United Kingdom, 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 the United Kingdom; “licensed television service” means a service falling to be licensed under

Part 1 of the 1990 Act or Part 1 of the 1996 Act; “must-provide service” means a service for the time being included in the

list of must-provide services in section 275.

(11) An order under section 411 must not appoint a day for provisions of this section to come into force that falls less than six months after the day on which the order is made.

275 Must-provide services for the purposes of s. 274

(1) For the purposes of section 274 the list of must-provide services is as follows— (a) every service of television programmes provided by the BBC so far as it is

provided in digital form and is a service in relation to which OFCOM have functions;

(b) the Channel 3 services so far as provided in digital form; (c) Channel 4 so far as provided in digital form; (d) Channel 5 so far as provided in digital form; (e) S4C Digital; (f) the digital public teletext service.

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(2) The Secretary of State may by order modify the list of must-provide services in subsection (1).

(3) In determining whether it is appropriate, by an order under subsection (2), to add a service to the list of must-provide services or to remove a service from that list, the Secretary of State must have regard, in particular, to—

(a) the public benefit to be secured by the addition of the service to the list, or by its retention in the list;

(b) the likely effect of the proposed modification as respects the costs to be borne, under arrangements entered into or imposed under section 274, by the persons who, after the coming into force of the modification, would have to be parties to those arrangements; and

(c) the extent to which that effect is proportionate to the benefit mentioned in paragraph (a).

Commencement Information I425 S. 275 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

276 Co-operation with the public teletext provider

(1) The regulatory regime for every Channel 3 service and for Channel 4 includes the conditions that OFCOM consider appropriate for securing that the provider of the service or channel grants access to the facilities mentioned in subsection (2)—

(a) to the public teletext provider; and (b) to any person authorised by virtue of section 220 to provide the whole or a

part of the public teletext service on his behalf.

(2) Those facilities are the facilities that are reasonably required by the public teletext provider or the authorised person for the purposes of, or in connection with, the provision of the public teletext service.

(3) A licence holder granting access to facilities in pursuance of a condition imposed under this section may require the public teletext provider or authorised person to pay a reasonable charge in respect of the facilities.

(4) In the event of a dispute, the amount of the charge is to be determined by OFCOM.

Modifications etc. (not altering text) C35 S. 276 excluded (8.12.2003) by The Office of Communications Act 2002 (Commencement No. 3) and

Communications Act 2003 (Commencement No. 2) Order 2003 (S.I. 2003/3142), art. 8(2) (with art. 11)

Commencement Information I426 S. 276 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Programming quotas for public service television

277 Programming quotas for independent productions

(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing 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 channel is allocated to the broadcasting of a range and diversity of independent productions.

(2) In this section— (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 section;

(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 section; 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 subsection (1) by substituting a different percentage for the percentage for the time being specified in that subsection.

(4) The Secretary of State may also by order provide for the regulatory regime for every licensed public service channel to include conditions falling within subsection (5), either instead of or as well as those falling within subsection (1).

(5) The conditions falling within this subsection are those that OFCOM consider appropriate for securing that, in each year, not less than the percentage specified in the order of the programming budget for that year for that channel is applied in the acquisition of independent productions.

(6) The power to make an order under subsection (4) includes power to provide that conditions that have previously ceased under such an order to be included in the regulatory regime for every licensed public service channel are again so included, in addition to or instead of the conditions already so included (apart from the exercise of that power) by virtue of this section.

(7) The Secretary of State is not to make an order for the regulatory regime of every licensed public service channel to include or exclude conditions falling within subsection (1) or conditions falling within subsection (5) unless—

(a) OFCOM have made a recommendation to him for those conditions to be included or excluded; and

(b) the order gives effect to that recommendation.

(8) The regulatory regime for every licensed public service channel also includes a condition requiring the provider of the channel to comply with directions given to him 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 his compliance with the requirements of conditions imposed by virtue of subsection (1) or (4); and

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(b) thereby increasing the percentage applicable for the purposes of those conditions to the subsequent year or years.

(9) For the purposes of conditions imposed by virtue of this section— (a) the amount of the programming budget for a licensed public service channel

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) The powers of the Secretary of State to make orders under this section do not include— (a) power to specify different percentages for the purposes of subsection (1), or

of a condition falling within subsection (5), for different regional Channel 3 services or for different national Channel 3 services; or

(b) power to make different provision for different licensed public service channels as to whether conditions falling within subsection (1) or conditions falling within subsection (5), or both, are included in the regulatory regimes for those services.

(11) Before making an order under this section the Secretary of State must consult OFCOM, the BBC and the Welsh Authority.

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

(13) In this section— “acquisition”, in relation to a programme, includes commissioning and the

acquisition of 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.

Commencement Information I427 S. 277 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

278 Programming quotas for original productions

(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing—

(a) that the time allocated, in each year, to the broadcasting of original productions included in that channel is no less than what appears to them to be an appropriate proportion of the total amount of time allocated to the broadcasting of all the programmes included in the channel; and

(b) that the time allocated to the broadcasting of original productions is split in what appears to them to be an appropriate manner between peak viewing times and other times.

(2) The proportion determined by OFCOM for the purposes of subsection (1)—

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(a) must, in the case of each licensed public service channel, be such proportion as OFCOM consider appropriate for ensuring that the channel is consistently of a high quality; and

(b) may, for the purposes of paragraph (b) of that subsection, be expressed as the cumulative effect of two different minimum proportions, one applying to peak viewing times and the other to other times.

(3) A condition contained in a licence by virtue of this section may provide— (a) that specified descriptions of programmes are to be excluded in determining

the programmes a proportion of which is to consist of original productions; (b) that, in determining for the purposes of the condition whether a programme is

of a description of programmes excluded by virtue of paragraph (a), regard is to be had to any guidance prepared and published, and from to time revised, by OFCOM.

(4) Before imposing a condition under this section, OFCOM must consult the person on whom it is to be imposed.

(5) The requirement to consult is satisfied, in the case of the imposition of a condition by way of a variation of a licence, by compliance with section 3(4)(b) of the 1990 Act (obligation to give opportunity to make representations about variation).

(6) References in this section, in relation to a licensed public service channel, 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 section.

(7) The power to specify descriptions of programmes by order under subsection (6) includes power to confer such discretions on OFCOM as the Secretary of State thinks fit.

(8) Before making an order under this section 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 section unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(10) In this section— “peak viewing time”, in relation to a licensed public service channel, means

a time that appears to OFCOM to be, or to be likely to be, a peak viewing time for that channel; and

“programme” does not include an advertisement.

(11) Before determining for the purposes of this section what constitutes a peak viewing time for a channel, OFCOM must consult the provider of the channel.

Commencement Information I428 S. 278 in force at 1.7.2004 by S.I. 2003/3142, art. 4(4)(a) (with art. 11) (as amended (4.3.2004) by S.I.

2004/545, art. 2(2)(3)(b))

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News provision etc. on public service television

279 News and current affairs programmes

(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing—

(a) that the programmes included in the channel include news programmes and current affairs programmes;

(b) that the news programmes and current affairs programmes included in the service are of high quality and 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 channel is provided.

(2) That regime also includes the conditions that OFCOM consider appropriate for securing 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 what appears to OFCOM to be an appropriate proportion of the time allocated to the broadcasting of all the programmes included in the channel.

(3) It further includes the conditions that OFCOM consider appropriate for securing 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 what appears to OFCOM to be an appropriate manner between peak viewing times and other times.

(4) The proportion determined by OFCOM for the purposes of subsection (2) may, for the purposes of subsection (3), be expressed as the cumulative effect of two different minimum proportions, one applying to peak viewing times and the other to other times.

(5) In this section “peak viewing time”, in relation to a licensed public service channel, means a time determined by OFCOM to be, or to be likely to be, a peak viewing time for that channel.

(6) Before determining for the purposes of this section— (a) the proportion of time to be allocated to the broadcasting of news programmes

or current affairs programmes; or (b) what constitutes a peak viewing time for a channel,

OFCOM must consult the provider of the channel or (as the case may be) the person who is proposing to provide it.

(7) The requirement to consult is satisfied, in the case of the imposition of a condition by way of a variation of a licence, by compliance with section 3(4)(b) of the 1990 Act (obligation to give opportunity to make representations about variation).

Commencement Information I429 S. 279 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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280 Appointed news providers for Channel 3

(1) The regulatory regime for every regional Channel 3 service includes the conditions that OFCOM consider appropriate for securing the nationwide broadcasting, on the regional Channel 3 services (taken together), of news programmes that are able to compete effectively with other television news programmes broadcast nationwide in the United Kingdom.

(2) The conditions imposed under this section must include a condition requiring the holder of a regional Channel 3 licence to do all that he can to ensure—

(a) that arrangements for the appointment of a single body corporate as the appointed news provider are maintained between all the holders of regional Channel 3 licences; and

(b) that, at all times while he is providing a regional Channel 3 service, there is in force an appointment made in accordance with those arrangements.

(3) The arrangements that are required to be maintained by virtue of conditions imposed under subsection (2) must provide—

(a) for the terms on which a body is appointed as the appointed news provider to include the terms appearing to OFCOM to be appropriate for securing that the body’s finances are adequate, throughout the period of its appointment, to ensure that the Channel 3 news obligations are capable of being met; and

(b) for the approval of OFCOM to be required for the purposes of paragraph (a) to the terms on which an appointment is made.

(4) The conditions imposed under this section must include the conditions that OFCOM consider appropriate for securing that arrangements maintained between—

(a) the holders of regional Channel 3 licences, and (b) the body which is the appointed news provider,

ensure that that body is subject to an obligation, enforceable by OFCOM, to provide OFCOM with all such information as they may require for the purpose of carrying out their functions.

(5) The conditions imposed under this section must include a condition requiring the news programmes included in a regional Channel 3 service—

(a) to be programmes provided by the body which is for the time being the appointed news provider for the purposes of this section; and

(b) to be so included in that service as to be broadcast simultaneously with the broadcasting of news programmes included, in accordance with conditions imposed under this subsection, in other regional Channel 3 services.

(6) Those conditions must also require the news programmes provided by the appointed news provider which, in accordance with a condition imposed under subsection (5), are included in a regional Channel 3 service to be programmes that are presented live.

(7) OFCOM— (a) may issue guidance as to the terms that will satisfy requirements imposed by

virtue of subsection (3)(a); and (b) must have regard to guidance for the time being in force under this subsection

when considering whether to give an approval for the purposes of provision made by virtue of subsection (3)(b).

(8) For the purposes of this section the Channel 3 news obligations are—

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(a) the requirements of any conditions imposed in relation to regional Channel 3 services under section 279; and

(b) the nationwide broadcasting on the regional Channel 3 services (taken together) of news programmes that are able to compete effectively with other television news programmes broadcast nationwide in the United Kingdom.

(9) Conditions imposed under this section are not to require arrangements to make provision falling within subsection (3)(a) or (b) or (4) in relation to appointments made before the commencement of this section.

(10) Section 32 of the 1990 Act (nomination of bodies eligible for appointment as news providers) shall cease to have effect.

Commencement Information I430 S. 280 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

281 Disqualification from appointment as news provider

(1) The regulatory regime for every regional Channel 3 service includes the conditions that OFCOM consider appropriate for securing—

(a) that a body is not appointed as the appointed news provider if it falls within subsection (2); and

(b) that the appointment of a body as the appointed news provider ceases to have effect if it becomes a body falling within that subsection.

(2) A body falls within this subsection if— (a) it is a disqualified person under Part 2 of Schedule 2 to the 1990 Act in relation

to a Channel 3 licence; or (b) there would be a contravention of Part 1 of Schedule 14 to this Act (whether

by that body or by another person) if that body held a licence to provide a Channel 3 service, or held a licence to provide such a service for a particular area for which such a service is provided.

[F462(3) The reference in subsection (2)(a) to a body which is a disqualified person under Part 2 of Schedule 2 to the 1990 Act in relation to a Channel 3 licence includes a reference to a person who is disqualified by virtue of a disqualification order under section 145 of the 1996 Act.]

Textual Amendments F462 S. 281(3) added (29.12.2003) by Media Ownership (Local Radio and Appointed News Provider) Order

2003 (S.I. 2003/3299), arts. 1(2), 13(1)

Commencement Information I431 S. 281 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

282 Power to repeal or modify Channel 3 news provider provisions

(1) If it appears to the Secretary of State appropriate to do so, he may by order repeal or otherwise modify any of the provisions of section 280 or 281.

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(2) Except in a case to which subsection (3) applies, the Secretary of State must consult OFCOM before making an order under this section.

(3) Consultation with OFCOM is not required if the order is confined to giving effect to recommendations by OFCOM that are contained in a report of a review under section 391.

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

Commencement Information I432 S. 282 in force at 12.12.2003 by S.I. 2003/3142, art. 2 (with art. 11)

283 News providers for Channel 5

(1) If it appears to the Secretary of State appropriate to do so, he may by order make provision requiring news programmes included in Channel 5 to be provided by a person appointed as a news provider in accordance with the order.

(2) An order under this section may make provision in relation to Channel 5 that corresponds, with such modifications as the Secretary of State thinks fit, to any provision made in relation to regional Channel 3 services by section 280 or 281.

(3) Subsection (2) applies irrespective of any repeal or other modification by an order under this Act of section 280 or 281.

(4) An order under this section may include provision for section 194A of the 1990 Act (application of Competition Act 1998 to Channel 3 news provision) to have effect (with such modifications as may be specified in the order) in relation to the appointment of a person as a news provider for Channel 5 as it has effect in relation to the appointment of a body as a news provider for Channel 3.

(5) The Secretary of State is not to make an order under this section for the imposition of obligations in relation to Channel 5 unless he is satisfied that Channel 5’s share of the audience for television broadcasting services is broadly equivalent to that of the services comprising Channel 3.

(6) An order under this section must require a licence holder to have a reasonable opportunity of making representations to OFCOM before his licence is varied in pursuance of the order.

(7) Except in a case to which subsection (8) applies, the Secretary of State must consult OFCOM before making an order under this section.

(8) Consultation with OFCOM is not required if the order is confined to giving effect to recommendations by OFCOM that are contained in a report of a review under section 391.

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

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Commencement Information I433 S. 283 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

284 News provision on the public teletext service

(1) The regulatory regime for the public teletext service includes the conditions that OFCOM consider appropriate for securing—

(a) that the service includes what appears to OFCOM to be a suitable quantity and variety of news items; and

(b) that the news items included in the service are up to date and regularly revised.

(2) Conditions imposed under this section in relation to a time when the public teletext service comprises both—

(a) an analogue teletext service, and (b) a teletext service provided in digital form,

must apply to both services but may make different provision for each of them.

Commencement Information I434 S. 284 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Independent and regional productions and programmes for public service television

285 Code relating to programme commissioning

(1) The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing that the provider of the channel draws up and from time to time revises a code of practice setting out the principles he will apply when agreeing terms for the commissioning of independent productions.

(2) That regime also includes the conditions that OFCOM consider appropriate for securing that the provider of every licensed public service channel—

(a) at all times complies with a code of practice which has been drawn up by him by virtue of this section and is for the time being in force; and

(b) exercises his power to revise his code to take account of revisions from time to time of the guidance issued by OFCOM for the purposes of this section.

(3) The conditions imposed under this section must ensure that the code for the time being in force in the case of every licensed public service channel secures, 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 what appears to OFCOM to be 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;

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(c) that there is what appears to OFCOM to be sufficient transparency about the amounts to be paid in respect of each category of rights;

(d) that what appear to OFCOM to be 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.

(4) The conditions imposed under this section must also ensure that the drawing up or revision of a code by virtue of this section 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; and (c) the publication of every code or revised code.

(5) The provision that may be included in a condition imposed under this section includes—

(a) provision requiring a draft of a code or of any revision of a code to be submitted to OFCOM for approval;

(b) provision for the code or revision to have effect only if approved by OFCOM; and

(c) provision for a code or revision that is approved by OFCOM subject to modifications to have effect with those modifications.

(6) OFCOM— (a) must issue and may from time to time revise guidance for the purposes of this

section; (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.

(7) Guidance issued by OFCOM for the purposes of this section must be general guidance and is not to specify particular terms to be included in agreements to which the guidance relates.

(8) Conditions imposed under this section requiring a code to be drawn up or approved may include transitional provision for treating a code drawn up before the imposition of the condition —

(a) as satisfying the requirements of that condition; and (b) as a code approved by OFCOM for the purposes of conditions so imposed.

(9) In this section “independent production” has the same meaning as in section 277.

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Commencement Information I435 S. 285 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

286 Regional programme-making for Channels 3 and 5

(1) The regulatory regime for every Channel 3 service includes the conditions (if any) that OFCOM consider appropriate in the case of that service for securing—

(a) that what appears to OFCOM to be a suitable proportion of Channel 3 programmes made in the United Kingdom are programmes made in the United Kingdom outside the M25 area;

(b) that the Channel 3 programmes that are made in the United Kingdom outside the M25 area (taken together) constitute what appears to OFCOM to be a suitable range of programmes;

(c) that what appears to OFCOM to be a suitable proportion of the expenditure of the providers of Channel 3 services on Channel 3 programmes made in the United Kingdom is referable to programme production at different production centres outside the M25 area; and

(d) that the different programme production centres to which that expenditure is referable constitute what appears to OFCOM to be a suitable range of such production centres.

(2) In the case of a national Channel 3 service, subsection (1) requires the inclusion of conditions in the licence for the service only where OFCOM consider, having regard to the nature of the service, that it would be appropriate for conditions falling within that subsection to be so included.

(3) The regulatory regime for Channel 5 includes the conditions that OFCOM consider appropriate for securing—

(a) that what appears to OFCOM to be a suitable proportion of the programmes made in the United Kingdom for viewing on that Channel are programmes made in the United Kingdom outside the M25 area;

(b) that the programmes for such viewing that are made in the United Kingdom outside the M25 area (taken together) constitute what appears to OFCOM to be a suitable range of programmes;

(c) that what appears to OFCOM to be a suitable proportion of the expenditure of the provider of Channel 5 on programmes made in the United Kingdom for viewing on that Channel is referable to programme production at different production centres outside the M25 area; and

(d) that the different programme production centres to which that expenditure is referable constitute what appears to OFCOM to be a suitable range of such production centres.

(4) Before imposing a condition under this section, OFCOM must consult the person on whom it is to be imposed.

(5) The requirement to consult is satisfied, in the case of the imposition of a condition by way of a variation of a licence, by compliance with section 3(4)(b) of the 1990 Act (obligation to give opportunity to make representations about variation).

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(6) A proportion is not to be regarded by OFCOM as suitable for the purposes of a provision of this section if it constitutes less than a significant proportion of the programmes or expenditure in question.

(7) In this section— “Channel 3 programmes” means programmes made for viewing on Channel

3 in more than one area for which regional Channel 3 services are provided, including any programme made for viewing on a national Channel 3 service other than a regional programme;

“expenditure”, in relation to a programme, means— (a) expenditure which constitutes an investment in or is otherwise attributable

to the making of the programme; or (b) expenditure on the commissioning or other acquisition of the programme

or on the acquisition of a right to include it in a service or to have it broadcast;

“programme” does not include an advertisement; and “regional programme” means a programme made with a view to its inclusion

in a national Channel 3 service as a programme of particular interest to persons living within a particular area of the United Kingdom.

Commencement Information I436 S. 286 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

287 Regional programmes on Channel 3

(1) The regulatory regime for every regional Channel 3 service includes the conditions that OFCOM consider appropriate for securing—

(a) that what appears to OFCOM, in the case of that service, to be a sufficient amount of time is given in the programmes included in the service to what appears to them to be a suitable range of programmes (including regional news programmes) which are of particular interest to persons living within the area for which the service is provided;

(b) that the regional programmes included in the service are of high quality; (c) that what appears to OFCOM, in the case of that service, to be a suitable

proportion of the regional programmes included in the service consists of programmes made in that area;

(d) that the regional news programmes included in the service are broadcast for viewing at intervals throughout the period for which the service is provided and, in particular, at peak viewing times;

(e) that what appears to OFCOM, in the case of that service, to be a suitable proportion of the other regional programmes that are included in the service consists of programmes broadcast for viewing—

(i) at peak viewing times; and (ii) at times immediately preceding or following those times.

(2) The regulatory regime for every local Channel 3 service includes the conditions that OFCOM consider appropriate for securing—

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(a) that what appears to OFCOM, in the case of that service, to be a sufficient amount of time is given in the programmes included in the service to what appears to them to be a suitable range of local programmes;

(b) that, in the case of each part of an area or each community for which the service is provided, the range of local programmes is a range of programmes (including news programmes) which are of particular interest to persons living within that part of that area or to that community;

(c) that the local programmes included in the service are of high quality; (d) that what appears to OFCOM, in the case of that service, to be a suitable

proportion of the local programmes included in the service consists of programmes made in the area for which the service is provided;

(e) that the local news programmes included in the service are broadcast for viewing at intervals throughout the period for which the service is provided and, in particular, at peak viewing times;

(f) that what appears to OFCOM, in the case of that service, to be a suitable proportion of the other local programmes that are included in the service consists of programmes broadcast for viewing—

(i) at peak viewing times; and (ii) at times immediately preceding or following those times.

(3) In the case of a local Channel 3 service, the conditions included in the regulatory regime for the service include conditions falling within subsection (1) to the extent only that it appears to OFCOM that the requirements of subsection (1) are not adequately met by conditions falling within subsection (2).

(4) In the case of a national Channel 3 service in the case of which OFCOM consider that it would be appropriate to impose conditions under this subsection, the regulatory regime for the service includes the conditions that OFCOM consider appropriate for securing—

(a) that what appears to OFCOM, in the case of that service, to be a sufficient amount of time is given in the programmes included in the service to what appears to them to be a suitable range of programmes (including regional news programmes) which are of particular interest to persons living within particular areas of the United Kingdom;

(b) that the regional programmes included in the service are of high quality; (c) that what appears to OFCOM, in the case of that service, to be a suitable

proportion of the regional programmes included in the service consists of programmes made in the area by reference to which they are regional programmes;

(d) that the regional news programmes included in the service are broadcast for viewing at intervals throughout the period for which the service is provided and, in particular, at peak viewing times;

(e) that what appears to OFCOM, in the case of that service, to be a suitable proportion of the other regional programmes that are included in the service consists of programmes broadcast for viewing—

(i) at peak viewing times; and (ii) at times immediately preceding or following those times.

(5) Before imposing a condition under this section, OFCOM must consult the person on whom it is to be imposed.

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(6) The requirement to consult is satisfied, in the case of the imposition of a condition by way of a variation of a licence, by compliance with section 3(4)(b) of the 1990 Act (obligation to give opportunity to make representations about variation).

(7) A proportion is not to be regarded by OFCOM as suitable for the purposes of a provision of this section if it constitutes less than a significant proportion of the programmes in question.

(8) In this section— “local Channel 3 service” means a regional Channel 3 service the provision

of which includes the provision (in pursuance of a determination under section 14(3) of the 1990 Act) of different programmes for different parts of an area or for different communities living within an area;

“local programme”, in relation to a service provided for different parts of an area or for different communities, means a programme included in that service for any of the parts of that area or for any of those communities, and “local news programme” is to be construed accordingly;

“peak viewing time”, in relation to a service, means a time determined by OFCOM to be, or to be likely to be, a peak viewing time for that service;

“programme” does not include an advertisement; “regional programme”—

(a) in relation to a regional Channel 3 service, means a programme included in that service with a view to its being of particular interest to persons living within the area for which the service is provided;

(b) in relation to a national Channel 3 service, means a programme included in that service with a view to its being of particular interest to persons living within a particular area of the United Kingdom;

and “regional news programme” is to be construed accordingly.

Commencement Information I437 S. 287 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

288 Regional programme-making for Channel 4

(1) The regulatory regime for Channel 4 includes the conditions that OFCOM consider appropriate for securing—

(a) that what appears to OFCOM to be a suitable proportion of programmes made in the United Kingdom for viewing on Channel 4 are programmes made in the United Kingdom outside the M25 area;

(b) that the programmes for such viewing that are made in the United Kingdom outside the M25 area (taken together) constitute what appears to OFCOM to be a suitable range of programmes;

(c) that what appears to OFCOM to be a suitable proportion of the expenditure of C4C on programmes made in the United Kingdom for viewing on Channel 4 is referable to programme production at different production centres outside the M25 area; and

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(d) that the different programme production centres to which that expenditure is referable constitute what appears to OFCOM to be a suitable range of such production centres.

(2) Before imposing a condition under this section, OFCOM must consult C4C.

(3) The requirement to consult is satisfied, in the case of the imposition of a condition by way of a variation of a licence, by compliance with section 3(4)(b) of the 1990 Act (obligation to give opportunity to make representations about variation).

(4) A proportion is not to be regarded by OFCOM as suitable for the purposes of a provision of this section if it constitutes less than a significant proportion of the programmes or expenditure in question.

(5) In this section— “expenditure”, in relation to a programme, means—

(a) expenditure which constitutes an investment in or is otherwise attributable to the making of the programme; or

(b) expenditure on the commissioning or other acquisition of the programme or on the acquisition of a right to include it in a service or to have it broadcast; and

“programme” does not include an advertisement.

Commencement Information I438 S. 288 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

289 Regional matters in the public teletext service

(1) The regulatory regime for the public teletext service includes the conditions that OFCOM consider appropriate for securing that the service includes what appears to them to be an appropriate proportion of material that is of particular interest to persons living in different parts of the United Kingdom.

(2) Conditions imposed under this section in relation to a time when the public teletext service comprises both—

(a) an analogue teletext service, and (b) a teletext service provided in digital form,

must apply to both services but may make different provision for each of them.

Commencement Information I439 S. 289 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F463Provision of children's programmes

Textual Amendments F463 S. 289A and cross-heading inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 90, 118(2)

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289A Provision of children's programmes

(1) OFCOM may, if they think fit, publish criteria to be applied in accordance with this section to the provision of children's programmes.

(2) Where criteria are published by OFCOM, the regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing that the provision of children's programmes meets the criteria.

(3) Any condition imposed by virtue of this section— (a) must relate only to the provision of children's programmes on the licensed

public service channel concerned; (b) must take into account OFCOM's assessment of the provision of children's

programmes on all related services.

(4) “Related services” in relation to a Channel 3 service means— (a) that service, (b) all other Channel 3 services, and (c) all services within subsection (6) that appear to OFCOM to have a sufficient

connection with any Channel 3 service.

(5) “Related services” in relation to any other licensed public service channel means— (a) that channel, and (b) all services within subsection (6) that appear to OFCOM to have a sufficient

connection with that channel.

(6) A service is within this subsection if— (a) it is available for reception in the United Kingdom, and (b) it is provided without any consideration being required for its reception,

disregarding any requirement to pay sums in accordance with regulations under section 365.

(7) For the purposes of an assessment under subsection (3)(b) no account is to be taken of whether a programme is provided on a licensed public service channel or on another service.

(8) Any condition imposed by virtue of this section must be the same for all regional Channel 3 services.

(9) Any criteria published under this section must be published by OFCOM in a statement setting out the criteria and how they propose to apply them.

(10) OFCOM may from time to time review and revise or withdraw the criteria by publishing a further statement.

(11) Where OFCOM revise or withdraw criteria, they must take any steps they consider necessary in consequence in relation to conditions imposed by virtue of this section.

(12) OFCOM must— (a) carry out a public consultation for the purposes of any review under

subsection (10); (b) where there are no published criteria for the time being, carry out a public

consultation before publishing criteria under this section.

(13) In this section “children's programme” means a programme made—

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(a) for a television programme service or for an on-demand programme service, and

(b) for viewing primarily by persons under the age of sixteen.]

Networking arrangements for Channel 3

290 Proposals for arrangements

(1) An application for a regional Channel 3 licence, in addition to being accompanied by the proposals mentioned in section 15(3)(b) of the 1990 Act, must be accompanied by the applicant’s proposals for participating in networking arrangements.

(2) OFCOM may publish general guidance to applicants for regional Channel 3 licences as to the kinds of proposals which they are likely to consider satisfactory.

(3) The publication of guidance under subsection (2) is to be in such manner as OFCOM consider appropriate.

(4) Arrangements are networking arrangements for the purposes of this Part if they— (a) apply to all the holders of regional Channel 3 licences; (b) provide for programmes made, commissioned or acquired by or on behalf of

one or more of the holders of such licences to be available for broadcasting in all regional Channel 3 services; and

(c) are made for the purpose of enabling regional Channel 3 services (taken as a whole) to be a nationwide system of services which is able to compete effectively with other television programme services provided in the United Kingdom.

Commencement Information I440 S. 290 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

291 Obligation as to making and continuance of approved arrangements

(1) The regulatory regime for every regional Channel 3 service includes the conditions that OFCOM consider appropriate for securing that the licence holder does all that he can to ensure that approved networking arrangements are in force whenever—

(a) the licence holder is providing the licensed service; and (b) no networking arrangements imposed by OFCOM under section 292 are in

force.

(2) In this section “approved networking arrangements” means networking arrangements which are for the time being approved by OFCOM in accordance with Schedule 11.

(3) In paragraph 5 of Schedule 2 to the Competition Act 1998 (c. 41) (exclusion of networking arrangements from Chapter I prohibition), for sub-paragraph (1) there shall be substituted—

“(1) The Chapter I prohibition does not apply in respect of any networking arrangements to the extent that they—

(a) have been approved for the purposes of licence conditions imposed under section 291 of the Communications Act 2003; or

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(b) are arrangements that have been considered under Schedule 4 to the Broadcasting Act 1990 and fall to be treated as so approved;

nor does that prohibition apply in respect of things done with a view to arrangements being entered into or approved to the extent that those things have effect for purposes that are directly related to, and necessary for compliance with, conditions so imposed.”

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

“(4) In this paragraph “networking arrangements” has the same meaning as in Part 3 of the Communications Act 2003.”

Commencement Information I441 S. 291 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

292 OFCOM’s power to impose arrangements

(1) This section applies on each occasion on which OFCOM— (a) are proposing to award one or more regional Channel 3 licences; and (b) for that purpose publish a notice under section 15(1) of the 1990 Act.

(2) OFCOM must— (a) determine the date by which the holders of the licences awarded and all other

regional Channel 3 providers (if any) must have entered into networking arrangements (the “networking date”); and

(b) set out that date in that notice.

(3) The networking date must be the date by which, in OFCOM’s opinion, the networking arrangements must have been entered into if approved networking arrangements are to be fully in force before the persons awarded licences begin to provide their licensed services.

(4) If— (a) no suitable networking arrangements exist by the networking date, or (b) the suitable networking arrangements that exist at that date cease to apply to

all regional Channel 3 providers on or after that date, OFCOM may impose on all regional Channel 3 providers the networking arrangements that OFCOM consider appropriate.

(5) For the purposes of subsection (4) arrangements are suitable networking arrangements if it appears to OFCOM that they—

(a) have been submitted to them for approval or have been approved by them; and (b) will be in force as approved networking arrangements when the persons

awarded licences begin to provide their licensed services.

(6) Arrangements imposed under this section come into force on the date determined by OFCOM.

(7) The regulatory regime for every regional Channel 3 service includes the conditions that OFCOM consider appropriate for securing that the licence holder complies with the provisions of any networking arrangements imposed under this section.

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(8) Where— (a) networking arrangements are imposed under this section, (b) other networking arrangements are entered into between the licence holders

bound by the imposed arrangements, and (c) the other arrangements entered into are approved by OFCOM,

the imposed arrangements shall cease to have effect on the coming into force of the other arrangements as approved networking arrangements.

(9) In this section— “approved networking arrangements” has the same meaning as in

section 291; and “regional Channel 3 providers” means persons who will be licensed to

provide regional Channel 3 services and will be providing such services when the licences to be awarded come into force.

Commencement Information I442 S. 292 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

293 Review of approved networking arrangements etc.

(1) It shall be the duty of OFCOM from time to time to carry out general reviews of the networking arrangements (whether approved or imposed by OFCOM) that are in force.

(2) The first such review must be carried out no later than six months after the date on which the offers made under section 215(1) close or (if those offers close on different dates) the latest of those dates.

(3) Every subsequent review must be carried out no more than one year after the previous one.

(4) OFCOM may also, at any other time, carry out a review of whether those arrangements continue to satisfy one of the two competition tests set out in paragraph 6 of Schedule 11.

(5) If, on a review under this section, OFCOM are satisfied that modifications are required of the networking arrangements for the time being in force, they may—

(a) require the holders of regional Channel 3 licences to give effect to the modifications proposed by OFCOM; or

(b) in the case of arrangements imposed by OFCOM, make those modifications themselves.

(6) OFCOM must not exercise any of their powers under this Act or the 1990 Act so as to modify the requirements imposed on the holder of a regional Channel 3 licence by approved networking arrangements that are already in force except—

(a) following a review under this section; or (b) with the consent of the licence holder.

(7) The regulatory regime for every Channel 3 service includes the conditions that OFCOM consider appropriate for securing that the licence holder does all that he can

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to ensure that modifications proposed by OFCOM under this section are given effect to.

(8) In this section “approved networking arrangements” has the same meaning as in section 291.

Commencement Information I443 S. 293 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

294 Supplemental provision about networking arrangements

(1) Schedule 11 (which makes provision about the approval of networking arrangements and the imposition or modification of such arrangements) shall have effect.

(2) The obligations arising under conditions imposed in accordance with sections 291 to 293 are subject to the rights of appeal conferred by that Schedule.

Commencement Information I444 S. 294 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Special obligations for Channel 4

295 Involvement of C4 Corporation in programme-making

(1) The regulatory regime for Channel 4 includes a condition requiring C4C not to be involved, except to such extent as OFCOM may allow, in the making of programmes to be broadcast on Channel 4.

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

Commencement Information I445 S. 295 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

296 Schools programmes on Channel 4

(1) The regulatory regime for Channel 4 includes the conditions that OFCOM consider appropriate for securing that what appears to them to be a suitable proportion of the programmes which are included in Channel 4 are schools programmes.

(2) A licence under the 1990 Act to provide Channel 4 may also include conditions authorised by the following provisions of this section.

(3) The conditions authorised by this section include conditions requiring C4C— (a) to finance the production of schools programmes; and (b) to acquire schools programmes provided by other persons.

(4) The conditions authorised by this section include conditions requiring C4C to ensure that schools programmes on Channel 4—

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(a) are of high quality; and (b) are suitable to meet the needs of schools throughout the United Kingdom.

(5) The conditions authorised by this section include conditions specifying the minimum number of hours in term time, or within normal school hours, that are to be allocated to the broadcasting of schools programmes on Channel 4.

(6) The conditions authorised by this section include conditions requiring C4C to provide such material for use in connection with the schools programmes broadcast by them as may be necessary to secure that effective use is made of those programmes in schools.

(7) The conditions authorised by this section include conditions requiring C4C from time to time to consult such persons who—

(a) are concerned with schools or with the production of schools programmes, or (b) have an interest in schools or in the production of schools programmes,

as OFCOM think fit.

(8) Before imposing a condition under this section, OFCOM must consult C4C.

(9) The requirement to consult is satisfied, in the case of the imposition of a condition by way of a variation of a licence, by compliance with section 3(4)(b) of the 1990 Act (obligation to give opportunity to make representations about variation).

(10) In determining for the purposes of subsection (1) what proportion of the programmes included in Channel 4 should be schools programmes, OFCOM must take into account services, facilities and materials which C4C provide to schools, or make available for schools, otherwise than by the inclusion of programmes in Channel 4.

(11) Section 34 of the 1990 Act (requirement as to schools programmes in relation to all licensed public service channels taken together) shall cease to have effect.

(12) In this section “schools programmes” means programmes which are intended for use in schools.

Commencement Information I446 S. 296 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

297 Channel 4 contribution towards national television archive

(1) Section 185 of the 1990 Act (contributions towards maintenance of the national television archive) shall be amended as follows.

(2) In subsections (1) and (3), after “Channel 3” there shall be inserted “ , Channel 4 ”.

(3) In subsection (5), at the end there shall be inserted—

““Channel 4 licence” means— (a) the licence referred to in section 231(1)(b) of the Communications

Act 2003; and (b) a licence renewing that licence on the first or any subsequent

occasion.”

(4) This section has effect in relation only to financial years beginning after the television transfer date.

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Commencement Information I447 S. 297 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Special obligation for the public teletext provider

298 Conditions prohibiting interference with other services

The regulatory regime for the public teletext service includes the conditions that OFCOM consider appropriate for securing that the provision of so much of the public teletext service as is provided in analogue form does not cause interference with—

(a) the television broadcasting service or services on whose frequency or frequencies it is provided; or

(b) any other wireless telegraphy transmissions.

Modifications etc. (not altering text) C36 S. 298 excluded (8.12.2003) by The Office of Communications Act 2002 (Commencement No. 3) and

Communications Act 2003 (Commencement No. 2) Order 2003 (S.I. 2003/3142), art. 8(1) (with art. 11)

Commencement Information I448 S. 298 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Sporting and other events of national interest

299 Categorisation of listed events

(1) For subsections (1) and (2) of section 97 of the 1996 Act (listed events), there shall be substituted—

“(1) The Secretary of State may, for the purposes of this Part, maintain a list of sporting and other events of national interest, and an event for the time being included in the list is referred to in this Part as a “listed event”.

(1A) A list maintained under subsection (1) must be divided into two categories, and those categories are referred to in this Part as “Group A” and “Group B”.

(1B) Each listed event must be allocated either to Group A or to Group B.

(2) Before drawing up such a list, or revising or ceasing to maintain it, the Secretary of State must consult—

(a) OFCOM, (b) the BBC, (c) the Welsh Authority, and (d) in relation to a relevant event, the person from whom the rights to

televise that event may be acquired.

(2A) For the purposes of subsection (2)(d), a relevant event is an event which the Secretary of State proposes—

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(a) to include in a list maintained under subsection (1), (b) to omit from such a list, or (c) to move from one category in such a list to the other.”

(2) In subsection (3)(b) of that section, the words “by the Commission” and “by them” shall be omitted.

(3) In subsection (5) of that section— (a) for the words “addition of any relevant event to” there shall be substituted “

inclusion of any event in ”; and (b) in paragraph (a), for “addition” there shall be substituted “ inclusion ”.

(4) After that subsection, there shall be inserted—

“(5A) The allocation or transfer of an event to group A does not affect the validity of a contract entered into before the day on which the Secretary of State consulted the persons mentioned in subsection (2) in relation to the proposed allocation or transfer.

(5B) The Secretary of State may direct that, for the transitional purposes set out in the direction, the transfer of a Group B event to Group A is not to affect the application to that event of provisions of this Part relating to a Group B event.”

Commencement Information I449 S. 299(2) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

PROSPECTIVE

300 Effects of categorisation of listed events

(1) In section 99(1) of the 1996 Act (avoidance of contracts for exclusive rights to televise listed events), for “listed event” there shall be substituted “ Group A listed event ”.

(2) In section 101 of that Act (restriction on televising of listed events), for subsection (1) there shall be substituted—

“(1) A television programme provider who— (a) is providing a service (“the first service”) falling within either

category, and (b) is providing it with a view to its being available (within the meaning

of Part 3 of the Communications Act 2003) for reception by members of the public in the United Kingdom, or in any area of the United Kingdom,

must not include live coverage of a listed event in that service unless it is authorised by subsection (1A), (1B) or (1C).

(1A) Live coverage of a listed event is authorised by this subsection if— (a) a television programme provider (other than the provider of the first

service) has acquired the right to include live coverage of the event in his service (“the second service”); and

(b) the second service—

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(i) falls into a different category from the first service, and (ii) is provided for an area that consists of or includes all or

almost all of the area for which the first service is provided.

(1B) Live coverage of a listed event is authorised by this subsection if OFCOM have consented in advance to inclusion of that coverage in the first service.

(1C) Live coverage of a listed event is authorised by this subsection if— (a) the listed event is a Group B event, (b) rights to provide coverage of the event have been acquired by one or

more persons in addition to the provider of the first service, (c) that additional coverage constitutes adequate alternative coverage of

the event, and (d) the person or persons who have acquired rights to provide the

additional coverage satisfy the requirements in relation to that coverage of any regulations made under section 104ZA for the purposes of this paragraph.

(1D) Subsections (1) to (1C) apply to the coverage of a part of a listed event as they apply to the coverage of the whole of that event.”

(3) In subsection (2) of that section, for “under subsection (1)” there shall be substituted “ for the purposes of subsection (1B). ”

(4) After subsection (4) of that section there shall be inserted—

“(5) References in this section to a category of service are references to a category of service set out in section 98(1).”

(5) In section 102(2) of that Act (penalties), for “under subsection (1) of section 101” there shall be substituted “ for the purposes of section 101(1B) ”.

(6) In section 103(2) of that Act (reports to the Secretary of State), for “under subsection (1) of section 101” there shall be substituted “ for the purposes of section 101(1B) ”.

Commencement Information I450 S. 300 in force at 30.6.2004 by S.I. 2003/3142, art. 4(3) (with art. 11)

301 Code relating to listed events

(1) For subsection (1) of section 104 of the 1996 Act (code in relation to listed events) there shall be substituted—

“(1) OFCOM shall draw up, and may from time to time revise, a code giving guidance—

(a) as to the matters which they will take into account in determining whether to give or to revoke their consent for the purposes of section 101(1B) or section 101B(1); and

(b) as to the matters which they will take into account in determining for the purposes of section 102(1) or 103(1), whether in all the

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circumstances it is unreasonable to expect a television programme provider to comply with section 101(1) or section 101B(1).”

(2) Where OFCOM are required to draw up a code by virtue of this section— (a) they shall do so as soon as practicable after the commencement of this section;

but (b) the code shall have no effect in relation to any time before the commencement

of section 300 of this Act.

Commencement Information I451 S. 301 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

302 Regulations about coverage of listed events

(1) After section 104 of the 1996 Act there shall be inserted—

104ZA Regulations about coverage of listed events

(1) OFCOM may make regulations for determining for the purposes of this Part— (a) the circumstances in which the televising of listed events generally,

or of a particular listed event, is or is not to be treated as live; (b) what (whether generally or in relation to particular circumstances)

is to be taken to represent the provision of adequate alternative coverage; and

(c) the requirements that must be satisfied for the purposes of section 101(1C)(d) by persons who have acquired rights to provide adequate alternative coverage.

(2) The power conferred by subsection (1)(a) does not include power to define “live” for the purposes of section 101B.

(3) Section 403 of the Communications Act 2003 (procedure for regulations and orders made by OFCOM) applies to the power of OFCOM to make regulations under this section.”

(2) In section 105(1) (interpretation of Part 4), before the definition of “Channel 4” there shall be inserted—

““adequate alternative coverage” and “live” are to be construed in accordance with any regulations under section 104ZA;”.

Commencement Information I452 S. 302 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Television services for [F464people with disabilities]

Textual Amendments F464 Words in s. 303 cross-heading substituted (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 7 (with Pt. 7)

303 Code relating to provision for [F465people with disabilities]

(1) It shall be the duty of OFCOM to draw up, and from time to time to review and revise, a code giving guidance as to—

(a) the extent to which the services to which this section applies should promote the understanding and enjoyment by [F466people with disabilities, in particular]

(i) persons who are deaf or hard of hearing, (ii) persons who are blind or partially-sighted, and

(iii) persons with a dual sensory impairment, of the programmes to be included in such services; and

(b) the means by which such understanding and enjoyment should be promoted.

[F467(1A) The code must include provision— (a) encouraging providers of services to which this section applies to develop

accessibility action plans with a view to continuously and progressively making such services more accessible to people with disabilities;

(b) requiring such action plans to be notified to OFCOM; (c) requiring providers of services to report annually to OFCOM about the

accessibility of such services to people with disabilities.]

(2) The code must include provision for securing that every provider of a service to which this section applies ensures that adequate information about the assistance for disabled people that is provided in relation to that service is made available to those who are likely to want to make use of it.

(3) The code must also require that, from the fifth and tenth anniversaries of the relevant date, the obligations in subsections (4) and (5), respectively, must be fulfilled by reference to averages computed over each of the following—

(a) the twelve month period beginning with the anniversary in question; and (b) every twelve month period ending one week after the end of the previous

period for which an average fell to be computed.

(4) The obligation to be fulfilled from the fifth anniversary of the relevant date is that at least 60 per cent. of so much of every service which—

(a) is a service to which this section applies, and (b) has a relevant date after the passing of this Act,

as consists of programmes that are not excluded programmes must be accompanied by subtitling.

(5) The obligations to be fulfilled from the tenth anniversary of the relevant date are— (a) that at least 90 per cent. of so much of a Channel 3 service or of Channel

4 as consists of programmes that are not excluded programmes must be accompanied by subtitling;

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(b) that at least 80 per cent. of so much of every other service to which this section applies as consists of programmes that are not excluded programmes must be accompanied by subtitling;

(c) that at least 10 per cent. of so much of every service to which this section applies as consists of programmes that are not excluded programmes must be accompanied by audio-description for the blind; and

(d) that at least 5 per cent. of so much of every service to which this section applies as consists of programmes that are not excluded programmes must be presented in, or translated into, sign language.

(6) A reference in subsection (4) or in any paragraph of subsection (5) to excluded programmes is a reference to programmes of the description for the time being set out under subsection (7) in relation to that subsection or paragraph and also in relation to the service in question.

(7) The code must set out, in relation to subsection (4) and each of the paragraphs of subsection (5), the descriptions of programmes that OFCOM consider should be excluded programmes for the purposes of the requirement contained in that subsection or paragraph.

(8) In complying with subsection (7), OFCOM must have regard, in particular, to— (a) the extent of the benefit which would be conferred by the provision of

assistance for disabled people in relation to the programmes; (b) the size of the intended audience for the programmes; (c) the number of persons who would be likely to benefit from the assistance and

the extent of the likely benefit in each case; (d) the extent to which members of the intended audience for the programmes are

resident in places outside the United Kingdom; (e) the technical difficulty of providing the assistance; and (f) the cost, in the context of the matters mentioned in paragraphs (a) to (e), of

providing the assistance.

(9) The exclusions that may be set out in the code under subsection (7)— (a) may include different descriptions of programmes in relation to different

services to which this section applies; and (b) in the case of a service which OFCOM are satisfied (having regard to the

matters mentioned in subsection (8)) is a special case, may include all the programmes included in the service.

(10) The requirements that may be imposed by the code include, in particular— (a) requirements on persons providing services to which this section applies to

meet interim targets falling within subsection (11), from dates falling before an anniversary mentioned in subsection (3);

(b) requirements on persons providing such services to meet further targets from dates falling after the anniversary mentioned in subsection (5); and

(c) requirements with respect to the provision of assistance for disabled people in relation to excluded programmes, or in relation to a particular description of them.

(11) The interim targets mentioned in subsection (10)(a) are the targets with respect to the provision of assistance for disabled people which OFCOM consider it appropriate

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to impose as targets on the way to meeting the targets imposed in pursuance of subsection (3).

(12) This section applies to the following services— (a) S4C Digital or any other television programme service provided by the Welsh

Authority for broadcasting in digital form so as to be available for reception by members of the public;

(b) any licensed public service channel; (c) a digital television programme service but not an electronic programme guide; (d) a television licensable content service but not an electronic programme guide; (e) a restricted television service.

(13) In this section— “electronic programme guide” means a service which—

(a) is or is included in a television licensable content service or a digital television programme service; and

(b) consists of— (i) the listing or promotion, or both the listing and the promotion,

of some or all of the programmes included in any one or more programme services the providers of which are or include persons other than the provider of the guide; and

(ii) a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide;

“programme” does not include an advertisement.

Textual Amendments F465 Words in s. 303 heading substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 8(a) (with Pt. 7) F466 Words in s. 303(1)(a) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 8(b) (with Pt. 7) F467 S. 303(1A) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 8(c) (with Pt. 7)

Commencement Information I453 S. 303 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

304 Procedure for issuing and revising code under s. 303

(1) Before drawing up a code under section 303 or reviewing or revising it in pursuance of that section, OFCOM must consult—

(a) such persons appearing to them to represent the interests of [F468people with disabilities] as OFCOM think fit; and

(b) such persons providing services to which that section applies as OFCOM think fit.

(2) OFCOM must publish the code drawn up under section 303, and every revision of it, in such manner as, having regard to the need to make the code or revision accessible to [F469people with disabilities, in particular]

(a) persons who are deaf or hard of hearing,

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(b) persons who are blind or partially sighted, and (c) persons with a dual sensory impairment,

they consider appropriate.

Textual Amendments F468 Words in s. 304(1)(a) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 9(a) (with Pt. 7) F469 Words in s. 304(2) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 9(b) (with Pt. 7)

Commencement Information I454 S. 304 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

305 Meaning of “relevant date” in s. 303

(1) In relation to a service, the relevant date for the purposes of section 303 is— (a) in a case to which any of subsections (2) to (4) applies, the date given by that

subsection; and (b) in any other case, the date (whether before or after the passing of this Act)

when the provision of that service began or begins.

(2) In the case of a service the provision of which began before the television transfer date but which is not—

(a) a service provided by the Welsh Authority, (b) a licensed public service channel, or (c) a digital television programme service,

the relevant date is the date of the coming into force of this section.

(3) In the case of— (a) a Channel 3 service the provision of which began before the date of the passing

of this Act, and (b) Channel 4 and S4C Digital,

the relevant date is 1st January 2000.

(4) In the case of Channel 5, so far as it consists of a service the provision of which began before the date of the passing of this Act, the relevant date is 1st January 1998.

(5) OFCOM may determine that a service provided by a person is to be treated for the purposes of section 303 and this section as a continuation of a service previously provided by him.

Commencement Information I455 S. 305 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

306 Power to modify targets in s. 303

(1) Where it appears to the Secretary of State, in the case of services of a particular description, that the obligation specified in section 303(4) has been or is likely to be

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fulfilled in their case before the anniversary so specified, he may by order modify section 303 so as to do one or both of the following—

(a) increase the percentage so specified in relation to services of that description; (b) substitute a different anniversary for the anniversary by which that obligation

must be fulfilled in the case of such services.

(2) The Secretary of State may by order modify section 303 so as to do one or both of the following—

(a) substitute a later anniversary for the anniversary by which the obligations specified in subsection (5) of that section must be fulfilled;

(b) substitute a higher percentage for the percentage for the time being specified in any paragraph of that subsection.

(3) The provision that may be made by an order under this section includes— (a) modifications for requiring the code to set out additional obligations to be

fulfilled once the obligations previously required to be set out in the code have been fulfilled; and

(b) savings for the obligations previously set out in the code.

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

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

Commencement Information I456 S. 306 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

307 Observance of code under s. 303

(1) The regulatory regime for every service to which this section applies includes the conditions that OFCOM consider appropriate for securing that the code maintained by them under section 303 is observed in the provision of those services.

(2) This section applies to every service to which section 303 applies which is licensed by a Broadcasting Act licence.

Commencement Information I457 S. 307 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F470307ADisabled people: point of contact

OFCOM must provide a single, easily accessible (including by people with disabilities), online point of contact for providing information and receiving complaints regarding accessibility issues which relate to matters dealt with by sections 303 to 307 and the code drawn up by OFCOM under section 303.]

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Textual Amendments F470 S. 307A inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062),

regs. 1(2), 10 (with Pt. 7)

308 Assistance for the visually impaired with the public teletext service

The regulatory regime for the public teletext service includes the conditions that OFCOM consider appropriate for securing, so far as it is reasonable and practicable, by the inclusion of features in that service, to do so, that persons with disabilities affecting their sight are able to make use of the service.

Modifications etc. (not altering text) C37 S. 308 excluded (8.12.2003) by The Office of Communications Act 2002 (Commencement No. 3) and

Communications Act 2003 (Commencement No. 2) Order 2003 (S.I. 2003/3142), art. 8(2) (with art. 11)

Commencement Information I458 S. 308 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Programming quotas for digital television programme services

309 Quotas for independent programmes

(1) The regulatory regime for every digital television programme service that is not comprised in a licensed public service channel includes the conditions that OFCOM consider appropriate for securing that, in each year, not less than 10 per cent. of the total amount of time allocated to the broadcasting of qualifying programmes included in the service is allocated to the broadcasting of a range and diversity of independent productions.

(2) In subsection (1)— (a) the 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 that subsection;

(b) the 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 that subsection; and

(c) the 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 subsection (1) by substituting a different percentage for the percentage for the time being specified in that subsection.

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

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

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

Commencement Information I459 S. 309 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Regulation of electronic programme guides

310 Code of practice for electronic programme guides

(1) It shall be the duty of OFCOM to draw up, and from time to time to review and revise, a code giving guidance as to the practices to be followed in the provision of electronic programme guides.

(2) The practices required by the code must include the giving, in the manner provided for in the code, of such degree of prominence as OFCOM consider appropriate to—

(a) the listing or promotion, or both the listing and promotion, for members of its intended audience, of the programmes included in each public service channel; and

(b) the facilities, in the case of each such channel, for members of its intended audience to select or access the programmes included in it.

(3) The practices required by the code must also include the incorporation of such features in electronic programme guides as OFCOM consider appropriate for securing that persons with disabilities [F471, in particular those] affecting their sight or hearing or both —

(a) are able, so far as practicable, to make use of such guides for all the same purposes as persons withoutF472... disabilities; and

(b) are informed about, and are able to make use of, whatever assistance for disabled people is provided in relation to the programmes listed or promoted.

(4) Subject to subsection (5), in subsection (2) the reference to the public service channels is a reference to any of the following—

(a) any service of television programmes provided by the BBC in digital form so as to be available for reception by members of the public;

(b) any Channel 3 service in digital form; (c) Channel 4 in digital form; (d) Channel 5 in digital form; (e) S4C Digital; (f) the digital public teletext service.

[F473(g) a local digital television programme service; (h) a simulcast local service.]

(5) The Secretary of State may by order— (a) add any programme service to the services for the time being specified in

subsection (4) as public service channels; or (b) delete a service from that subsection.

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(6) Before making an order under subsection (5) the Secretary of State must consult OFCOM.

(7) In this section “intended audience”, in relation to a service of any description, means— (a) if the service is provided only for a particular area or locality of the United

Kingdom, members of the public in that area or locality; (b) if it is provided for members of a particular community, members of that

community; and (c) in any other case, members of the public in the United Kingdom.

(8) In this section “electronic programme guide” means a service which consists of— (a) the listing or promotion, or both the listing and the promotion, of some or

all of the programmes included in any one or more programme services the providers of which are or include persons other than the provider of the guide; and

(b) a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide.

[F474(9) In this section “local digital television programme service” means any service which falls within a description of service in relation to which provision is for the time being made under section 244 (local digital television services).

(10) In this section “simulcast local service” means a service provided in digital form and corresponding to a local digital television programme service.

(11) For the purposes of subsection (10), a service corresponds to a local digital television programme service (“the relevant service”) if all of the programmes included in the relevant service are provided at the same time on both services.]

Textual Amendments F471 Words in s. 310(3) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 11(a) (with Pt. 7) F472 Word in s. 310(3)(a) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 11(b) (with Pt. 7) F473 S. 310(4)(g)(h) inserted (31.1.2012) by The Code of Practice for Electronic Programme Guides

(Addition of Programme Services) Order 2011 (S.I. 2011/3003), arts. 1, 2(a) F474 S. 310(9)-(11) inserted (31.1.2012) by The Code of Practice for Electronic Programme Guides

(Addition of Programme Services) Order 2011 (S.I. 2011/3003), arts. 1, 2(b)

Commencement Information I460 S. 310 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

311 Conditions to comply with code under s. 310

(1) The regulatory regime for every service consisting in or including an electronic programme guide includes whatever conditions (if any) OFCOM consider appropriate for securing that the code maintained by them under section 310 is observed in the provision of those services.

(2) In this section “electronic programme guide” has the same meaning as in section 310.

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Commencement Information I461 S. 311 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F475311AReport on electronic programme guides and public service channels

(1) It is the duty of OFCOM from time to time to prepare and publish a report dealing with—

(a) the provision by electronic programme guides of information about programmes—

(i) included in public service channels, or (ii) provided by means of on-demand programme services by persons

who also provide public service channels, and (b) the facilities provided by such guides for the selection of, and access to, such

programmes.

(2) When preparing the report OFCOM must consult such persons as appear to them appropriate.

(3) In this section “electronic programme guide” and “public service channel” have the same meanings as in section 310.]

Textual Amendments F475 S. 311A inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 95(1), 118(6); S.I. 2017/765,

reg. 2(z)

Character and coverage of radio services

312 Character and coverage of sound broadcasting services

(1) Section 106 of the 1990 Act (requirements as to character and coverage of local and national radio services) shall be amended as follows.

(2) In subsection (1), the words from “except” onwards shall be omitted.

(3) After subsection (1) (duty to ensure character preserved subject to departures that do not restrict service) there shall be inserted—

“(1A) Conditions included in a licence for the purposes of subsection (1) may provide that OFCOM may consent to a departure from the character of the licensed service if, and only if, they are satisfied—

(a) that the departure would not substantially alter the character of the service;

(b) that the departure would not narrow the range of programmes available by way of relevant independent radio services to persons living in the area or locality for which the service is licensed to be provided;

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(c) that, in the case of a local licence, the departure would be conducive to the maintenance or promotion of fair and effective competition in that area or locality; or

(d) that, in the case of a local licence, there is evidence that, amongst persons living in that area or locality, there is a significant demand for, or significant support for, the change that would result from the departure.

(1B) The matters to which OFCOM must have regard in determining for the purposes of this section the character of a service provided under a local licence include, in particular, the selection of spoken material and music in programmes included in the service.”

(4) For subsection (5) (restriction on power to extend licence to new area or locality) there shall be substituted—

“(5) OFCOM shall only exercise the power conferred on them by subsection (4) if it appears to them—

(a) that to do so would not result in a significant increase of the area or locality for which the service in question is licensed to be provided; or

(b) that the increase that would result is justifiable in the exceptional circumstances of the case.”

(5) After subsection (6) of that section there shall be inserted—

“(7) 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 services;

but, in relation to a departure from the character of a service provided under a local licence, does not include a service that is provided otherwise than wholly or mainly for reception by persons living and working in the area or locality in question.”

Commencement Information I462 S. 312 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

313 Consultation about change of character of local services

After section 106 of the 1990 Act there shall be inserted—

106ZA Consultation about change of character of local services

(1) Before deciding for the purposes of a condition imposed under subsection (1A) of section 106 whether to consent to a departure from the character of a service provided under a local licence on any of the grounds mentioned in paragraphs (b) to (d) of that subsection, OFCOM must publish a notice specifying—

(a) the proposed departure; and

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(b) the period in which representations may be made to OFCOM about the proposal.

(2) That period must end not less than 28 days after the date of publication of the notice.

(3) The notice must be published in such manner as appears to OFCOM to be appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the departure.

(4) OFCOM— (a) are not required to publish a notice under this section, and (b) may specify a period of less than 28 days in such a notice as the period

for representations, if they consider that the publication of the notice, or allowing a longer period for representations, would result in a delay that would be likely prejudicially to affect the interests of the licence holder.

(5) OFCOM are not required under this section— (a) to publish any matter that is confidential in accordance with

subsection (6) or (7); or (b) to publish anything that it would not be reasonably practicable to

publish without disclosing such a matter.

(6) A matter is confidential under this subsection if— (a) it relates specifically to the affairs of a particular body; and (b) its publication would or might, in OFCOM’s opinion, seriously and

prejudicially affect the interests of that body.

(7) A matter is confidential under this subsection if— (a) it relates specifically to the private affairs of an individual; and (b) its publication would or might, in OFCOM’s opinion, seriously and

prejudicially affect the interests of that individual.”

Commencement Information I463 S. 313 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

314 Local content and character of local sound broadcasting services

(1) It shall be the duty of OFCOM to carry out their functions in relation to local sound broadcasting services in the manner that they consider is best calculated to secure—

(a) that programmes consisting of or including local material are included in such services F476...; and

(b) that, where such programmes are included in such a service, what appears to OFCOM to be a suitable proportion of them consists of locally-made programmes.

[F477(1A) Paragraphs (a) and (b) of subsection (1) apply in the case of each local sound broadcasting service only if and to the extent (if any) that OFCOM consider it appropriate in that case.]

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(2) OFCOM must— (a) draw up guidance as to how they consider the requirements of subsection (1)

(a) and (b) should be satisfied; and (b) have regard to that guidance in carrying out their functions in relation to local

sound broadcasting services.

(3) The guidance may be different for different descriptions of services.

(4) OFCOM may revise the guidance from time to time.

(5) Before drawing up or revising the guidance, OFCOM must consult— (a) such persons as appear to them to represent the interests of persons for whom

local sound broadcasting services are or would be provided; (b) persons holding licences to provide local sound broadcasting services or

persons appearing to represent such persons, or both; and (c) such other persons as they consider appropriate.

(6) OFCOM must publish the guidance and every revision of it in such manner as they consider appropriate.

(7) In this section— [F478“approved area”, in relation to programmes included in a local sound

broadcasting service, means an area approved by OFCOM for the purposes of this section that includes the area or locality for which the service is provided;]

“ local material”, in relation to a local sound broadcasting service, means material which is of particular interest—

(a) to persons living or working within the area or locality for which the service is provided;

(b) to persons living or working within a part of that area or locality; or (c) to particular communities living or working within that area or locality

or a part of it; “locally-made”, in relation to programmes included in a local sound

broadcasting service, means made wholly or partly at premises in the area or locality for which that service is provided [F479or, if there is an approved area for the programmes, that area] ;

“material” includes news, information and other spoken material and music; and

“programme” does not include an advertisement.

(8) References in this section to persons living or working within an area or locality include references to persons undergoing education or training in that area or locality.

[F480(9) Before approving an area for the purposes of this section, OFCOM must publish a document specifying—

(a) the area that they propose to approve, and (b) a period in which representations may be made to OFCOM about the

proposals.

(10) OFCOM may withdraw their approval of all or part of an area at any time if the holder of the licence to provide the local sound broadcasting service concerned consents.

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(11) Where OFCOM approve an area or withdraw their approval of an area, they must publish, in such manner as they consider appropriate, a notice giving details of the area.]

Textual Amendments F476 Words in s. 314(1)(a) repealed (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 34(3), 47(1), Sch.

2 F477 S. 314(1A) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 34(4), 47(1) F478 Words in s. 314(7) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 34(5)(a), 47(1) F479 Words in s. 314(7) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 34(5)(b), 47(1) F480 S. 314(9)-(11) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 34(6), 47(1) (with s. 34(7))

Commencement Information I464 S. 314 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

315 Variations of radio multiplex licences affecting service characteristics

For subsection (6) of section 54 of the 1996 Act (variations of radio multiplex licence affecting service characteristics) there shall be substituted—

“(6) Where the licence holder applies to OFCOM for the variation of a condition which—

(a) was imposed under subsection (1)(b), and (b) relates to the characteristics of digital sound programme services to be

broadcast under the licence, then (subject to subsections (6A) and (6B)) OFCOM must vary the condition in accordance with the application.

(6A) OFCOM are not to vary a national radio multiplex licence in accordance with an application under subsection (6) if it appears to them that, if the application were granted, the capacity of the digital sound programme services broadcast under the licence to appeal to a variety of tastes and interests would be unacceptably diminished.

(6B) OFCOM are to vary a local radio multiplex licence in accordance with such an application only if they are satisfied—

(a) that the variation would not unacceptably narrow the range of programmes available by way of local digital sound programme services to persons living in the area or locality for which the licensed multiplex service is provided;

(b) that the variation would be conducive to the maintenance or promotion of fair and effective competition in that area or locality; or

(c) that there is evidence that, amongst persons living in that area or locality, there is a significant demand for, or significant support for, the change that would result from the variation.”

Commencement Information I465 S. 315 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Competition between licensed providers etc.

316 Conditions relating to competition matters

(1) The regulatory regime for every licensed service includes the conditions (if any) that OFCOM consider appropriate for ensuring fair and effective competition in the provision of licensed services or of connected services.

(2) Those conditions must include the conditions (if any) that OFCOM consider appropriate for securing that the provider of the service does not—

(a) enter into or maintain any arrangements, or (b) engage in any practice,

which OFCOM consider, or would consider, to be prejudicial to fair and effective competition in the provision of licensed services or of connected services.

(3) A condition imposed under this section may require a licence holder to comply with one or both of the following—

(a) a code for the time being approved by OFCOM for the purposes of the conditions; and

(b) directions given to him by OFCOM for those purposes.

(4) In this section— “connected services”, in relation to licensed services, means the provision of

programmes for inclusion in licensed services and any other services provided for purposes connected with, or with the provision of, licensed services; and

“licensed service” means a service licensed by a Broadcasting Act licence.

Commencement Information I466 S. 316 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

317 Exercise of Broadcasting Act powers for a competition purpose

(1) This section applies to the following powers of OFCOM (their “Broadcasting Act powers”)—

(a) their powers under this Part of this Act and under the 1990 Act and the 1996 Act to impose or vary the conditions of a Broadcasting Act licence;

(b) every power of theirs to give an approval for the purposes of provision contained in the conditions of such a licence;

(c) every power of theirs to give a direction to a person who is required to comply with it by the conditions of such a licence; and

(d) every power of theirs that is exercisable for the purpose of enforcing an obligation imposed by the conditions of such a licence.

(2) Before exercising any of their Broadcasting Act powers for a competition purpose, OFCOM must consider whether a more appropriate way of proceeding in relation to some or all of the matters in question would be under the Competition Act 1998 (c. 41).

(3) If OFCOM decide that a more appropriate way of proceeding in relation to a matter would be under the Competition Act 1998, they are not, to the extent of that decision, to exercise their Broadcasting Act powers in relation to that matter.

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(4) If OFCOM have decided to exercise any of their Broadcasting Act powers for a competition purpose, they must, on or before doing so, give a notification of their decision.

(5) A notification under subsection (4) must— (a) be given to such persons, or published in such manner, as appears to OFCOM

to be appropriate for bringing it to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by their decision; and

(b) must describe the rights conferred by subsection (6) on the persons affected by that decision.

(6) A person affected by a decision by OFCOM to exercise any of their Broadcasting Act powers for a competition purpose may appeal to the Competition Appeal Tribunal against so much of that decision as relates to the exercise of that power for that purpose.

[F481(7) Sections 192(3) to (5), (7) and (8), 194A and 196 apply in the case of an appeal under subsection (6) as they apply in the case of an appeal under section 192(2).]

(8) The jurisdiction of the Competition Appeal Tribunal on an appeal under subsection (6) excludes—

(a) whether OFCOM have complied with subsection (2); and (b) whether any of OFCOM’s Broadcasting Act powers have been exercised in

contravention of subsection (3); and, accordingly, those decisions by OFCOM on those matters fall to be questioned only in proceedings for judicial review.

(9) For the purposes of this section a power is exercised by OFCOM for a competition purpose if the only or main reason for exercising it is to secure that the holder of a Broadcasting Act licence does not—

(a) enter into or maintain arrangements, or (b) engage in a practice,

which OFCOM consider, or would consider, to be prejudicial to fair and effective competition in the provision of licensed services or of connected services.

(10) Nothing in this section applies to— (a) the exercise by OFCOM of any of their powers under sections 290 to 294 or

Schedule 11; (b) the exercise by them of any power for the purposes of any provision of a

condition included in a licence in accordance with any of those sections; (c) the exercise by them of any power for the purpose of enforcing such a

condition.

(11) In subsection (9) “connected services” and “licensed service” each has the same meaning as in section 316.

(12) References in this section to the exercise of a power include references to an exercise of a power in pursuance of a duty imposed on OFCOM by or under an enactment.

Textual Amendments F481 S. 317(7) substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 87(11), 118(6) (with s.

87(12)); S.I. 2017/765, reg. 2(w)

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Commencement Information I467 S. 317 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

318 Review of powers exercised for competition purposes

(1) It shall be the duty of OFCOM, at such intervals as they consider appropriate, to carry out a review of so much of each of the following as has effect for a competition purpose—

(a) every code made or approved by them under or for the purposes of a broadcasting provision;

(b) the guidance issued by them under or for the purposes of broadcasting provisions; and

(c) every direction given by them under or for the purposes of a broadcasting provision.

(2) Before modifying or revoking, or withdrawing their approval from, anything which is subject to periodic review under this section, OFCOM must consult such persons as they consider appropriate.

(3) Subsection (2) applies irrespective or whether the modification, revocation or withdrawal is in consequence of a review under this section.

(4) For the purposes of this section a provision has effect for a competition purpose to the extent that its only or main purpose is to secure that the holder of a Broadcasting Act licence does not—

(a) enter into or maintain arrangements, or (b) engage in a practice,

which OFCOM consider, or would consider, to be prejudicial to fair and effective competition in the provision of licensed services or of connected services.

(5) In this section “broadcasting provision” means— (a) a provision of this Part of this Act, of the 1990 Act or of the 1996 Act, or (b) any provision of a Broadcasting Act licence,

other than provision contained in any of sections 290 to 294 of this Act or Schedule 11 to this Act.

Commencement Information I468 S. 318 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Programme and fairness standards for television and radio

319 OFCOM’s standards code

(1) It shall be the duty of OFCOM to set, and from time to time to review and revise, such standards for the content of programmes to be included in television and radio services as appear to them best calculated to secure the standards objectives.

(2) The standards objectives are— (a) that persons under the age of eighteen are protected;

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(b) that material likely to encourage or to incite the commission of crime or to lead to disorder is not included in television and radio services;

(c) that news included in television and radio services is presented with due impartiality and that the impartiality requirements of section 320 are complied with;

(d) that news included in television and radio services is reported with due accuracy;

(e) that the proper degree of responsibility is exercised with respect to the content of programmes which are religious programmes;

(f) that generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of offensive and harmful material;

[F482(fa) that the product placement requirements referred to in section 321(3A) are met in relation to programmes included in a television programme service (other than advertisements);]

(g) that advertising that contravenes the prohibition on political advertising set out in section 321(2) is not included in television or radio services;

(h) that the inclusion of advertising which may be misleading, harmful or offensive in television and radio services is prevented;

(i) that the international obligations of the United Kingdom with respect to advertising included in television and radio services are complied with;

(j) that the unsuitable sponsorship of programmes included in television and radio services is prevented;

(k) that there is no undue discrimination between advertisers who seek to have advertisements included in television and radio services; and

(l) that there is no use of techniques which exploit the possibility of conveying a message to viewers or listeners, or of otherwise influencing their minds, without their being aware, or fully aware, of what has occurred.

(3) The standards set by OFCOM under this section must be contained in one or more codes.

(4) In setting or revising any standards under this section, OFCOM must have regard, in particular and to such extent as appears to them to be relevant to the securing of the standards objectives, to each of the following matters—

(a) the degree of harm or offence likely to be caused by the inclusion of any particular sort of material in programmes generally, or in programmes of a particular description;

(b) the likely size and composition of the potential audience for programmes included in television and radio services generally, or in television and radio services of a particular description;

(c) the likely expectation of the audience as to the nature of a programme’s content and the extent to which the nature of a programme’s content can be brought to the attention of potential members of the audience;

(d) the likelihood of persons who are unaware of the nature of a programme’s content being unintentionally exposed, by their own actions, to that content;

(e) the desirability of securing that the content of services identifies when there is a change affecting the nature of a service that is being watched or listened to and, in particular, a change that is relevant to the application of the standards set under this section; and

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(f) the desirability of maintaining the independence of editorial control over programme content.

(5) OFCOM must ensure that the standards from time to time in force under this section include—

(a) minimum standards applicable to all programmes included in television and radio services; and

(b) such other standards applicable to particular descriptions of programmes, or of television and radio services, as appear to them appropriate for securing the standards objectives.

(6) Standards set to secure the standards objective specified in subsection (2)(e) shall, in particular, contain provision designed to secure that religious programmes do not involve—

(a) any improper exploitation of any susceptibilities of the audience for such a programme; or

(b) any abusive treatment of the religious views and beliefs of those belonging to a particular religion or religious denomination.

(7) In setting standards under this section, OFCOM must 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 section.

(8) In this section “news” means news in whatever form it is included in a service.

[F483(9) [F484Subject to [F485subsections (10) to (12)],] Subsection (2)(fa) applies only in relation to programmes the production of which begins after 19th December 2009.]

[F486(10) So far as relating to product placement falling within paragraph 4(ba) of Schedule 11A (electronic cigarettes and electronic cigarette refill containers), subsection (2)(fa) applies only in relation to programmes the production of which begins after 19th May 2016.]

[F487(11) So far as relating to product placement falling within paragraph 4(bb) of Schedule 11A (undertakings whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers), subsection (2)(fa) applies only in relation to programmes the production of which begins after 31 October 2020.

(12) Subsection (2)(fa) applies in relation to a programme the production of which began before 1 November 2020 as if, in Schedule 11A (which contains the product placement requirements referred to in section 321(3A))—

(a) paragraph 3(1)(b) to (d) were omitted, (b) in paragraph 6(1) there were inserted, as paragraph (a): “the programme is a

religious, consumer affairs or current affairs programme;”, and (c) paragraph 7 included a condition that the programme in which the product,

service or trademark, or the reference to it, is included is— (i) a film made for cinema,

(ii) a film or series made for a television programme service or for an on- demand programme service,

(iii) a sports programme, or (iv) a light entertainment programme.]

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Textual Amendments F482 S. 319(2)(fa) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 2(2) F483 S. 319(9) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations

2010 (S.I. 2010/831), regs. 1(1), 2(3) F484 Words in s. 319(9) inserted (20.5.2016) by The Tobacco and Related Products Regulations 2016 (S.I.

2016/507), regs. 1(2), 45(1)(a) (with reg. 57) F485 Words in s. 319(9) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 12(a) (with Pt. 7) F486 S. 319(10) inserted (20.5.2016) by The Tobacco and Related Products Regulations 2016 (S.I.

2016/507), regs. 1(2), 45(1)(b) (with reg. 57) F487 S. 319(11)(12) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 12(b) (with Pt. 7)

Modifications etc. (not altering text) C38 S. 319(1) modified (20.7.2004) by Contracting Out (Functions relating to Broadcast Advertising) and

Specification of Relevant Functions Order 2004 (S.I. 2004/1975), art. 1, Sch. para. 1(a) (with art. 5)

Commencement Information I469 S. 319 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

320 Special impartiality requirements

(1) The requirements of this section are— (a) the exclusion, in the case of television and radio services (other than a

restricted service within the meaning of section 245), from programmes included in any of those services of all expressions of the views or opinions of the person providing the service on any of the matters mentioned in subsection (2);

(b) the preservation, in the case of every television programme service, teletext service, national radio service and national digital sound programme service, of due impartiality, on the part of the person providing the service, as respects all of those matters;

(c) the prevention, in the case of every local radio service, local digital sound programme service or radio licensable content service, of the giving of undue prominence in the programmes included in the service to the views and opinions of particular persons or bodies on any of those matters.

(2) Those matters are— (a) matters of political or industrial controversy; and (b) matters relating to current public policy.

(3) Subsection (1)(a) does not require— (a) the exclusion from television programmes of views or opinions relating to the

provision of programme services; or (b) the exclusion from radio programmes of views or opinions relating to the

provision of programme services.

(4) For the purposes of this section—

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(a) the requirement specified in subsection (1)(b) is one that (subject to any rules under subsection (5)) may be satisfied by being satisfied in relation to a series of programmes taken as a whole;

(b) the requirement specified in subsection (1)(c) is one that needs to be satisfied only in relation to all the programmes included in the service in question, taken as a whole.

(5) OFCOM’s standards code shall contain provision setting out the rules to be observed in connection with the following matters—

(a) the application of the requirement specified in subsection (1)(b); (b) the determination of what, in relation to that requirement, constitutes a series

of programmes for the purposes of subsection (4)(a); (c) the application of the requirement in subsection (1)(c).

(6) Any provision made for the purposes of subsection (5)(a) must, in particular, take account of the need to ensure the preservation of impartiality in relation to the following matters (taking each matter separately)—

(a) matters of major political or industrial controversy, and (b) major matters relating to current public policy,

as well as of the need to ensure that the requirement specified in subsection (1)(b) is satisfied generally in relation to a series of programmes taken as a whole.

(7) In this section “national radio service” and “local radio service” mean, respectively, a sound broadcasting service which is a national service within the meaning of section 245 and a sound broadcasting service which is a local service within the meaning of that section.

Commencement Information I470 S. 320 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

321 [F488Objectives for advertisements, sponsorship and product placement]

(1) Standards set by OFCOM to secure the objectives mentioned in section 319(2)(a) and [F489(fa)] to (j)—

(a) must include general provision governing standards and practice in advertising and in the sponsoring of programmes [F490and, in relation to television programme services, general provision governing standards and practice in product placement] ; F491...

(b) may include provision prohibiting advertisements and forms and methods of advertising or sponsorship (whether generally or in particular circumstances)[F492; and

(c) in relation to television programme services, may include provision prohibiting forms and methods of product placement (including product placement of products, services or trade marks of any description) (whether generally or in particular circumstances).]

(2) For the purposes of section 319(2)(g) an advertisement contravenes the prohibition on political advertising if it is—

(a) an advertisement which is inserted by or on behalf of a body whose objects are wholly or mainly of a political nature;

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(b) an advertisement which is directed towards a political end; or (c) an advertisement which has a connection with an industrial dispute.

(3) For the purposes of this section objects of a political nature and political ends include each of the following—

(a) influencing the outcome of elections or referendums, whether in the United Kingdom or elsewhere;

(b) bringing about changes of the law in the whole or a part of the United Kingdom or elsewhere, or otherwise influencing the legislative process in any country or territory;

(c) influencing the policies or decisions of local, regional or national governments, whether in the United Kingdom or elsewhere;

(d) influencing the policies or decisions of persons on whom public functions are conferred by or under the law of the United Kingdom or of a country or territory outside the United Kingdom;

(e) influencing the policies or decisions of persons on whom functions are conferred by or under international agreements;

(f) influencing public opinion on a matter which, in the United Kingdom, is a matter of public controversy;

(g) promoting the interests of a party or other group of persons organised, in the United Kingdom or elsewhere, for political ends.

[F493(3A) For the purposes of section 319(2)(fa) the product placement requirements are the requirements set out in Schedule 11A.]

(4) OFCOM— (a) [F494shall—

(i)] in relation to programme services, have a general responsibility with respect to advertisements and methods of advertising and sponsorship; and

[F495(ii) in relation to television programme services, have a general responsibility with respect to methods of product placement; and]

(b) in the discharge of that responsibility may include conditions in any licence which is granted by them for any such service that enable OFCOM to impose requirements with respect to any of those matters that go beyond the provisions of OFCOM’s standards code.

(5) OFCOM must, from time to time, consult the Secretary of State about— (a) the descriptions of advertisements that should not be included in programme

services; F496... (b) the forms and methods of advertising and sponsorship that should not be

employed in, or in connection with, the provision of such services[F497; and (c) the forms and methods of product placement that should not be employed in

the provision of a television programme service (including the descriptions of products, services or trade marks for which product placement should not be employed).]

(6) The Secretary of State may give OFCOM directions as to the matters mentioned in subsection (5); and it shall be the duty of OFCOM to comply with any such direction.

(7) Provision included by virtue of this section in standards set under section 319 is not to apply to, or to be construed as prohibiting the inclusion in a programme service of—

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(a) an advertisement of a public service nature inserted by, or on behalf of, a government department; or

(b) a party political or referendum campaign broadcast the inclusion of which is required by a condition imposed under section 333 or by paragraph 18 of Schedule 12 to this Act.

(8) In this section “programme service” does not include a service provided by the BBC [F498(except in the expression “television programme service”)] .

Textual Amendments F488 S. 321 heading substituted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(2) F489 Word in s. 321(1) substituted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(3)(a) F490 Words in s. 321(1)(a) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(3)(b) F491 Word in s. 321(1)(a) omitted (16.4.2010) by virtue of The Audiovisual Media Services (Product

Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(3)(c) F492 S. 321(1)(c) and word inserted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(3)(d) F493 S. 321(3A) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations

2010 (S.I. 2010/831), regs. 1(1), 3(4) F494 Words in s. 321(4)(a) substituted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(5)(a) F495 S. 321(4)(a)(ii) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(5)(b) F496 Word in s. 321(5)(a) omitted (16.4.2010) by virtue of The Audiovisual Media Services (Product

Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(6)(a) F497 S. 321(5)(c) and word inserted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(6)(b) F498 Words in s. 321(8) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 3(7)

Commencement Information I471 S. 321 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

322 Supplementary powers relating to advertising

(1) The regulatory regime for each of the following— (a) every television programme service licensed by a Broadcasting Act licence, (b) the public teletext service, and (c) every other teletext service so licensed that consists in an additional television

service or a digital additional television service, includes a condition requiring the person providing the service to comply with every direction given to him by OFCOM with respect to any of the matters mentioned in subsection (2).

(2) Those matters are— (a) the maximum amount of time to be given to advertisements in any hour or

other period;

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(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 a licensed service.

(3) Directions under this section— (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 section, OFCOM must 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 section.

Commencement Information I472 S. 322 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

323 Modification of matters to be taken into account under s. 319

(1) The Secretary of State may by order modify the list of matters in section 319(4) to which OFCOM are to have regard when setting or revising standards.

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

(3) No order is to be made containing provision authorised by subsection (1) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Commencement Information I473 S. 323 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

324 Setting and publication of standards

(1) Before setting standards under section 319, OFCOM must publish, in such manner as they think fit, a draft of the proposed code containing those standards.

(2) After publishing the draft code and before setting the standards, OFCOM must consult every person who holds a relevant licence and such of the following as they think fit—

(a) persons appearing to OFCOM to represent the interests of those who watch television programmes;

(b) persons appearing to OFCOM to represent the interests of those who make use of teletext services; and

(c) persons appearing to OFCOM to represent the interests of those who listen to sound programmes.

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(3) After publishing the draft code and before setting the standards, OFCOM must also consult—

(a) the Welsh Authority, about so much of the draft code as relates to television programme services;

(b) the BBC, about so much of the draft code as contains standards other than those for advertising or sponsorship; and

(c) such of the persons mentioned in subsection (4) as OFCOM think fit, about so much of the draft code as contains standards for advertising or sponsorship [F499or for product placement] .

(4) Those persons are— (a) persons appearing to OFCOM to represent the interests of those who will have

to take account of the contents of the proposed standards for advertising or sponsorship [F500or for product placement] ;

(b) bodies and associations appearing to OFCOM to be concerned with the application of standards of conduct in advertising; and

(c) professional organisations appearing to OFCOM to be qualified to give relevant advice in relation to the advertising of particular products.

(5) If it appears to OFCOM that a body exists which represents the interests of a number of the persons who hold relevant licences, they may perform their duty under subsection (2) of consulting such persons, so far as it relates to the persons whose interests are so represented, by consulting that body.

(6) OFCOM may set standards under section 319 either— (a) in the terms proposed in a draft code published under subsection (1); or (b) with such modifications as OFCOM consider appropriate in the light of the

consultation carried out as a result of subsections (2) to (5).

(7) Subsections (1) to (6) apply to a proposal by OFCOM to revise standards set under section 319 as they apply to a proposal to set such standards.

(8) Where OFCOM set standards under section 319, they must publish the code containing the standards in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by the standards.

(9) Where OFCOM revise standards set under section 319, they shall so publish the code containing the standards as revised.

(10) Where OFCOM publish a code under subsection (8) or (9), they shall send a copy of it—

(a) to the Secretary of State; (b) except in the case of a code containing standards for advertising or

sponsorship, to the BBC; and (c) if the code relates to television programme services, to the Welsh Authority.

(11) A code (or draft code) contains standards for advertising or sponsorship for the purposes of this section to the extent that it sets standards under section 319 for securing any of the objectives mentioned in any of paragraphs (g) to (k) of subsection (2) of that section.

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[F501(11A) A code (or draft code) contains standards for product placement for the purposes of this section to the extent that it sets standards under section 319 for securing the objective mentioned in paragraph (fa) of subsection (2) of that section.]

(12) In this section “relevant licence”, in relation to a draft code, means— (a) to the extent that the draft code relates to

(i) television programme services, (ii) the public teletext service, or

(iii) an additional television service, a licence under Part 1 of the 1990 Act (independent television services), under section 18 of the 1996 Act (digital television programme services) under section 25 of that Act (digital additional television services) or under section 219 of this Act; and

(b) to the extent that the draft code relates to radio programme services, any licence under Part 3 of the 1990 Act (independent radio services), under section 60 of the 1996 Act (digital sound programme service) or under section 64 of that Act (digital additional services).

Textual Amendments F499 Words in s. 324(3)(c) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 4(2) F500 Words in s. 324(4)(a) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 4(2) F501 S. 324(11A) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 4(3)

Commencement Information I474 S. 324 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

325 Observance of standards code

(1) The regulatory regime for every programme service licensed by a Broadcasting Act licence includes conditions for securing—

(a) that standards set under section 319 are observed in the provision of that service; and

(b) that procedures for the handling and resolution of complaints about the observance of those standards are established and maintained.

(2) It shall be the duty of OFCOM themselves to establish procedures for the handling and resolution of complaints about the observance of standards set under section 319.

(3) OFCOM may from time to time make a report to the Secretary of State on any issues with respect to OFCOM’s standards code which—

(a) have been identified by them in the course of carrying out their functions; and (b) appear to them to raise questions of general broadcasting policy.

(4) The conditions of a licence which is granted by OFCOM for a programme service must, for the purpose of securing compliance—

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(a) with OFCOM’s standards code, so far as it relates to advertising [F502, the sponsorship of programmes and product placement] , and

(b) with any such requirements as are mentioned in section 321(4) which relate to advertising [F503, sponsorship and product placement] but go beyond that code,

include a condition requiring the licence holder to comply with every direction given to him by OFCOM with respect to any of the matters mentioned in subsection (5).

(5) Those matters are— (a) the exclusion from the service of a particular advertisement, or its exclusion

in particular circumstances; (b) the descriptions of advertisements and methods of advertising to be excluded

from the service (whether generally or in particular circumstances); F504... (c) the forms and methods of sponsorship to be excluded from the service

(whether generally or in particular circumstances)[F505; and (d) in the case of a television programme service, the forms and methods of

product placement to be excluded from the service (including descriptions of products, services or trade marks product placement of which is to be excluded) (whether generally or in particular circumstances).]

(6) OFCOM’s powers and duties under this section are not to be construed as restricting any power of theirs, apart from this section—

(a) to include conditions with respect to the content of programmes included in any service in the licence to provide that service; or

(b) to include conditions in a licence requiring the holder of a licence to comply with directions given by OFCOM or by any other person.

Textual Amendments F502 Words in s. 325(4)(a) substituted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 5(2)(a) F503 Words in s. 325(4)(b) substituted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 5(2)(b) F504 Word in s. 325(5)(b) omitted (16.4.2010) by virtue of The Audiovisual Media Services (Product

Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 5(3)(a) F505 S. 325(5)(d) and word inserted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 5(3)(b)

Modifications etc. (not altering text) C39 S. 325(2) modified (20.7.2004) by Contracting Out (Functions relating to Broadcast Advertising) and

Specification of Relevant Functions Order 2004 (S.I. 2004/1975), art. 1, Sch. para. 1(b) (with art. 5) C40 S. 325(4) modified (20.7.2004) by Contracting Out (Functions relating to Broadcast Advertising) and

Specification of Relevant Functions Order 2004 (S.I. 2004/1975), art. 1, Sch. para. 1(c) (with art. 5)

Commencement Information I475 S. 325 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

326 Duty to observe fairness code

The regulatory regime for every programme service licensed by a Broadcasting Act licence includes the conditions that OFCOM consider appropriate for securing observance—

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(a) in connection with the provision of that service, and (b) in relation to the programmes included in that service,

of the code for the time being in force under section 107 of the 1996 Act (the fairness code).

Commencement Information I476 S. 326 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

327 Standards with respect to fairness

(1) Part 5 of the 1996 Act (functions of the Broadcasting Standards Commission which are transferred to OFCOM so far as they relate to codes of practice and complaints with respect to fairness and privacy) shall be amended as follows.

(2) No person shall be entitled to make a standards complaint under that Part at any time after the coming into force of this section, and no person shall be required to entertain any such complaint that is so made.

(3) In section 115 (consideration of fairness complaint)— (a) in subsection (4) (matters to be provided in response to a fairness complaint),

after paragraph (d) there shall be inserted— “(da) to provide OFCOM with such other things appearing

to OFCOM to be relevant to their consideration of the complaint, and to be in the possession of the relevant person, as may be specified or described by OFCOM;”

(b) in subsection (7) (requests in relation to which the relevant person is required to secure the compliance of another), after paragraph (c) there shall be inserted—

“(ca) a request to provide OFCOM with such other things appearing to OFCOM to be relevant to their consideration of the complaint, and to be in the possession of the person requested, as may be specified or described by OFCOM;”.

(4) For subsection (7) of section 119 (directions on determination of fairness complaint) there shall be substituted—

“(7) The regulatory regime for every licensed service includes the conditions that OFCOM consider appropriate for securing that the licence holder complies with every direction given to him under this section.

(7A) Section 263 of the Communications Act 2003 applies in relation to conditions included by virtue of subsection (7) in the regulatory regime for a licensed service as it applies in relation to conditions which are so included by virtue of a provision of Chapter 4 of Part 3 of that Act.

(7B) It is hereby declared that, where— (a) OFCOM exercise their powers under this Part to adjudicate upon a

fairness complaint or to give a direction under subsection (1), and (b) it appears to them that the matters to which the complaint in question

relates consist in or include a contravention of the conditions of the licence for a licensed service,

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the exercise by OFCOM of their powers under this Part is not to preclude the exercise by them of their powers under any other enactment in respect of the contravention.

(7C) Where OFCOM are proposing to exercise any of their powers in respect of a contravention of a licence condition in a case in which the contravention relates to matters that have been the subject-matter of a fairness complaint—

(a) OFCOM may have regard, in the exercise of those powers, to any matters considered or steps taken by them for the purpose of adjudicating upon that complaint and to any direction given by them under this section; but

(b) steps taken for the purposes of this Part do not satisfy a requirement to give the licence holder in relation to whom those powers are to be exercised a reasonable opportunity, before they are exercised, of making representations to OFCOM.”

(5) For subsection (2) of section 120 of that Act (reports on supplementary action taken in response to findings on fairness complaint) there shall be substituted—

“(2) Where the relevant programme was included in a licensed service, the licence holder shall send to OFCOM a report of any supplementary action taken by him or by any other person responsible for the making or provision of the relevant programme.”

Commencement Information I477 S. 327 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

328 Duty to publicise OFCOM’s functions in relation to complaints

(1) The regulatory regime for every programme service licensed by a Broadcasting Act licence includes the conditions that OFCOM consider appropriate for securing that—

(a) the procedures which, by virtue of section 325, are established and maintained for handling and resolving complaints about the observance of standards set under section 319, and

(b) their functions under Part 5 of the 1996 Act in relation to that service, are brought to the attention of the public (whether by means of broadcasts or otherwise).

(2) Conditions included in a licence by virtue of subsection (1) may require the holder of the licence to comply with every direction given to him by OFCOM for the purpose mentioned in that subsection.

Commencement Information I478 S. 328 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Power to proscribe unacceptable foreign television and radio services

329 Proscription orders

(1) Where— (a) a foreign service to which this section applies comes to OFCOM’s attention,

and (b) they consider that the service is unacceptable and should be the subject of an

order under this section, they must send a notification to the Secretary of State giving details of the service and their reasons for considering that an order should be made.

(2) A service is not to be considered unacceptable by OFCOM unless they are satisfied that—

(a) programmes containing objectionable matter are included in the service; and (b) that the inclusion of objectionable matter in programmes so included is

occurring repeatedly.

(3) Matter is objectionable for the purposes of subsection (2) only if— (a) it offends against taste or decency; (b) it is likely to encourage or to incite the commission of crime; (c) it is likely to lead to disorder; or (d) it is likely to be offensive to public feeling.

(4) Where the Secretary of State has received a notification under this section in the case of a service, he may make an order—

(a) identifying the service in such manner as he thinks fit; and (b) proscribing it.

(5) The Secretary of State is not to make an order proscribing a service unless he is satisfied that the making of the order is—

(a) in the public interest; and (b) compatible with the international obligations of the United Kingdom.

(6) The television and sound services to which this section applies are— (a) television licensable content services provided otherwise than by broadcasting

from a satellite; (b) digital television programme services; (c) digital additional television services; (d) radio licensable sound services provided otherwise than by being broadcast

from a satellite; (e) digital sound programme services; and (f) digital additional sound services.

(7) A service to which this section applies is a foreign service if it— (a) is a service capable of being received in the United Kingdom for the provision

of which no Broadcasting Act licence is either in force or required to be in force; but

(b) is also a service for the provision of which such a licence would be required— (i) in the case of a service falling within subsection (6)(a) to (c), if the

person providing it were under the jurisdiction of the United Kingdom

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for the purposes of the [F506Audiovisual Media Services Directive] ; and

(ii) in any other case, if the person providing it provided it from a place in the United Kingdom or were a person whose principal place of business is in the United Kingdom.

Textual Amendments F506 Words in s. 329(7)(b)(i) substituted (19.12.2009) by Audiovisual Media Services Regulations 2009

(S.I. 2009/2979), regs. 1(1), 8(b)

Commencement Information I479 S. 329 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

330 Effect of proscription order

(1) This section applies where a service is for the time being proscribed by an order under section 329.

(2) The proscribed service is not to be included in— (a) a multiplex service; or (b) a cable package.

(3) In this section “multiplex service” means a television multiplex service, a radio multiplex service or a general multiplex service.

(4) In this section “cable package” means (subject to subsection (5)) a service by means of which programme services are packaged together with a view to their being distributed—

(a) by means of an electronic communications service; (b) so as to be available for reception by members of the public in the United

Kingdom; and (c) without the final delivery of the programme services to the persons to whom

they are distributed being by wireless telegraphy.

(5) Programme services distributed by means of an electronic communications service do not form part of a cable package if—

(a) the distribution of those services forms only part of a service provided by means of that electronic communications service; and

(b) the purposes for which the service of which it forms a part is provided do not consist wholly or mainly in making available television programmes or radio programmes (or both) for reception by members of the public.

Commencement Information I480 S. 330 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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331 Notification for enforcing proscription

(1) Where OFCOM determine that there are reasonable grounds for believing that there has been a contravention of section 330 in relation to a multiplex service or a cable package, they may give a notification under this section to—

(a) the provider of that multiplex service; or (b) the person providing the cable package.

(2) A notification under this section is one which— (a) sets out the determination made by OFCOM; and (b) requires the person to whom it is given to secure that the proscribed service

(so long as it remains proscribed) is not— (i) included in the notified person’s multiplex service, or

(ii) distributed as part of his cable package, at any time more than seven days after the day of the giving of the notification.

(3) If it is reasonably practicable for a person to whom a notification is given under this section to secure that the proscribed service ceases to be included in that person’s multiplex service, or to be distributed as part of his cable package, before the end of that seven days, then he must do so.

(4) It shall be the duty of a person to whom a notification is given under this section to comply with the requirements imposed by the notification and by subsection (3).

(5) That duty 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.

(6) In this section “cable package” and “multiplex service” each has the same meaning as in section 330.

Commencement Information I481 S. 331 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

332 Penalties for contravention of notification under s. 331

(1) OFCOM may impose a penalty on a person who contravenes a requirement imposed on him by or under section 331.

(2) Before imposing a penalty on a person under this section OFCOM must give him a reasonable opportunity of making representations to them about their proposal to impose the penalty.

(3) The amount of the penalty imposed on a person is to be such amount not exceeding £5,000 as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention in respect of which it is imposed.

(4) In making that determination OFCOM must have regard to—

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(a) any representations made to them by the person notified under section 331; and

(b) any steps taken by him for complying with the requirements imposed on him under that section.

(5) Where OFCOM impose a penalty on a person under this section, they shall— (a) notify the person penalised; and (b) in that notification, fix a reasonable period after it is given as the period within

which the penalty is to be paid.

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

(7) The Secretary of State may by order amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (3).

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

(9) For the purposes of this section there is a separate contravention in respect of every day on which the proscribed service is at any time included in a person’s multiplex service or distributed as part of his cable package.

(10) In this section “multiplex service” and “cable package” each has the same meaning as in section 330.

Commencement Information I482 S. 332 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Party political broadcasts on television and radio

333 Party political broadcasts

(1) The regulatory regime for every licensed public service channel, and the regulatory regime for every national radio service, includes—

(a) conditions requiring the inclusion in that channel or service of party political broadcasts and of referendum campaign broadcasts; and

(b) conditions requiring that licence holder to observe such rules with respect to party political broadcasts and referendum campaign broadcasts as may be made by OFCOM.

(2) The rules made by OFCOM for the purposes of this section 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.

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(3) Those rules are 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).

(4) Rules made by OFCOM for the purposes of this section may make different provision for different cases.

(5) Before making any rules for the purposes of this section, OFCOM must have regard to any views expressed by the Electoral Commission.

(6) In this section— “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 (c. 41) in respect of that referendum;

“national radio service” means a national service within the meaning of section 245 of this Act; and

“referendum campaign broadcast” has the meaning given by section 127 of that Act.

Commencement Information I483 S. 333 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Monitoring of programmes

334 Retention and production of recordings

(1) The regulatory regime for every programme service licensed by a Broadcasting Act licence includes conditions imposing on the provider of the service—

(a) a requirement in respect of every programme included in the service to retain a recording of the programme in a specified form and for a specified period after its inclusion;

(b) a requirement to comply with any request by OFCOM to produce to them for examination or reproduction a recording retained in pursuance of the conditions in the licence; and

(c) a requirement, if the provider is able to do so, to comply with any request by OFCOM to produce to them a script or transcript of a programme included in the programme service.

(2) The period specified for the purposes of a condition under subsection (1)(a) must be— (a) in the case of a programme included in a television programme service, a

period not exceeding ninety days; and (b) in the case of a programme included in a radio programme service, a period

not exceeding forty-two days.

(3) For the purpose of maintaining supervision of the programmes included in programme services, OFCOM may themselves make and use recordings of those programmes or any part of them.

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(4) Nothing in this Part is to be construed as requiring OFCOM, in the carrying out of their functions under this Part as respects programme services and the programmes included in them, to view or listen to programmes in advance of their being included in such services.

Commencement Information I484 S. 334 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

International obligations

335 Conditions securing compliance with international obligations

(1) The regulatory regime for every service to which this section applies includes the conditions that OFCOM consider appropriate for securing that the relevant international obligations of the United Kingdom are complied with.

(2) In this section “relevant international obligations of the United Kingdom” means the international obligations of the United Kingdom which have been notified to OFCOM by the Secretary of State for the purposes of this section.

(3) This section applies to the following services— (a) any Channel 3 service; (b) Channel 4; (c) Channel 5; (d) the public teletext service; (e) any television licensable content service; (f) any digital television programme service; (g) any additional television service; (h) any digital additional television service; (i) any restricted television service.

(4) The conditions included in any licence in accordance with the other provisions of this Chapter are in addition to any conditions included in that licence in pursuance of this section and have effect subject to them.

Commencement Information I485 S. 335 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F507Co-operation with other Member States [F508and the European Commission]

Textual Amendments F507 S. 335A and cross-heading inserted (19.12.2009) by Audiovisual Media Services Regulations 2009

(S.I. 2009/2979), regs. 1(1), 7 F508 Words in s. 335A cross-heading inserted (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 13 (with Pt. 7)

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335A Co-operation with other Member States [F509and the European Commission]

[ F510(A1)

OFCOM must take all necessary steps to provide such information and assistance to member States and to the European Commission as is required in order to comply with the Audiovisual Media Services Directive as it applies in relation to relevant broadcasters, in particular Articles 2, 3, 4 and 30a of the Directive.]

(1) Where OFCOM— (a) receive under Article [F5114] of the Audiovisual Media Services Directive a

request from another member State relating to a relevant broadcaster, and (b) consider that the request is substantiated, they must ask the broadcaster to

comply with the rule identified in that request.

(2) In this section “relevant broadcaster” means— (a) the BBC; (b) C4C; (c) the Welsh Authority; or (d) the holder of—

(i) a Channel 3 licence; (ii) a Channel 5 licence; or

(iii) a licence to provide any relevant regulated television service within the meaning of section 13(1) of the Broadcasting Act 1990.]

Textual Amendments F509 Words in s. 335A heading inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 14(a) (with Pt. 7) F510 S. 335A(A1) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 14(b) (with Pt. 7) F511 Word in s. 335A(1)(a) substituted (18.8.2010) by The Audiovisual Media Services (Codification)

Regulations 2010 (S.I. 2010/1883), regs. 1, 4

[F512335BMaintenance of list of providers

(1) OFCOM must establish and maintain an up to date list of persons providing— (a) a television programme service, or (b) a digital additional television service,

who are under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.

(2) The list must indicate in respect of each person which of the criteria set out in paragraphs 2 to 5 of Article 2 of the Audiovisual Media Services Directive is the basis for the decision that they are under the jurisdiction of the United Kingdom.

(3) OFCOM must notify the European Commission of the contents of the list and of any updates to it.

(4) The regulatory regime for each service mentioned in subsection (1) must include the condition that the persons providing the service must notify OFCOM of any changes that may affect the determination of jurisdiction in accordance with paragraphs 2, 3 and 4 of Article 2 of the Audiovisual Media Services Directive.]

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Textual Amendments F512 S. 335B inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062),

regs. 1(2), 15 (with Pt. 7)

Government requirements for licensed services

336 Government requirements for licensed services

(1) If it appears to the Secretary of State or any other Minister of the Crown to be appropriate to do so in connection with any of his functions, the Secretary of State or that Minister may at any time by notice require OFCOM to give a direction under subsection (2).

(2) A direction under this subsection is a direction to the holders of the Broadcasting Act licences specified in the notice under subsection (1) to include an announcement so specified in their licensed services.

[F513(3) The direction— (a) may specify the times at which the announcement is to be broadcast or

otherwise transmitted; and (b) where the announcement relates to an emergency, including a natural disaster,

must require the information given in the announcement to be provided in a manner which is accessible to people with disabilities.]

(4) Where the holder of a Broadcasting Act licence includes an announcement in his licensed service in pursuance of a direction under this section, he may announce that he is doing so in pursuance of such a direction.

(5) The Secretary of State may, at any time, by notice require OFCOM to direct the holders of the Broadcasting Act licences specified in the notice to refrain from including in their licensed services any matter, or description of matter, specified in the notice.

(6) Where— (a) OFCOM have given the holder of a Broadcasting Act licence a direction in

accordance with a notice under subsection (5), (b) in consequence of the revocation by the Secretary of State of such a notice,

OFCOM have revoked such a direction, or (c) such a notice has expired,

the holder of the licence in question may include in the licensed service an announcement of the giving or revocation of the direction or of the expiration of the notice, as the case may be.

(7) OFCOM must comply with every requirement contained in a notice under this section.

(8) The powers conferred by this section are in addition to any powers specifically conferred on the Secretary of State by or under this Act or any other enactment.

(9) In this section “Minister of the Crown” includes the Treasury.

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team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Textual Amendments F513 S. 336(3) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 16 (with Pt. 7)

Commencement Information I486 S. 336 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Equal opportunities and training

337 Promotion of equal opportunities and training

(1) The regulatory regime for every service to which this section applies includes the conditions that OFCOM consider appropriate for requiring the licence holder to make arrangements for promoting, in relation to employment with the licence holder, equality of opportunity—

(a) between men and women; and (b) between persons of different racial groups.

(2) That regime includes conditions requiring the licence holder to make arrangements for promoting, in relation to employment with the licence holder, the equalisation of opportunities for disabled persons.

(3) The regulatory regime for every service to which this section applies includes the conditions that OFCOM consider appropriate for requiring the licence holder to make arrangements for the training and retraining of persons whom he employs, in or in connection with—

(a) the provision of the licensed service; or (b) the making of programmes to be included in that service.

(4) The conditions imposed by virtue of subsections (1) to (3) must contain provision, in relation to the arrangements made in pursuance of those conditions, requiring the person providing the service in question—

(a) to take appropriate steps to make those affected by the arrangements aware of them (including such publication of the arrangements as may be required in accordance with the conditions);

(b) from time to time, to review the arrangements; and (c) from time to time (and at least annually) to publish, in such manner as

he considers appropriate, his observations on the current operation and effectiveness of the arrangements.

(5) The conditions imposed by virtue of this section may include provision for treating obligations to make the arrangements mentioned in subsections (1) to (3), or to do anything mentioned in subsection (4), as discharged where a member of a group of companies to which the licence holder belongs—

(a) has made the required arrangements in relation to employment with the licence holder; or

(b) has done anything required by subsection (4) in relation to those arrangements.

(6) This section applies to a service if—

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(a) it is a service the provision of which is authorised by a Broadcasting Act licence; and

(b) the requirements of both subsections (7) and (8) are satisfied in the case of that service.

(7) The requirements of this subsection are satisfied in the case of a service provided by a person if—

(a) that person employs, or is likely to employ, more than the threshold number of individuals in connection with the provision of licensed services; or

(b) the threshold number is exceeded by the aggregate number of individuals who are, or are likely to be, employed in that connection by members of a group of companies comprising that person and one or more other bodies corporate.

(8) The requirements of this subsection are satisfied in the case of a service if the licence authorising the provision of that service authorises either that service or another service authorised by that licence to be provided on a number of days in any year which exceeds the threshold number of days (whether or not the service is in fact provided on those days).

(9) In this section— “disabled” has the same meaning as in [F514the Equality Act 2010 or, in

Northern Ireland,] the Disability Discrimination Act 1995 (c. 50); “licensed service”, in relation to an employee or likely employee of a person,

means a service the provision of which— (a) by that person, or (b) by a body corporate which is a member of the same group of companies

as that person,

is authorised by a Broadcasting Act licence; “racial group” has the same meaning as in the [F515Equality Act 2010] or,

in Northern Ireland, the Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6));

“the threshold number” means— (a) in relation to individuals, twenty; and (b) in relation to days, thirty-one.

(10) For the purposes of this section a person is a member of a group of companies to which a person licensed to provide a service belongs if, and only if, both of them are bodies corporate and either—

(a) one of them is controlled by the other; or (b) both of them are controlled by the same person.

(11) In subsection (10) “controlled” has the same meaning as in Part 1 of Schedule 2 to the 1990 Act.

(12) The Secretary of State may, by order— (a) amend subsection (1) by adding any other form of equality of opportunity that

he considers appropriate; (b) amend the definition of “the threshold number” in subsection (9).

(13) No order is to be made containing provision authorised by subsection (12) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

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Textual Amendments F514 Words in s. 337(9) inserted by 2010 c. 15, Sch. 26 Pt. 1 para. 55(a) (as inserted (E.W.S.) (1.10.2010)

by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 5) (see S.I. 2010/2317, art. 2)

F515 Words in s. 337(9) substituted by 2010 c. 15, Sch. 26 Pt. 1 para. 55(b) (as inserted (E.W.S.) (1.10.2010) by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 5) (see S.I. 2010/2317, art. 2)

Commencement Information I487 S. 337 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Corresponding rules for the BBC and Welsh Authority

338 Corresponding rules for the BBC and the Welsh Authority

Schedule 12 (which provides for the imposition on the BBC and the Welsh Authority of obligations corresponding to obligations included in the regulatory regime for licensed providers) shall have effect.

Commencement Information I488 S. 338 in force at 29.12.2003 for specified purposes by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement against the Welsh Authority

339 Review of fulfilment by Welsh Authority of public service remits

(1) The Secretary of State may carry out a review of the performance by the Welsh Authority of their duty to secure that each of the following public service remits—

(a) that for S4C; (b) that for S4C Digital; and (c) that for each of the television programme services provided by them with the

approval of the Secretary of State under section 205, is fulfilled in relation the services to which it applies.

(2) The first review carried out under this section— (a) shall be a review relating to the period since the passing of this Act; and (b) must not be carried out before the end of the period of five years beginning

with the day of the passing of this Act.

(3) A subsequent review— (a) shall be a review relating to the period since the end of the period to which

the previous review related; and (b) must not be carried out less than five years after the day of the publication of

the report of the previous review.

(4) On a review under this section the Secretary of State—

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(a) shall consult the National Assembly for Wales and the Welsh Authority on the matters under review; and

(b) shall have regard to their opinions when reaching his conclusions.

(5) The Secretary of State shall also consult such other persons as he considers are likely to be affected by whether, and in what manner, the Welsh Authority perform the duty mentioned in subsection (1).

(6) As soon as practicable after the conclusion of a review under this section the Secretary of State must publish a report of his conclusions.

Commencement Information I489 S. 339 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

340 Directions to Welsh Authority to take remedial action

(1) This section applies if the Secretary of State’s conclusions on a review under section 339 include a finding—

(a) that the Welsh Authority has failed in any respect to perform their duty to secure that the public service remit for a service mentioned in that section is fulfilled; and

(b) that there is no reasonable excuse for the failure.

(2) The Secretary of State may give the Welsh Authority general or specific directions requiring them to take the steps that he considers will ensure that the Authority perform their duty properly in future.

(3) The Secretary of State is not to give a direction under this section unless a draft of the proposed direction has been laid before Parliament and approved by a resolution of each House.

(4) Before laying a proposed direction before Parliament, the Secretary of State must consult the Welsh Authority.

(5) It shall be the duty of the Welsh Authority to comply with every direction under this section.

Commencement Information I490 S. 340 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

341 Imposition of penalties on the Welsh Authority

(1) This section applies to the following requirements so far as they are imposed on the Welsh Authority in relation to services provided by them—

(a) the requirements imposed by or under paragraphs 7 and 8 of Schedule 12 (programme quotas);

(b) the requirements imposed by paragraph 9(1) and (3) of that Schedule (news and current affairs);

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(c) the requirements imposed by paragraph 10 of that Schedule (code relating to programme commissioning) or by a direction under sub-paragraph (3)(d) of that paragraph;

(d) the requirement imposed by virtue of paragraph 12 of that Schedule to comply with standards set under section 319, so far as that requirement relates to standards set otherwise than for the purpose of securing the objectives set out in subsection (2)(c) or (d) of that section;

(e) the requirements imposed by paragraphs 14 and 16 of that Schedule (advertising or sponsorship) to comply with a direction under those paragraphs;

(f) the requirement imposed by paragraph 17 of that Schedule (observance of the fairness code);

(g) the requirement imposed by paragraph 19 of that Schedule (publicising complaints procedure);

(h) the requirement imposed by paragraph 20 of that Schedule (monitoring of programmes);

(i) the requirement imposed by paragraph 21 of that Schedule (international obligations) to comply with a direction under that paragraph;

(j) the requirement under paragraph 22 of that Schedule (assistance for disabled people) to comply with the code for the time being in force under section 303;

[F516(ja) the requirement imposed by paragraph 23A of that Schedule (complaints procedures for on-demand programme services) to comply with a direction under that paragraph;

[F517(jb) the requirements imposed by section 368CB, section 368D and section 368E(4) (on-demand programme services), except—

(i) the requirements imposed by section 368D(1) and section 368E(4) so far as they relate to advertising, and

(ii) the requirement imposed by section 368D(3)(za);] (k) the requirement to comply with a direction under section 119(1) of the 1996

Act (directions in respect of fairness matters).

(2) If OFCOM are satisfied that there has been a contravention of a requirement to which this section applies, they may serve on the Welsh Authority a notice requiring the Authority, within the specified period, to pay OFCOM a specified penalty.

(3) The amount of the penalty must not exceed £250,000.

(4) OFCOM are not to serve a notice on the Welsh Authority under this section unless they have given them a reasonable opportunity of making representations to OFCOM about the matters appearing to OFCOM to provide grounds for the service of the notice.

(5) An exercise by OFCOM of their powers under this section does not preclude any exercise by them of their powers under paragraph 15 of Schedule 12 in respect of the same contravention.

(6) The Secretary of State may by order substitute a different sum for the sum for the time being specified in subsection (3).

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

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Textual Amendments F516 S. 341(1)(ja)(jb) inserted (19.12.2009) by Audiovisual Media Services Regulations 2009 (S.I.

2009/2979), regs. 1(1), 5 F517 S. 341(1)(jb) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 21 (with Pt. 7)

Modifications etc. (not altering text) C41 S. 341(2) modified (20.7.2004) by Contracting Out (Functions relating to Broadcast Advertising) and

Specification of Relevant Functions Order 2004 (S.I. 2004/1975), art. 1, Sch. para. 5 (with art. 5)

Commencement Information I491 S. 341 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

342 Contraventions recorded in Welsh Authority’s annual report

In paragraph 13 of Schedule 6 to the 1990 Act (annual report of the Welsh Authority)— (a) in sub-paragraph (2), the words from “and shall include” onwards shall be

omitted; and (b) after that sub-paragraph there shall be inserted—

“(3) The report shall also— (a) set out every contravention notification given by OFCOM to

the Authority during the year; and (b) include such other information (including information

relating to the Authority’s financial position) as the Secretary of State may from time to time direct.

(4) In sub-paragraph (3), “contravention notification” means a notification of a determination by OFCOM of a contravention by the Authority of any obligation imposed by or under this Act, the 1996 Act or Part 3 of the Communications Act 2003.”

Commencement Information I492 S. 342 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

343 Provision of information by Welsh Authority

(1) It shall be the duty of the Welsh Authority to comply with every direction given to them by OFCOM to provide OFCOM with information falling within subsection (2).

(2) The information that the Welsh Authority may be directed to provide is any information which OFCOM may reasonably require for the purposes of carrying out their functions in relation to the Welsh Authority under this Act, the 1990 Act or the 1996 Act.

(3) Information that is required to be provided by a direction under this section must be provided in such manner and at such times as may be required by the direction.

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Modifications etc. (not altering text) C42 S. 343 modified (20.7.2004) by Contracting Out (Functions relating to Broadcast Advertising) and

Specification of Relevant Functions Order 2004 (S.I. 2004/1975), arts. 1, 10(1)(b) (with art. 5)

Commencement Information I493 S. 343 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of licence conditions

344 Transmission of statement of findings

(1) Sections 40 and 109 of the 1990 Act (power to direct licensee to broadcast correction or apology) shall be amended as follows.

(2) For “apology”, wherever occurring, there shall be substituted “ a statement of findings ”.

(3) After subsection (5), there shall be inserted—

“(6) For the purposes of this section a statement of findings, in relation to a case in which OFCOM are satisfied that the holder of a licence has contravened the conditions of his licence, is a statement of OFCOM’s findings in relation to that contravention.”

Commencement Information I494 S. 344 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

345 Financial penalties imposable on licence holders

Schedule 13 (which modifies the maximum penalties that may be imposed on the holders of Broadcasting Act licences) shall have effect.

Commencement Information I495 S. 345 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

346 Recovery of fees and penalties

(1) This section applies to the following amounts— (a) any amount payable to OFCOM under a Broadcasting Act licence; (b) the amount of a penalty imposed by OFCOM under Part 1 or 3 of the 1990

Act, Part 1 or 2 of the 1996 Act or this Part of this Act.

(2) Every amount to which this section applies shall be recoverable by OFCOM as a debt due to them from the person obliged to pay it.

(3) The following liabilities—

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(a) a person’s liability to have a penalty imposed on him under Part 1 or 3 of the 1990 Act, Part 1 or 2 of the 1996 Act or this Part in respect of acts or omissions of his occurring while he was the holder of a Broadcasting Act licence, and

(b) a liability of a person as the holder of such a licence to pay an amount to which this section applies,

are not affected by that person’s Broadcasting Act licence having ceased (for any reason) to be in force before the imposition of the penalty or the payment of that amount.

Commencement Information I496 S. 346 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Broadcasting Act licence fees

347 Statement of charging principles

(1) OFCOM are not to fix a tariff under section 4(3) or 87(3) of the 1990 Act or under section 4(3) or 43(3) of the 1996 Act (tariffs for fees payable under Broadcasting Act licences for recovering OFCOM’s costs) unless—

(a) at the time they do so, there is in force a statement of the principles that OFCOM are proposing to apply in fixing that tariff; and

(b) the tariff is fixed in accordance with those principles.

(2) Those principles must be such as appear to OFCOM to be likely to secure, on the basis of such estimates of the likely costs that it is practicable for them to make—

(a) that the aggregate amount of the Broadcasting Act licence fees that are required to be paid to OFCOM during a financial year is sufficient to enable them to meet, but does not exceed, the cost to them of the carrying out during that year of their functions relating to the regulation of broadcasting;

(b) that the requirement imposed by virtue of paragraph (a) is satisfied by the application to such fees of tariffs that are justifiable and proportionate to the matters in respect of which they are imposed; and

(c) that the relationship between meeting the cost of carrying out those functions and the tariffs applied to such fees is transparent.

(3) Before making or revising a statement of principles OFCOM must consult such of the persons who, in OFCOM’s opinion, are likely to be affected by those principles as they think fit.

(4) The making or revision of a statement of principles for the purposes of this section has to be by the publication of the statement, or revised statement, in such manner as OFCOM consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(5) As soon as reasonably practicable after the end of each financial year, OFCOM must publish a statement setting out, for that year—

(a) the aggregate amount received by them during that year in respect of Broadcasting Act licence fees required to be paid during that year;

(b) the aggregate amount outstanding and likely to be paid or recovered in respect of Broadcasting Act licence fees that are required to be so paid; and

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(c) the cost to OFCOM of the carrying out during that year of their functions relating to the regulation of broadcasting.

(6) Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (5) shall be—

(a) carried forward; and (b) taken into account in determining what is required to satisfy the requirement

imposed by virtue of subsection (2)(a) in relation to the following year.

(7) References in this section to OFCOM’s functions relating to the regulation of broadcasting do not include references to any of their functions in relation to the BBC or the Welsh Authority.

(8) In this section— “Broadcasting Act licence fee” means a fee required to be paid to OFCOM

in pursuance of conditions included in a Broadcasting Act licence under any of the following provisions—

(a) section 4(1)(b) or 87(1)(c) of the 1990 Act; or (b) section 4(1)(b) or 43(1)(c) of the 1996 Act;

“financial year” means a period of twelve months ending with 31st March.

Commencement Information I497 S. 347 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

CHAPTER 5

MEDIA OWNERSHIP AND CONTROL

Restrictions on licence holders

348 Modification of disqualification provisions

(1) In Part 2 of Schedule 2 to the 1990 Act (disqualification from holding licences), paragraphs (a) and (b) of paragraph 1(1) (individuals and bodies from outside the member States) shall cease to have effect.

(2) In sub-paragraph (1) of paragraph 2 of that Part (disqualification of religious bodies etc.), for the words before paragraph (a) there shall be substituted—

“2 (1) The following persons are disqualified persons in relation only to licences

falling within sub-paragraph (1A)—”.

(3) For sub-paragraphs (2) and (3) of that paragraph there shall be substituted—

“(1A) A licence falls within this sub-paragraph if it is— (a) a Channel 3 licence; (b) a Channel 5 licence; (c) a national sound broadcasting licence;

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(d) a public teletext licence; (e) an additional television service licence; (f) a television multiplex licence; or (g) a radio multiplex licence.

(1B) In this paragraph—

“additional television service licence” means a licence under Part 1 of this Act to provide an additional television service within the meaning of Part 3 of the Communications Act 2003;

“Channel 3 licence” and “Channel 5 licence” each has the same meaning as in Part 1 of this Act;

“national sound broadcasting licence” means a licence to provide a sound broadcasting service (within the meaning of Part 3 of this Act) which is a national service (within the meaning of that Part);

“public teletext licence” means a licence to provide the public teletext service (within the meaning of Part 3 of the Communications Act 2003);

“radio multiplex licence” means a licence under Part 2 of the Broadcasting Act 1996 to provide a radio multiplex service within the meaning of that Part; and

“television multiplex licence” means a licence under Part 1 of the Broadcasting Act 1996 to provide a multiplex service within the meaning of that Part.”

(4) In paragraph 4(2)(b) of that Part (bodies that are relevant bodies for the purposes of general disqualification on grounds of undue influence) for “as mentioned in paragraph (a)(i) or (ii) above” there shall be substituted—

“(i) by a person falling within paragraph 1(1)(c) to (g) above; (ii) by a person falling within paragraph 3 above; or

(iii) by two or more persons taken together each of whom falls within sub-paragraph (i) or (ii) (whether or not they all fall within the same sub-paragraph).”

(5) The Secretary of State may by order make provision— (a) for repealing paragraph 2 of Part 2 of Schedule 2 to the 1990 Act; or (b) for making such other modifications of that paragraph and any enactment

referring to it as he thinks fit.

(6) Before making an order under subsection (5) (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.

(7) No order is to be made containing provision authorised by subsection (5) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Commencement Information I498 S. 348 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11) I499 S. 348(2) (3) (5)-(7) in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2 (with art. 5)

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349 Licence holding by local authorities

(1) In Part 2 of Schedule 2 to the 1990 Act (disqualification from holding licences), in paragraph 1 (which includes a disqualification for local authorities)—

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

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

“(1A) Where a service is provided exclusively for the purposes of the carrying out of the functions of a local authority under section 142 of the Local Government Act 1972 (provision by local authorities of information relating to their activities), a person is disqualified by virtue of sub-paragraph (1) in relation to a licence to provide that service only if he would be so disqualified disregarding paragraph (c) of that sub-paragraph.”

(2) In section 142 of the Local Government Act 1972 (c. 70) (provision by local authorities of information relating to their activities), after subsection (1A) there shall be inserted—

“(1AA) A local authority may— (a) for the purpose of broadcasting or distributing information falling

within subsection (1AB), provide an electronic communications network or electronic communications service, or

(b) arrange with the provider of such a network or service for the broadcasting or distribution of such information by means of the network or service.

(1AB) Information falls within this subsection, in relation to a local authority, if it is one or both of the following—

(a) information concerning the services within the area of the authority that are provided either by the authority themselves or by other authorities mentioned in subsection (1B) below;

(b) information relating to the functions of the authority.

(1AC) Nothing in subsection (1AA) entitles a local authority to do anything in contravention of a requirement or restriction imposed by or under—

(a) the Wireless Telegraphy Act 1949, (b) the Broadcasting Act 1990, (c) the Broadcasting Act 1996, or (d) the Communications Act 2003,

and in that subsection “electronic communications network” and “electronic communications service” each has the same meaning as in the Communications Act 2003.”

(3) In section 2(1) of the Local Government Act 1986 (c. 10) (restriction on publication by a local authority of material designed to affect support for a political party), after “publish” there shall be inserted “ , or arrange for the publication of, ”.

Commencement Information I500 S. 349 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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350 Relaxation of licence-holding restrictions

(1) Parts 3 to 5 of Schedule 2 to the 1990 Act (restrictions on accumulations of interests and on licence holding by newspaper proprietors and public telecommunications providers) shall cease to have effect.

(2) In each of sections 5 and 88 of the 1990 Act and of sections 5 and 44 of the 1996 Act (under which the provisions of Schedule 2 to the 1990 Act are given effect), for paragraph (b) of subsection (1) there shall be substituted—

“(b) that a person does not become the holder of a licence if requirements imposed by or under Schedule 14 to the Communications Act 2003 would be contravened were he to do so; and

(c) that those requirements are not contravened in the case of a person who already holds a licence.”

(3) Schedule 14 (which provides for the imposition of requirements which, in the case of Channel 3 services and certain radio services, replace those imposed by or under Parts 3 and 4 of Schedule 2 to the 1990 Act and requires approval for the holding of certain licences by religious bodies etc.) shall have effect.

(4) The Secretary of State must not by order under section 411 appoint a day falling before the commencement day for paragraph 11 of Schedule 14 as the day for the coming into force of the repeal by this Act of any of the provisions of Parts 3 and 4 of Schedule 2 to the 1990 Act so far as they relate to the holding of licences for the provision of any local services (within the meaning of Part 3 of that Act).

(5) The Secretary of State must not by order under section 411 appoint a day falling before the commencement day for paragraph 12 of Schedule 14 as the day for the coming into force of the repeal by this Act of any of the provisions of Parts 3 and 4 of Schedule 2 to the 1990 Act so far as they relate to the holding of local digital sound programme licences or the provision of local digital sound programme services.

(6) In this section “the commencement day”, in relation paragraph 11 or 12 of Schedule 14, means the day on which the first order to be made under that paragraph comes into force.

Commencement Information I501 S. 350(1) (2) (4)-(6) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11) I502 S. 350(3) in force at 18.9.2003 for specified purposes by S.I. 2003/1900, art. 2(2), Sch. 2 I503 S. 350(3) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1

(with art. 11)

Changes of control

351 Changes of control of Channel 3 services

(1) The regulatory regime for every Channel 3 service provided by a body corporate includes—

(a) a condition requiring the licence holder to give OFCOM advance notification of any proposals known to the body that may give rise to a relevant change of control; and

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(b) a condition requiring the licence holder to provide OFCOM, in such manner and at such times as they may reasonably require, with such information as they consider necessary for the purposes of exercising their functions under this section and section 352.

(2) OFCOM must carry out a review where— (a) they receive notification, in accordance with a condition of a Channel 3

licence, of proposals that may give rise to a relevant change of control; or (b) a relevant change of control takes place (whether or not that change has been

previously notified to OFCOM).

(3) The review shall be a review of the effects or likely effects, in relation to the matters mentioned in subsections (4) to (7), of—

(a) the change to which the proposals may give rise; or (b) the change that has taken place.

(4) The matters mentioned in this subsection are— (a) the extent to which time available for broadcasting programmes included in

the service is allocated to programmes of each of the following descriptions— (i) original productions;

(ii) news programmes; and (iii) current affairs programmes;

(b) the extent to which programmes of each of those descriptions that are included in the service are broadcast at peak viewing times.

(5) The matters mentioned in this subsection are— (a) the extent to which Channel 3 programmes made in the United Kingdom that

are included in the service are programmes made outside the M25 area; (b) the range of Channel 3 programmes made in the United Kingdom outside that

area that are included in the service; (c) the extent to which the expenditure of the provider of the service on Channel

3 programmes is referable to programme production at different production centres outside the M25 area;

(d) the range of different such production centres to which that expenditure is referable.

(6) The matters mentioned in this subsection are— (a) the quality and range of regional programmes included in the service; (b) the quality and range of other programmes included in the service which

contribute to the regional character of the service; (c) the quality and range of the programmes made available by the licence holder

for the purposes of inclusion in the nationwide system of services referred to in section 14(1) of the 1990 Act (nationwide Channel 3 service).

(7) The matters mentioned in this subsection are— (a) the amount of time given, in the programmes included in the service—

(i) to regional programmes; and (ii) to programmes included in the service which contribute to the

regional character of the service; (b) the proportion of regional programmes included in the service which are made

within the area for which the service is provided;

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(c) the extent of the use, in connection with the service, of the services of persons employed (whether by the licence holder or any other person) within that area;

(d) the extent to which managerial or editorial decisions relating to programmes to be included in the service are taken by persons so employed within that area.

(8) In relation to a national Channel 3 service, subsections (3) to (7) have effect as if— (a) subsection (5) applied only where the service is subject to conditions imposed

by virtue of a decision of OFCOM under section 286(2) or OFCOM otherwise consider, having regard to the nature of the service, that it is appropriate to consider the matters mentioned in that subsection;

(b) references to regional programmes were references to programmes which are regional programmes (within the meaning of section 287) in relation to that service and are included in it in accordance with a condition imposed under subsection (4)(a) of that section;

(c) references to the regional character of the service were references to the regional character of parts of the service;

(d) subsection (6)(c) of this section were omitted; and (e) references, in relation to programmes such as are mentioned in paragraph (b),

to the area for which the service is provided were references to the part of that area where the people are living to whom those programmes are likely to be of particular interest.

(9) Where OFCOM carry out a review under subsection (2), they must publish a report of that review—

(a) setting out their conclusions; and (b) specifying any steps which they propose to take under section 352.

(10) In this section— “Channel 3 programmes” and “expenditure” each has the same meaning as

in section 286; “original production” has the same meaning as in section 278; “peak viewing time”—

(a) in relation to original productions, means a time determined by OFCOM for the purposes of section 278 to be a peak viewing time for the service in question; and

(b) in relation to news programmes or current affairs programmes, means a time so determined for the purposes of section 279;

“regional programme”, in relation to a Channel 3 service, means (subject to subsection (8)) 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;

“relevant change of control” means a change in the persons having control over—

(a) a body holding the licence to provide a Channel 3 service; or (b) any body which—

(i) is connected with a body holding such a licence; and

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(ii) is involved, to a substantial extent, in the provision of the programmes included in the service provided under that licence, or is likely to become so involved.

(11) Expressions used in this section and in Part 1 of Schedule 2 to the 1990 Act (restrictions on licence holders) have the same meanings in this section as in that Part.

Commencement Information I504 S. 351(1)-(3) (4)(a)(ii) (iii) (b) (5)-(9) (11) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1

(with art. 11) I505 S. 351(4)(a)(i) in force at 1.7.2004 by S.I. 2003/3142, art. 4(4)(b) (with art. 11) (as amended

(4.3.2004) by S.I. 2004/545, art. 2(2)(3)(a)) I506 S. 351(10) in force at 29.12.2003 for specified purposes by S.I. 2003/3142, art. 3(1), Sch. 1 (with art.

11) I507 S. 351(10) in force at 1.7.2004 in so far as not already in force by S.I. 2003/3142, art. 4(4)(b) (with

art. 11) (as amended (4.3.2004) by S.I. 2004/545, art. 2(2)(3)(a))

352 Action following review under s. 351

(1) If, on a review under subsection (2) of section 351, it appears to OFCOM that the relevant change of control is or would be prejudicial to one or more of the matters mentioned in subsections (4) to (6) of that section, they shall vary the licence in accordance with subsection (2).

(2) The variation— (a) must be made with a view to ensuring that the relevant change of control is

not prejudicial to any of the matters so mentioned; and (b) must be a variation for the inclusion in the licence of such conditions relating

to any of those matters as they consider appropriate.

(3) If it appears to OFCOM, having regard to the matters mentioned in subsection (7) of section 351—

(a) that the proposed change of control would be prejudicial to the regional character of the service or (as the case may be) of any parts of it, or

(b) that the actual change of control is so prejudicial, they may vary the licence so as to include in it such conditions relating to any of those matters as they consider appropriate.

(4) Subject to subsection (5), any new or varied condition imposed under this section in relation to any matter may be more onerous than the conditions relating to that matter having effect before the relevant change of control.

(5) A variation under this section must not provide for the inclusion of a new or varied condition in a licence unless the new condition, or the condition as varied, is one which (with any necessary modifications) would have been satisfied by the licence holder throughout the twelve months immediately before the relevant date.

(6) In subsection (5) “the relevant date” is the date of the relevant change of control or, if earlier, the date on which OFCOM exercise their powers under this section.

(7) A variation of a licence under this section shall be effected by the service of a notice of the variation on the licence holder.

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(8) OFCOM are not to serve a notice of a variation under this section unless they have given the body on whom it is served a reasonable opportunity, after the publication of the report of the review under section 351, of making representations to them about the variation.

(9) Where, in a case of a proposed change of control, a notice varying a licence under this section is served before the change to which it relates takes place, the variation is not to take effect until the change takes place.

(10) A condition included in a licence by a variation under this section may be further varied by OFCOM either—

(a) with the consent of the licence holder; or (b) in any other case, after complying with the requirements of section 3(4)(b)

of the 1990 Act (variation after giving opportunity for representations by the licence holder).

(11) Expressions used in this section and section 351 have the same meanings in this section as in that.

Commencement Information I508 S. 352 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

353 Changes of control of Channel 5

(1) The regulatory regime for Channel 5 includes, in every case where it is provided by a body corporate—

(a) a condition requiring the licence holder to give OFCOM advance notification of any proposals known to the body that may give rise to a relevant change of control; and

(b) a condition requiring the licence holder to provide OFCOM, in such manner and at such times as they may reasonably require, with such information as they consider necessary for the purposes of exercising their functions under this section and section 354.

(2) OFCOM must carry out a review where— (a) they receive notification, in accordance with a condition of the licence to

provide Channel 5, of proposals that may give rise to a relevant change of control; or

(b) a relevant change of control takes place (whether or not that change has been previously notified to OFCOM).

(3) The review shall be a review of the effects or likely effects, in relation to the matters mentioned in subsections (4) and (5), of—

(a) the change to which the proposals may give rise; or (b) the change that has taken place.

(4) The matters mentioned in this subsection are— (a) the extent to which time available for broadcasting programmes included in

Channel 5 is allocated to programmes of each of the following descriptions— (i) original productions;

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(ii) news programmes; and (iii) current affairs programmes;

(b) the extent to which programmes of each of those descriptions that are included in that Channel are broadcast at peak viewing times.

(5) The matters mentioned in this subsection are— (a) the extent to which programmes made in the United Kingdom that are

included in the service are programmes made outside the M25 area; (b) the range of programmes made in the United Kingdom outside that area that

are included in Channel 5; (c) the extent to which the expenditure of the provider of Channel 5 on

programmes made in the United Kingdom is referable to programme production at different production centres outside the M25 area;

(d) the range of different such production centres to which that expenditure is referable.

(6) Where OFCOM carry out a review under subsection (2), they must publish a report of that review—

(a) setting out their conclusions; and (b) specifying any steps which they propose to take under section 354.

(7) In this section— “expenditure”, in relation to a programme, means—

(a) expenditure which constitutes an investment in or is otherwise attributable to the making of the programme; or

(b) expenditure on the commissioning or other acquisition of the programme or on the acquisition of a right to include it in a service or to have it broadcast;

“original production” has the same meaning as in section 278; “peak viewing time”—

(a) in relation to original productions, means a time determined by OFCOM for the purposes of section 278 to be a peak viewing time for Channel 5; and

(b) in relation to news programmes or current affairs programmes, means a time so determined for the purposes of section 279;

“relevant change of control” means a change in the persons having control over—

(a) a body holding a licence to provide Channel 5; or (b) any body which—

(i) is connected with a body holding such a licence; and (ii) is involved, to a substantial extent, in the provision of the

programmes included in that channel, or is likely to become so involved.

(8) Expressions used in this section and in Part 1 of Schedule 2 to the 1990 Act (restrictions on licence holders) have the same meanings in this section as in that Part.

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Commencement Information I509 S. 353(1)-(3) (4)(a)(ii) (iii) (b) (5) (6) (8) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1

(with art. 11) I510 S. 353(4)(a)(i) in force at 1.7.2004 by S.I. 2003/3142, art. 4(4)(b) (with art. 11) (as amended

(4.3.2004) by S.I. 2004/545, art. 2(2)(3)(a)) I511 S. 353(7) in force at 29.12.2003 for specified purposes by S.I. 2003/3142, art. 3(1), Sch. 1 (with art.

11) I512 S. 353(7) in force at 1.7.2004 in so far as not already in force by S.I. 2003/3142, art. 4(4)(b) (with art.

11) (as amended (4.3.2004) by S.I. 2004/545, art. 2(2)(3)(a))

354 Action following review under s. 353

(1) If, on a review under subsection (2) of section 353, it appears to OFCOM that the relevant change of control is or would be prejudicial to one or more of the matters mentioned in subsections (4) and (5) of that section, they shall vary the licence in accordance with subsection (2).

(2) The variation— (a) must be made with a view to ensuring that the relevant change of control is

not prejudicial to any of the matters so mentioned; and (b) must be a variation for the inclusion in the licence of such conditions relating

to any of those matters as they consider appropriate.

(3) Subject to subsection (4), any new or varied condition imposed under this section in relation to any matter may be more onerous than the conditions relating to that matter having effect before the relevant change of control.

(4) A variation under this section must not provide for the inclusion of a new or varied condition in a licence unless the new condition, or the condition as varied, is one which (with any necessary modifications) would have been satisfied by the licence holder throughout the twelve months immediately before the relevant date.

(5) In subsection (4) “the relevant date” is the date of the relevant change of control or, if earlier, the date on which OFCOM exercise their powers under this section.

(6) A variation of a licence under this section shall be effected by the service of a notice of the variation on the licence holder.

(7) OFCOM are not to serve a notice of a variation under this section unless they have given the body on whom it is served a reasonable opportunity, after the publication of the report of the review under section 353, of making representations to them about the variation.

(8) Where, in a case of a proposed change of control, a notice varying a licence under this section is served before the change to which it relates takes place, the variation is not to take effect until the change takes place.

(9) A condition included in a licence by a variation under this section may be further varied by OFCOM either—

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

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(b) in any other case, after complying with the requirements of section 3(4)(b) of the 1990 Act (variation after giving opportunity for representations by the licence holder).

(10) Expressions used in this section and section 353 have the same meanings in this section as in that.

Commencement Information I513 S. 354 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

355 Variation of local licence following change of control

(1) The regulatory regime for every local sound broadcasting service provided by a body corporate includes—

(a) a condition requiring the licence holder to give OFCOM advance notification of any proposals known to it that may give rise to a relevant change of control; and

(b) a condition requiring the licence holder to provide OFCOM, in such manner and at such times as they may reasonably require, with such information as they consider necessary for the purposes of exercising their functions under this section and section 356.

(2) OFCOM must carry out a review where— (a) they receive notification, in accordance with a condition of a local sound

broadcasting licence, of proposals that may give rise to a relevant change of control; or

(b) a relevant change of control takes place (whether or not that change has been previously notified to OFCOM).

(3) The review shall be a review of the effects or likely effects, in relation to the matters mentioned in subsection (4), of—

(a) the change to which the proposals may give rise; or (b) the change that has taken place.

(4) Those matters are— (a) the quality and range of programmes included in the service; (b) the character of the service; (c) the extent to which OFCOM’s duty under section 314 is performed in relation

to the service.

(5) The matters to which OFCOM must have regard in determining for the purposes of this section the character of a local sound broadcasting service, include, in particular, the selection of spoken material and music in programmes included in the service.

(6) Where OFCOM carry out a review under subsection (2), they must publish a report of that review—

(a) setting out their conclusions; and (b) specifying any steps which they propose to take under section 356.

(7) In this section “relevant change of control” means a change in the persons having control over—

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(a) a body holding the licence to provide a local sound broadcasting service; or (b) any body which—

(i) is connected with a body holding such a licence; and (ii) is involved, to a substantial extent, in the provision of the programmes

included in the service provided under that licence, or is likely to become so involved.

(8) Expressions used in this section and in Schedule 2 to the 1990 Act (restrictions on licence holders) have the same meanings in this section as in that Schedule.

Commencement Information I514 S. 355 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

356 Action following review under s. 355

(1) If, on a review under section 355, it appears to OFCOM that the relevant change of control is or would be prejudicial to one or more of the matters mentioned in subsection (4) of that section, they must vary the local licence in accordance with subsection (2).

(2) The variation— (a) must be made with a view to ensuring that the relevant change of control is

not prejudicial to any of the matters so mentioned; and (b) must be a variation for the inclusion in the licence of such conditions relating

to any of those matters as they consider appropriate.

(3) Subject to subsection (4), any new or varied condition imposed under this section in relation to any matter may be more onerous than the conditions relating to that matter having effect before the relevant change of control.

(4) A variation under this section must not provide for the inclusion of any new or varied condition in a licence unless the new condition, or the condition as varied, is one which (with any necessary modifications) would have been satisfied by the licence holder throughout—

(a) the three months immediately before the relevant date; or (b) such other three month period as has been notified under subsection (5).

(5) If OFCOM consider that the performance of the licence holder during the three month period immediately preceding the relevant date is not typical of his performance during the twelve months before the relevant date they—

(a) may determine that subsection (4) is to apply by reference to such other three month period falling within those twelve months as they may determine; and

(b) must notify any determination under this subsection to the licence holder.

(6) In subsection (4) “the relevant date” is the date of the relevant change of control or, if earlier, the date on which OFCOM exercise their powers under this section.

(7) A variation of a licence under this section shall be effected by the service of a notice of the variation on the licence holder.

(8) OFCOM are not to serve a notice of a variation under this section unless they have given the body on whom it is served a reasonable opportunity, after the publication of

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the report of the review under section 355, of making representations to them about the variation.

(9) Where, in a case of a proposed change of control, a notice varying a licence under this section is served before the change to which it relates takes place, the variation is not to take effect until that change takes place.

(10) A condition included in a licence by a variation under this section may be further varied by OFCOM either—

(a) with the consent of the licence holder; or (b) in any other case, after complying with the requirements of section 86(5)(b)

of the 1990 Act (variation after giving opportunity for representations by the licence holder).

(11) Expressions used in this section and section 355 have the same meanings in this section as in that.

Commencement Information I515 S. 356 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Meaning of control

357 Meaning of “control”

(1) In paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act (control where a person will be able, without having at least a 50 per cent. interest in it, to have the affairs of a body conducted in accordance with his wishes)—

(a) for “will be able” there shall be substituted “ would (if he chose to) be able in most cases or in significant respects ”; and

(b) for “the affairs” there shall be substituted “ affairs ”.

(2) It shall be the duty of OFCOM to publish guidance setting out their intentions concerning the inclusion of particular matters in the matters that they will take into account when determining whether a person has control of a body, within the meaning of paragraph 1(3)(b) of Part 1 of Schedule 2 to the 1990 Act.

(3) OFCOM may from time to time revise the guidance issued by them under this section.

(4) OFCOM must publish the guidance and, where they revise it, the revised guidance in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

Commencement Information I516 S. 357 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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CHAPTER 6

OTHER PROVISIONS ABOUT TELEVISION AND RADIO SERVICES

Annual report on television and radio

358 Annual factual and statistical report

(1) It shall be the duty of OFCOM— (a) as soon as practicable after the end of the period of twelve months beginning

with the commencement of this section, and (b) as soon as practicable after the end of every subsequent period of twelve

months, to satisfy for that period the review and reporting requirements of this section.

(2) For any period those obligations are— (a) to carry out a review of the provision of the television and radio services

available for reception by members of the public in the United Kingdom during that period; and

(b) to prepare a factual and statistical report for that period on the provision of those services and on the state of the market in which they are provided.

(3) In carrying out a review for any period under this section, OFCOM must consider, in particular, each of the following—

(a) the extent to which programmes included during that period in television and radio services are representative of what OFCOM consider to be the principal genres for such programmes;

(b) the extent to which codes made by OFCOM under this Part or Part 4 or 5 of the 1996 Act (listed events and fairness) have been complied with during that period;

(c) the extent to which any guidance given by OFCOM under section 314 has been followed during that period;

(d) any trends appearing or operating during that period in the size and behaviour of the audience for radio and television services;

(e) the financial condition during that period of the market in which those services are provided and of the market in which programmes for such services are produced;

(f) what it is appropriate to achieve by conditions and duties under section 277 and paragraphs 1 and 7 of Schedule 12 and the effectiveness for that purpose of the conditions and duties for the time being in force;

(g) whether it would be appropriate to recommend to the Secretary of State that he exercises any of his powers under that section or those paragraphs;

(h) the extent to which work on independent productions (within the meaning of that section and those paragraphs) that are produced in the United Kingdom is done in a range of production centres outside the M25 area;

(i) any issues relating to intellectual property in programmes that have arisen or been of significance during that period;

(j) developments in technology that have occurred or become important during that period and are relevant to the provision, broadcasting or distribution of television and radio programmes;

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(k) the availability during that period of persons with skills that are used or likely to be useful in connection with the provision of television and radio services and the production of programmes for inclusion in such services;

(l) the availability during that period of facilities for the provision of training in such skills.

(4) Every report under this section must set out OFCOM’s findings on their consideration of the matters mentioned in subsection (3).

(5) Every report prepared by OFCOM under this section must be published by them— (a) as soon as practicable after its preparation is complete; and (b) in such manner as they consider appropriate.

(6) OFCOM’s duties under this section are in addition to their duties under section 264.

Commencement Information I517 S. 358 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Community radio and local digital television

359 Grants to providers

(1) OFCOM may make such grants as they consider appropriate to the provider of any service of a description of service in relation to which provision is for the time being in force under section 262.

(2) The Secretary of State may by order provide that OFCOM may also make such grants as they consider appropriate to the provider of any service of a description of service in relation to which provision is for the time being in force under section 244.

(3) A grant made by virtue of this section may be made on such terms and conditions, and shall become repayable to OFCOM in such circumstances, as may be specified by OFCOM when making the grant.

(4) A person is not— (a) by reason of the making to him of a grant by virtue of this section, or (b) by reason of any terms or conditions (including any provisions for repayment)

subject to which such a grant is or has been made to him, to be a disqualified person by virtue of any provision of Schedule 2 to the 1990 Act in relation to a licence mentioned in subsection (5).

(5) Those licences are— (a) a licence under Part 1 of the 1990 Act, or under Part 1 of the 1996 Act, which is

granted in accordance with any provision made by an order under section 244 of this Act; and

(b) a licence under Part 3 of the 1990 Act, or under Part 2 of the 1996 Act, which is granted in accordance with any provision made by an order under section 262 of this Act.

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

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Commencement Information I518 S. 359 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Supplemental provisions of Part 3

360 Amendments of the 1990 and 1996 Acts

(1) In section 201 of the 1990 Act (programme services), in subsection (1)— (a) for paragraphs (a) to (bb) there shall be substituted—

“(aa) any service which is a programme service within the meaning of the Communications Act 2003;”

(b) in paragraph (c), for “a telecommunication system” there shall be substituted “ an electronic communications network (within the meaning of the Communications Act 2003) ”.

(2) For subsection (2) of that section there shall be substituted—

“(2A) Subsection (1)(c) does not apply to so much of a service consisting only of sound programmes as—

(a) is a two-way service (within the meaning of section 248(4) of the Communications Act 2003);

(b) satisfies the conditions in section 248(5) of that Act; or (c) is provided for the purpose only of being received by persons who

have qualified as users of the service by reason of being persons who fall within paragraph (a) or (b) of section 248(7) of that Act.

(2B) Subsection (1)(c) does not apply to so much of a service not consisting only of sound programmes as—

(a) is a two-way service (within the meaning of section 232 of the Communications Act 2003);

(b) satisfies the conditions in section 233(5) of that Act; or (c) is provided for the purpose only of being received by persons who

have qualified as users of the service by reason of being persons who fall within paragraph (a) or (b) of section 233(7) of that Act.”

(3) Schedule 15 (which makes minor and consequential amendments of the 1990 Act and the 1996 Act for purposes connected with the other provisions of this Chapter) shall have effect.

Commencement Information I519 S. 360(1)(2) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11) I520 S. 360(3) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 I521 S. 360(3) in force at 18.9.2003 for specified purposes by S.I. 2003/1900, art. 2(2), Sch. 2 I522 S. 360(3) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 1

(with art. 11)

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361 Meaning of “available for reception by members of the public”

(1) The services that are to be taken for the purposes of this Part to be available for reception by members of the public include (subject to subsection (2)) any service which—

(a) is made available for reception, or is made available for reception in an intelligible form, only to persons who subscribe to the service (whether for a period or in relation to a particular occasion) or who otherwise request its provision; but

(b) is a service the facility of subscribing to which, or of otherwise requesting its provision, is offered or made available to members of the public.

[F518(2) A service is not to be treated as available for reception by members of the public if it is an on-demand programme service.]

(6) References in this section to members of the public are references to members of the public in, or in any area of, any one or more countries or territories (which may or may not include the United Kingdom).

(7) The Secretary of State may by order modify any of the provisions of this section if it appears to him appropriate to do so having regard to any one or more of the following—

(a) the protection which, taking account of the means by which the programmes and services are received or may be accessed, is expected by members of the public as respects the contents of television programmes or sound programmes;

(b) the extent to which members of the public are able, before television programmes are watched or accessed, to make use of facilities for exercising control, by reference to the contents of the programmes, over what is watched or accessed;

(c) the practicability of applying different levels of regulation in relation to different services;

(d) the financial impact for providers of particular services of any modification of the provisions of that section; and

(e) technological developments that have occurred or are likely to occur.

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

F519(9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F518 S. 361(2) substituted for s. 361(2)-(5) (19.12.2009) by Audiovisual Media Services Regulations 2009

(S.I. 2009/2979), regs. 1(1), 9(a) F519 S. 361(9) omitted (19.12.2009) by virtue of Audiovisual Media Services Regulations 2009 (S.I.

2009/2979), regs. 1(1), 9(b)

Commencement Information I523 S. 361 in force at 25.7.2003 by S.I. 2003/1900, art. 2(1), Sch. 1

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362 Interpretation of Part 3

(1) In this Part— “additional radio service” means an additional service within the meaning

given by section 114(1) of the 1990 Act for the purposes of Part 3 of that Act; “additional television service” (except in the expression “digital additional

television service”) means an additional service within the meaning given by section 48 of the 1990 Act for the purposes of Part 1 of the 1990 Act;

“analogue teletext service” is to be construed in accordance with section 218(4);

“ancillary service” has the same meaning as it has, by virtue of section 24(2) of the 1996 Act, in Part 1 of that Act;

“assistance for disabled people” [F520includes, in particular,] any of the following—

(a) subtitling; (b) audio-description for the blind and partially sighted; and (c) presentation in, or translation into, sign language;

“available for reception by members of the public” is to be construed in accordance with section 361;

“the BBC Charter and Agreement” means the following documents, or any one or more of them, so far as they are for the time being in force—

(a) a Royal Charter for the continuance of the BBC; (b) supplemental Charters obtained by the BBC under such a Royal Charter; (c) an agreement between the BBC and the Secretary of State entered into

(whether before or after the passing of this Act) for purposes that include the regulation of activities carried on by the BBC;

“BBC company” means— (a) a body corporate which is controlled by the BBC; or (b) a body corporate in which the BBC or a body corporate controlled by the

BBC is (to any extent) a participant; “C4 company” means—

(a) a body corporate which is controlled by C4C; or (b) a body corporate in which C4C or a body corporate controlled by C4C is

(to any extent) a participant; “Channel 3”, “Channel 4” and “Channel 5” each has the same meaning as

in Part 1 of the 1990 Act (see section 71 of that Act); “Channel 3 licence” means a licence to provide a Channel 3 service; “a Channel 3 service” means a television broadcasting service comprised in

Channel 3; “digital additional sound service” means a digital additional service within

the meaning given by section 63 of the 1996 Act for the purposes of Part 2 of that Act;

“digital additional television service” means a digital additional service within the meaning given by section 24(1) of the 1996 Act for the purposes of Part 1 of that Act;

“the digital public teletext service” means so much of the public teletext service as consists of a service provided in digital form;

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“digital sound programme licence” and “digital sound programme service” each has the same meaning as in Part 2 of the 1996 Act (see sections 40 and 72 of that Act);

“digital television programme service” means a digital programme service within the meaning given by section 1(4) of the 1996 Act for the purposes of Part 1 of that Act;

[F521“EEA State” has the meaning given by Schedule 1 to the Interpretation Act 1978, and “another EEA State” means an EEA State other than the United Kingdom;]

“general multiplex service” means a multiplex service within the meaning of section 175 which is neither a television multiplex service nor a radio multiplex service;

“initial expiry date” has the meaning given by section 224; “licensed public service channel” means any of the following services

(whether provided for broadcasting in digital or in analogue form)— (a) any Channel 3 service; (b) Channel 4; (c) Channel 5;

“local digital sound programme licence” and “local digital sound programme service” each has the same meaning as in Part 2 of the 1996 Act (see sections 60 and 72 of that Act);

“local radio multiplex licence” and “local radio multiplex service” each has the same meaning as in Part 2 of the 1996 Act (see sections 40 and 72 of that Act);

“local sound broadcasting licence” means a licence under Part 3 of the 1990 Act to provide a local sound broadcasting service;

“local sound broadcasting service” means a sound broadcasting service which, under subsection (4)(b) of section 245, is a local service for the purposes of that section;

“the M25 area” means the area the outer boundary of which is represented by the London Orbital Motorway (M25);

“national Channel 3 service” means a Channel 3 service provided between particular times of the day for more than one area for which regional Channel 3 services are provided;

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

“national radio multiplex licence” and “national radio multiplex service” each has the same meaning as in Part 2 of the 1996 Act (see sections 40 and 72 of that Act);

“networking arrangements” has the meaning given by section 290; “OFCOM’s standards code” means any code or codes for the time being

in force containing standards set by OFCOM under section 319 (whether originally or by way of any revision of any standards previously so set);

[F522“product placement” has the meaning given by paragraph 1 of Schedule 11A;]

“provision”, in relation to a service, is to be construed (subject to subsection (3)) in accordance with subsection (2), and cognate expressions are to be construed accordingly;

“the public teletext provider” means—

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(a) subject to paragraph (b), the person holding the licence under section 219 to provide the public teletext service; and

(b) in relation to a time before the grant of the first licence to be granted under that section, the person holding the Broadcasting Act licence to provide the existing service (within the meaning of section 221);

“the public teletext service” means the service the provision of which is required to be secured in accordance with section 218;

“qualifying service” has the same meaning as in Part 1 of the 1996 Act (see section 2(2) of that Act);

“radio licensable content service” has the meaning given by section 247; “radio multiplex service” has the same meaning as (by virtue of section 258

of this Act) it has in Part 2 of the 1996 Act; “radio programme service” means any of the following—

(a) a service the provision of which is licensed under Part 3 of the 1990 Act; (b) a digital sound programme service the provision of which is licensed

under Part 2 of the 1996 Act; (c) a digital additional sound service the provision of which is licensed under

section 64 of the 1996 Act; “regional Channel 3 licence” means a licence under Part 1 of the 1990 Act

to provide a regional Channel 3 service; “regional Channel 3 service” means a Channel 3 service provided for a

particular area determined under section 14(2) of the 1990 Act; “restricted television service” means any restricted service within the

meaning given by section 42A of the 1990 Act for the purposes of Part 1 of that Act;

“S4C” and “S4C Digital” means the services so described in section 204(3); “S4C company” means—

(a) a body corporate which is controlled by the Welsh Authority; or (b) a body corporate in which that Authority or a body corporate controlled

by that Authority is (to any extent) a participant; “simulcast radio service” means any simulcast radio service within the

meaning given by section 41(2) of the 1996 Act for the purposes of Part 2 of that Act;

“sound broadcasting service” has the same meaning as in Part 3 of the 1990 Act (see section 126 of that Act);

“standards objectives” has the meaning given by section 319(2); “subtitling” means subtitling for the deaf or hard of hearing, whether

provided by means of a teletext service or otherwise; “television broadcasting service” means (subject to subsection (4)) a service

[F523(or a dissociable section of a service)] which— (a) consists in a service of television programmes provided with a view to its

being broadcast (whether in digital or in analogue form); (b) is provided so as to be available for reception by members of the public;

and (c) is not—

(i) a restricted television service; (ii) a television multiplex service;

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(iii) a service provided under the authority of a licence under Part 1 of the 1990 Act to provide a television licensable content service; or

(iv) a service provided under the authority of a licence under Part 1 of the 1996 Act to provide a digital television programme service;

“television licensable content service” has the meaning given by section 232 of this Act;

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

“television programme service” means any of the following— (a) a television broadcasting service; (b) a television licensable content service; (c) a digital television programme service; (d) a restricted television service;

F524... “text service” means any teletext service or other service in the case of

which the visual images broadcast or distributed by means of the service consist wholly or mainly of non-representational images.

(2) In the case of any of the following services— (a) a television broadcasting service or sound broadcasting service, (b) the public teletext service; (c) a television licensable content service or radio licensable content service, (d) a digital television programme service or digital sound programme service, (e) a restricted television service, (f) an additional television service or additional radio service, (g) a digital additional television service or a digital additional sound service,

the person, and the only person, who is to be treated for the purposes of this Part as providing the service is the person with general control over which programmes and other services and facilities are comprised in the service (whether or not he has control of the content of individual programmes or of the broadcasting or distribution of the service).

(3) For the purposes of this Part— (a) the provision of a service by the BBC does not include its provision by a BBC

company; (b) the provision of a service by C4C does not include its provision by a C4

company; (c) the provision of a service by the Welsh Authority does not include its provision

by an S4C company; and, accordingly, control that is or is capable of being exercised by the BBC, C4C or the Welsh Authority over decisions by a BBC company, C4 company or S4C company about what is to be comprised in a service shall be disregarded for the purposes of subsection (2).

(4) References in this Part to a television broadcasting service do not include references to any text service.

(5) References in this Part to imposing a charge on a person in respect of his reception of a service in, or in a part of, the United Kingdom include references to imposing charges—

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(a) for his use of the service at a place in the United Kingdom or in that part of it; (b) for an entitlement of his to receive it at such place; (c) for the use of a facility by means of which he exercises such an entitlement; or (d) for the service’s being made available for reception by him at such a place.

(6) In subsection (1) “controlled” and “participant” each has the same meaning as in Schedule 2 to the 1990 Act.

(7) In this section “non-representational images” means visual images which are neither still pictures nor comprised within sequences of visual images capable of being seen as moving pictures.

Textual Amendments F520 Words in s. 362(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 17(a) (with Pt. 7) F521 Words in s. 362(1) substituted (1.10.2013) by The Broadcasting and Communications (Amendment)

Regulations 2013 (S.I. 2013/2217), regs. 1, 7 F522 Words in s. 362(1) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 6 F523 Words in s. 362(1) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 17(b) (with Pt. 7) F524 Words in s. 362(1) omitted (19.12.2009) by virtue of Audiovisual Media Services Regulations 2009

(S.I. 2009/2979), regs. 1(1), 10

Modifications etc. (not altering text) C43 S. 362(2)(3) applied by 1990 c. 42, s. 202(6A) (as inserted (29.12.2003) by Communications Act 2003

(c. 21), s. 411(2), Sch. 15 para. 68(3) (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11))

Commencement Information I524 S. 362 in force at 25.7.2003 by S.I. 2003/1900, art. 2(1), Sch. 1 (with art. 6)

PART 4

LICENSING OF TV RECEPTION

363 Licence required for use of TV receiver

(1) A television receiver must not be installed or used unless the installation and use of the receiver is authorised by a licence under this Part.

(2) A person who installs or uses a television receiver in contravention of subsection (1) is guilty of an offence.

(3) A person with a television receiver in his possession or under his control who— (a) intends to install or use it in contravention of subsection (1), or (b) knows, or has reasonable grounds for believing, that another person intends

to install or use it in contravention of that subsection, is guilty of an offence.

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(4) A person guilty of an offence under this section shall be liable, on summary conviction, to a fine not exceeding level 3 on the standard scale.

(5) Subsection (1) is not contravened by anything done in the course of the business of a dealer in television receivers solely for one or more of the following purposes—

(a) installing a television receiver on delivery; (b) demonstrating, testing or repairing a television receiver.

(6) The Secretary of State may by regulations exempt from the requirement of a licence under subsection (1) the installation or use of television receivers—

(a) of such descriptions, (b) by such persons, (c) in such circumstances, and (d) for such purposes,

as may be provided for in the regulations.

(7) Regulations under subsection (6) may make any exemption for which such regulations provide subject to compliance with such conditions as may be specified in the regulations.

Commencement Information I525 S. 363 in force at 1.4.2004 by S.I. 2003/3142, art. 4(2), Sch. 2 (with art. 11) (as amended (8.3.2004) by

S.I. 2004/697, art. 2(3))

364 TV licences

(1) A licence for the purposes of section 363 (“a TV licence”)— (a) may be issued by the BBC subject to such restrictions and conditions as the

BBC think fit; and (b) must be issued subject to such restrictions and conditions as the Secretary of

State may require by a direction to the BBC.

(2) The matters to which the restrictions and conditions subject to which a TV licence may be issued may relate include, in particular—

(a) the description of television receivers that may be installed and used under the licence;

(b) the persons authorised by the licence to install and use a television receiver; (c) the places where the installation and use of the television receiver is authorised

by the licence; (d) the circumstances in which the installation and use of such a receiver is so

authorised; (e) the purposes for which the installation and use of such a receiver is so

authorised; (f) the use of such receiver in a manner that causes, or may cause, interference

(within the meaning of [F525the Wireless Telegraphy Act 2006] ) with wireless telegraphy.

(3) The restrictions and conditions subject to which a TV licence may be issued do not include—

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(a) a provision conferring a power of entry to any premises; or (b) a provision prohibited by a direction to the BBC by the Secretary of State.

(4) A TV licence shall continue in force, unless previously revoked by the BBC, for such period as may be specified in the licence.

(5) The BBC may revoke or modify a TV licence, or the restrictions or conditions of such a licence—

(a) by a notice to the holder of the licence; or (b) by a general notice published in such manner as may be specified in the

licence.

(6) It shall be the duty of the BBC to exercise their power under subsection (5) to revoke or modify a TV licence, or any of its restrictions or conditions, if they are directed to do so by the Secretary of State.

(7) A direction by the Secretary of State under this section may be given either generally in relation to all TV licences (or all TV licences of a particular description) or in relation to a particular licence.

(8) A notice under subsection (5)(a) must be given— (a) in the manner specified in the licence; or (b) if no manner of service is so specified, in the manner authorised by

section 394.

(9) For the purposes of the application, in relation to the giving of such a notice, of— (a) section 394; and (b) section 7 of the Interpretation Act 1978 (c. 30) (service by post) in its

application for the purposes of that section, a person’s proper address is any address where he is authorised by a TV licence to install or use a TV receiver or, if there is no such address, his last known address.

Textual Amendments F525 Words in s. 364(2)(f) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 29

Commencement Information I526 S. 364 in force at 1.4.2004 by S.I. 2003/3142, art. 4(2), Sch. 2 (with art. 11) (as amended (8.3.2004) by

S.I. 2004/697, art. 2(3))

365 TV licence fees

(1) A person to whom a TV licence is issued shall be liable to pay— (a) on the issue of the licence (whether initially or by way of renewal), and (b) in such other circumstances as regulations made by the Secretary of State may

provide, such sum (if any) as may be provided for by any such regulations.

[F526(1A) Liability to pay a sum under regulations under subsection (1) is subject to any concession applying in accordance with a determination by the BBC under section 365A.]

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(2) Sums which a person is liable to pay by virtue of regulations under subsection (1) must be paid to the BBC and are to be recoverable by them accordingly.

(3) The BBC are entitled, in such cases as they may determine, to make refunds of sums received by them by virtue of regulations under this section.

(4) Regulations under this section may include provision— (a) for the means by which an entitlement to a concession [F527provided for by the

regulations] must be established; and (b) for the payment of sums by means of an instalment scheme set out in the

regulations.

(5) [F528A reference in this section or section 365A to a concession] is a reference to any concession under which a person is, on the satisfaction of specified requirements—

(a) exempted from the liability to pay a sum in respect of a TV licence; or (b) required to pay only a reduced sum in respect of such a licence.

[F529(5A) Regulations under this section may not provide for a concession that requires the person to whom the TV licence is issued, or another person, to be of or above a specified age, unless—

(a) the age specified is below 65, and (b) the requirement is not satisfied if the person concerned is 65 or over at the end

of the month in which the licence is issued.

(5B) Subsection (5A) does not apply to— (a) the concession provided for by regulation 3(d) of and Schedule 4 to the

Communications (Television Licensing) Regulations 2004 (S.I. 2004/692) (accommodation for residential care), or

(b) a concession in substantially the same form.]

(6) The consent of the Treasury shall be required for the making of any regulations under this section by the Secretary of State.

(7) Subject to subsection (8), sums received by the BBC by virtue of any regulations under this section must be paid into the Consolidated Fund.

(8) The BBC may retain, out of the sums received by them by virtue of regulations under this section, any sums they require for making refunds of sums so received.

Textual Amendments F526 S. 365(1A) inserted (1.6.2020) by Digital Economy Act 2017 (c. 30), ss. 89(3), 118(3) (as amended by

S.I. 2020/530, art. 2) F527 Words in s. 365(4)(a) inserted (1.6.2020) by Digital Economy Act 2017 (c. 30), ss. 89(4), 118(3) (as

amended by S.I. 2020/530, art. 2) F528 Words in s. 365(5) substituted (1.6.2020) by Digital Economy Act 2017 (c. 30), ss. 89(5), 118(3) (as

amended by S.I. 2020/530, art. 2) F529 S. 365(5A)(5B) inserted (1.6.2020) by Digital Economy Act 2017 (c. 30), ss. 89(6), 118(3) (as

amended by S.I. 2020/530, art. 2)

Modifications etc. (not altering text) C44 S. 365(1A) amendment by 2017 c. 30, s. 89 extended to Isle of Man (1.6.2020) by The

Communications (Isle of Man) Order 2020 (S.I. 2020/149), arts. 1(3), 3

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C45 S. 365(4)(a) amendment by 2017 c. 30, s. 89 extended to Isle of Man (1.6.2020) by The Communications (Isle of Man) Order 2020 (S.I. 2020/149), arts. 1(3), 3

C46 S. 365(5) amendment by 2017 c. 30, s. 89 extended to Isle of Man (1.6.2020) by The Communications (Isle of Man) Order 2020 (S.I. 2020/149), arts. 1(3), 3

C47 S. 365(5A)(5B) amendment by 2017 c. 30, s. 89 extended to Isle of Man (1.6.2020) by The Communications (Isle of Man) Order 2020 (S.I. 2020/149), arts. 1(3), 3

Commencement Information I527 S. 365 in force at 1.4.2004 by S.I. 2003/3142, art. 4(2), Sch. 2 (with art. 11) (as amended (8.3.2004) by

S.I. 2004/697, art. 2(3))

[F530365ATV licence fee concessions by reference to age

(1) For the purposes of section 365(1A) the BBC may determine that a concession in specified terms is to apply.

(2) Any concession under this section must include a requirement that the person to whom the TV licence is issued, or another person, is of or above a specified age, which must be 65 or higher, at or before the end of the month in which the licence is issued.

(3) A determination under this section— (a) may in particular provide for a concession to apply, subject to subsection (2),

in circumstances where a concession has ceased to have effect by virtue of section 365(5A), but

(b) may not provide for a concession to apply in the same circumstances as a concession within section 365(5B).

(4) A determination under this section may include provision for the means by which an entitlement to a concession must be established.

(5) A determination under this section— (a) may make different provision for different cases (including different provision

in respect of different areas); (b) may include transitional provision.

(6) A determination under this section— (a) must be in writing; (b) must be published in whatever way the BBC considers appropriate.

(7) The BBC— (a) may vary a determination by a further determination under this section; (b) may determine that a concession is to cease to apply (and accordingly revoke

a determination under this section).

(8) Before making, varying or revoking a determination the BBC must consult any persons it considers appropriate.]

Textual Amendments F530 S. 365A inserted (1.6.2020) by Digital Economy Act 2017 (c. 30), ss. 89(7), 118(3) (as amended by

S.I. 2020/530, art. 2)

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Modifications etc. (not altering text) C48 S. 365A amendment by 2017 c. 30, s. 89 extended to Isle of Man (1.6.2020) by The Communications

(Isle of Man) Order 2020 (S.I. 2020/149), arts. 1(3), 3 C49 S. 365A(8) amendment by 2017 c. 30, s. 89(7) extended to Guernsey (with modifications) (coming

into force in accordance with art. 1(3) of the amending S.I.) by The Communications (Bailiwick of Guernsey) Order 2020 (S.I. 2020/274), art. 3

366 Powers to enforce TV licensing

(1) If a justice of the peace, a sheriff in Scotland or a lay magistrate in Northern Ireland is satisfied by information on oath that there are reasonable grounds for believing—

(a) that an offence under section 363 has been or is being committed, (b) that evidence of the commission of the offence is likely to be on premises

specified in the information, or in a vehicle so specified, and (c) that one or more of the conditions set out in subsection (3) is satisfied,

he may grant a warrant under this section.

(2) A warrant under this section is a warrant authorising any one or more persons authorised for the purpose by the BBC or by OFCOM—

(a) to enter the premises or vehicle at any time (either alone or in the company of one or more constables); and

(b) to search the premises or vehicle and examine and test any television receiver found there.

(3) Those conditions are— (a) that there is no person entitled to grant entry to the premises or vehicle with

whom it is practicable to communicate; (b) that there is no person entitled to grant access to the evidence with whom it

is practicable to communicate; (c) that entry to the premises or vehicle will not be granted unless a warrant is

produced; (d) that the purpose of the search may be frustrated or seriously prejudiced unless

the search is carried out by a person who secures entry immediately upon arriving at the premises or vehicle.

(4) A person is not to enter premises or a vehicle in pursuance of a warrant under this section at any time more than one month after the day on which the warrant was granted.

(5) The powers conferred by a warrant under this section on a person authorised by OFCOM are exercisable in relation only to a contravention or suspected contravention of a condition of a TV licence relating to interference with wireless telegraphy.

(6) A person authorised by the BBC, or by OFCOM, to exercise a power conferred by a warrant under this section may (if necessary) use such force as may be reasonable in the exercise of that power.

(7) Where a person has the power by virtue of a warrant under this section to examine or test any television receiver found on any premises, or in any vehicle, it shall be the duty—

(a) of a person who is on the premises or in the vehicle, and

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(b) in the case of a vehicle, of a person who has charge of it or is present when it is searched,

to give the person carrying out the examination or test all such assistance as that person may reasonably require for carrying it out.

(8) A person is guilty of an offence if he— (a) intentionally obstructs a person in the exercise of any power conferred on that

person by virtue of a warrant under this section; or (b) without reasonable excuse, fails to give any assistance that he is under a duty

to give by virtue of subsection (7).

(9) A person guilty of an offence under subsection (8) shall be liable, on summary conviction, to a fine not exceeding level 5 on the standard scale.

(10) In this section— “interference”, in relation to wireless telegraphy, has the same meaning as

in [F531the Wireless Telegraphy Act 2006] ; and “vehicle” includes vessel, aircraft or hovercraft.

(11) In the application of this section to Scotland, the reference in subsection (1) to information on oath shall have effect as a reference to evidence on oath.

(12) In the application of this section to Northern Ireland, the reference in subsection (1) to a lay magistrate shall have effect, in relation to times before the coming into force of sections 9 and 10 of the Justice (Northern Ireland) Act 2002 (c. 26), as a reference to a justice of the peace.

Textual Amendments F531 Words in s. 366(10) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 30

Commencement Information I528 S. 366 in force at 1.4.2004 by S.I. 2003/3142, art. 4(2), Sch. 2 (with art. 11) (as amended (8.3.2004) by

S.I. 2004/697, art. 2(3))

F532367 Interpretation of provisions about dealer notification

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F532 S. 367 repealed (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(2), Sch. 21

para. 2

Commencement Information I529 S. 367 in force at 9.3.2004 for specified purposes by S.I. 2003/3142, art. 4(1A) (with art. 11) (as

inserted (8.3.2004) by S.I. 2004/697, art. 2(2)) I530 S. 367 in force at 1.4.2004 in so far as not already in force by S.I. 2003/3142, art. 4(2), Sch. 2 (with

art. 11) (as amended (8.3.2004) by S.I. 2004/697, art. 2(3))

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368 Meanings of “television receiver” and “use”

(1) In this Part “television receiver” means any apparatus of a description specified in regulations made by the Secretary of State setting out the descriptions of apparatus that are to be television receivers for the purposes of this Part.

(2) Regulations under this section defining a television receiver may provide for references to such a receiver to include references to software used in association with apparatus.

[F533(3) References in this Part to using a television receiver are references to using it for— (a) receiving all or any part of any television programme, or (b) receiving all or any part of a programme included in an on-demand

programme service which is provided by the BBC, and that reference to the provision of an on-demand programme service by the BBC is to be read in accordance with section 368R(5) and (6).]

(4) The power to make regulations under this section defining a television receiver includes power to modify subsection (3).

Textual Amendments F533 S. 368(3) substituted (1.9.2016) by The Communications (Television Licensing) (Amendment)

Regulations 2016 (S.I. 2016/704), regs. 1(1), 9(1) (with reg. 9(2))

Commencement Information I531 S. 368 in force at 1.4.2004 by S.I. 2003/3142, art. 4(2), Sch. 2 (with art. 11) (as amended (8.3.2004) by

S.I. 2004/697, art. 2(3))

[F534PART 4A

ON-DEMAND PROGRAMME SERVICES

Textual Amendments F534 Pt. 4A inserted (19.12.2009) by Audiovisual Media Services Regulations 2009 (S.I. 2009/2979), regs.

1(1), 2

Preliminary

[ F535368ZA

Audiovisual programmes

This Part applies in relation to the provision of programmes with or without sounds which consist of moving or still images, or of legible text, or of a combination of those things.]

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Textual Amendments F535 S. 368ZA inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062),

regs. 1(2), 22 (with Pt. 7)

368A Meaning of “on-demand programme service”

(1) For the purposes of this Act, a service [F536(or a dissociable section of a service)] is an “on-demand programme service” if—

(a) its principal purpose is the provision of programmes [F537(as described in section 368ZA)];

(b) access to it is on-demand; (c) there is a person who has editorial responsibility for it; (d) it is made available by that person for use by members of the public; and (e) that person is under the jurisdiction of the United Kingdom for the purposes

of the Audiovisual Media Services Directive.

(2) Access to a service [F538(or dissociable section of a service)] is on-demand if— (a) the service [F539(or dissociable section of the service)] enables the user to

view, at a time chosen by the user, programmes selected by the user from among the programmes included in the service [F539(or dissociable section of the service)]; and

(b) the programmes viewed by the user are received by the user by means of an electronic communications network (whether before or after the user has selected which programmes to view).

(3) For the purposes of subsection (2)(a), the fact that a programme may be viewed only within a period specified by the provider of the service [F540(or dissociable section of the service)] does not prevent the time at which it is viewed being one chosen by the user.

(4) A person has editorial responsibility for a service [F541(or dissociable section of a service)] if that person has general control—

(a) over what programmes are included in the range of programmes offered to users; and

(b) over the manner in which the programmes are organised in that range; and the person need not have control of the content of individual programmes or of the broadcasting or distribution of the service [F542(or dissociable section of the service)] (and see section 368R(6)).

(5) If an on-demand programme service (“the main service”) offers users access to a relevant ancillary service, the relevant ancillary service is to be treated for the purposes of this Part as a part of the main service.

(6) In subsection (5), “relevant ancillary service” means a service or facility that consists of or gives access to assistance for disabled people in relation to some or all of the programmes included in the main service.

(7) In this section “assistance for disabled people” has the same meaning as in Part 3.

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Textual Amendments F536 Words in s. 368A(1) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 23(a)(i) (with Pt. 7) F537 Words in s. 368A(1)(a) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 23(a)(ii) (with Pt. 7) F538 Words in s. 368A(2) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 23(b)(i) (with Pt. 7) F539 Words in s. 368A(2)(a) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 23(b)(ii) (with Pt. 7) F540 Words in s. 368A(3) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 23(c) (with Pt. 7) F541 Words in s. 368A(4) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 23(d)(i) (with Pt. 7) F542 Words in s. 368A(4) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 23(d)(ii) (with Pt. 7)

368B The appropriate regulatory authority

[ F543(A1)

OFCOM is the appropriate regulatory authority for all purposes of this Part in relation to the BBC (and, in relation to the BBC, OFCOM may not designate any other body to be the appropriate regulatory authority for any of those purposes).]

(1) OFCOM may designate any body corporate to be, to the extent provided by the designation, the appropriate regulatory authority for the purposes of any provision of this Part, subject to [F544subsections (A1) and (9)].

(2) To the extent that no body is designated for a purpose, OFCOM is the appropriate regulatory authority for that purpose.

(3) Where a body is designated for a purpose, OFCOM may act as the appropriate regulatory authority for that purpose concurrently with or in place of that body.

(4) OFCOM may provide a designated body with assistance in connection with any of the functions of the body under this Part.

(5) A designation may in particular— (a) provide for a body to be the appropriate regulatory authority in relation to on-

demand programme services of a specified description; (b) provide that a function of the appropriate regulatory authority is exercisable

by the designated body— (i) to such extent as may be specified;

(ii) either generally or in such circumstances as may be specified; and (iii) either unconditionally or subject to such conditions as may be

specified.

(6) The conditions that may be specified pursuant to subsection (5)(b)(iii) include a condition to the effect that a function may, generally or in specified circumstances, be exercised by the body only with the agreement of OFCOM.

(7) A designation has effect for such period as may be specified and may be revoked by OFCOM at any time.

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(8) OFCOM must publish any designation in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to be affected by it.

(9) OFCOM may not designate a body unless, as respects that designation, they are satisfied that the body—

(a) is a fit and proper body to be designated; (b) has consented to being designated; (c) has access to financial resources that are adequate to ensure the effective

performance of its functions as the appropriate regulatory authority; (d) is sufficiently independent of providers of on-demand programme services;

and (e) will, in performing any function to which the designation relates, have regard

in all cases— (i) to the principles under which regulatory activities should be

transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and

(ii) to such of the matters mentioned in section 3(4) as appear to the body to be relevant in the circumstances.

(10) Subject to any enactment or rule of law restricting the disclosure or use of information by OFCOM or by a designated body—

(a) a designated body may supply information to another designated body for use by that other body in connection with any of its functions as the appropriate regulatory authority;

(b) a designated body may supply information to OFCOM for use by OFCOM in connection with any of their functions under this Part;

(c) OFCOM may supply information to a designated body for use by that body in connection with any of its functions as the appropriate regulatory authority.

[ F545(d)

OFCOM may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of OFCOM as the appropriate regulatory authority;

(e) a designated body may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of the designated body as the appropriate regulatory authority.]

(11) In carrying out their functions as the appropriate regulatory authority, a designated body may carry out, commission or support (financially or otherwise) research.

(12) In this section— “designation” means a designation under this section and cognate

expressions are to be construed accordingly; “specified” means specified in a designation.

Textual Amendments F543 S. 368B(A1) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 24(a) (with Pt. 7) F544 Words in s. 368B(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 24(b) (with Pt. 7)

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F545 S. 368B(10)(d)(e) inserted (1.12.2014) by The Audiovisual Media Services Regulations 2014 (S.I. 2014/2916), regs. 1(1), 3

[F546List of providers

Textual Amendments F546 S. 368BZA and cross-heading inserted (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 25 (with Pt. 7)

368BZAMaintenance of list of providers

(1) OFCOM must establish and maintain an up to date list of persons providing an on- demand programme service.

(2) The list must indicate in respect of each person which of the criteria set out in paragraphs 2 to 5 of Article 2 of the Audiovisual Media Services Directive is the basis for the decision that they are under the jurisdiction of the United Kingdom (see section 368A(1)(e)).

(3) OFCOM must notify the European Commission of the contents of the list and of any updates to it.]

[F547Notification by providers

Textual Amendments F547 Ss. 368BA, 368BB and cross-heading inserted (18.3.2010) by The Audiovisual Media Services

Regulations 2010 (S.I. 2010/419), regs. 1(1), 4

368BA Advance notification to appropriate regulatory authority

(1) A person must not provide an on-demand programme service unless, before beginning to provide it, that person has given a notification to the appropriate regulatory authority of the person’s intention to provide that service.

(2) A person who has given a notification for the purposes of subsection (1) must, before—

(a) providing the notified service with any significant differences; or (b) ceasing to provide it,

give a notification to the appropriate regulatory authority of the differences or (as the case may be) of an intention to cease to provide the service.

(3) A notification for the purposes of this section must— (a) be sent to the appropriate regulatory authority in such manner as the authority

may require; and (b) contain all such information as the authority may require.

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368BB Enforcement of section 368BA

(1) Where the appropriate regulatory authority determine that the provider of an on- demand programme service has contravened section 368BA, they may do one or both of the following—

(a) give the provider an enforcement notification under this section; (b) impose a penalty on the provider in accordance with section 368J.

(2) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a contravention of section 368BA has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.

(3) An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes a requirement on the provider to take all such steps for remedying the contravention of section 368BA as may be specified in the notification.

(4) An enforcement notification must— (a) include reasons for the appropriate regulatory authority’s decision to give the

enforcement notification, and (b) fix a reasonable period for taking the steps required by the notification.

(5) It is the duty of a person to whom an enforcement notification has been given to comply with it.

(6) That duty is enforceable in civil proceedings by the appropriate regulatory authority— (a) for an injunction; (b) for specific performance of a statutory duty under section 45 of the Court of

Session Act 1988; or (c) for any other appropriate remedy or relief.]

[F548Accessibility

Textual Amendments F548 Ss. 368BC, 368BD and cross-heading inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss.

93(2), 118(6); S.I. 2017/765, reg. 2(y)

368BC Accessibility for people with disabilities

(1) The Secretary of State may by regulations impose requirements on providers of on-demand programme services for the purpose of ensuring that [F549such services] are accessible to people with disabilities [F550, including, in particular, people with disabilities affecting their sight or hearing, or both].

(2) The requirements that may be imposed include— (a) requirements for programmes included in the services to be accompanied by

subtitling; (b) requirements for such programmes to be accompanied by audio-description

for the blind;

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(c) requirements for such programmes to be presented in, or translated into, sign language;

[ F551(d)

requirements for providers of on-demand programme services to report annually to the appropriate regulatory authority about the accessibility of such services.]

(3) The steps set out in subsections (4) to (6) must be taken before regulations are made under this section.

(4) The Secretary of State must ask the appropriate regulatory authority to consult such persons as appear to the authority likely to be affected by regulations under this section, including—

(a) providers of on-demand programme services, and (b) representatives of people with disabilities F552....

(5) The appropriate regulatory authority must inform the Secretary of State of— (a) the outcome of the consultation, and (b) any other matters that they think should be taken into account by the Secretary

of State for the purposes of the regulations.

(6) Where OFCOM are not the appropriate regulatory authority, the Secretary of State must consult OFCOM.

(7) A statutory instrument containing regulations under this section may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

Textual Amendments F549 Words in s. 368BC(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 27(a)(i) (with Pt. 7) F550 Words in s. 368BC(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 27(a)(ii) (with Pt. 7) F551 S. 368BC(2)(d) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 27(b) (with Pt. 7) F552 Words in s. 368BC(4)(b) omitted (1.11.2020) by virtue of The Audiovisual Media Services

Regulations 2020 (S.I. 2020/1062), regs. 1(2), 27(c) (with Pt. 7)

368BD Enforcement of regulations under section 368BC

(1) Where the appropriate regulatory authority determine that a provider of an on- demand programme service is contravening or has contravened regulations under section 368BC, they may do one or both of the following—

(a) give the provider an enforcement notification under this section; (b) impose a penalty on the provider in accordance with section 368J.

(2) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a contravention of the regulations is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.

(3) An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes a requirement on the

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provider to take all such steps for complying with the regulations and for remedying the consequences of the contravention of the regulations as may be specified in the notification.

(4) An enforcement notification must— (a) include reasons for the appropriate regulatory authority's decision to give the

enforcement notification, and (b) fix a reasonable period for taking the steps required by the notification.

(5) It is the duty of a provider to whom an enforcement notification is given to comply with it.

(6) That duty is enforceable in civil proceedings by the appropriate regulatory authority— (a) for an injunction, (b) for specific performance of a statutory duty under section 45 of the Court of

Session Act 1988, or (c) for any other appropriate remedy or relief.

(7) If a provider to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification the appropriate regulatory authority may impose a financial penalty on the provider in accordance with section 368J.]

Duties of the appropriate regulatory authority

368C Duties of the appropriate regulatory authority

(1) It is the duty of the appropriate regulatory authority to take such steps as appear to them best calculated to secure that every provider of an on-demand programme service complies with the requirements of [F553sections 368CB and 368D].

[F554(2) The appropriate regulatory authority must encourage providers of on-demand programme services to develop accessibility action plans with a view to continuously and progressively making such services more accessible to people with disabilities.

(2A) The appropriate regulatory authority must provide a single, easily accessible (including by people with disabilities), online point of contact for providing information and receiving complaints regarding accessibility of on-demand programme services to people with disabilities.]

F555(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) The appropriate regulatory authority must encourage providers of on-demand programme services to develop codes of conduct regarding standards concerning the appropriate promotion of food or beverages by sponsorship of, or in advertising which accompanies or is included in, children’s programmes.

[F556(5) The appropriate regulatory authority must draw up, and from time to time review and revise, guidance for providers of on-demand programme services concerning measures that may be appropriate for the purposes of section 368E(4) (ensuring specially restricted material is not available to under-18s).]

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team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Textual Amendments F553 Words in s. 368C(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 28(a) (with Pt. 7) F554 S. 368C(2)(2A) substituted for s. 368C(2) (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 28(b) (with Pt. 7) F555 S. 368C(3) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 28(c) (with Pt. 7) F556 S. 368C(5) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 28(d) (with Pt. 7)

[ F557368CA

Code on accessibility for people with disabilities

(1) It is the duty of the appropriate regulatory authority to draw up, and from time to time review and revise, a code giving guidance as to—

(a) the steps to be taken by providers of on-demand programme services so as to meet the requirements of regulations under section 368BC, and

(b) other steps to be taken by providers who are subject to requirements under the regulations to ensure that [F558on-demand programme services] are made progressively more accessible to people with disabilities F559....

(2) The appropriate regulatory authority must publish the code drawn up under this section, and every revision of it, in such manner as, having regard to the need to make the code or revision accessible to [F560people with disabilities, in particular]

(a) persons who are deaf or hard of hearing, (b) persons who are blind or partially sighted, and (c) persons with a dual sensory impairment,

they consider appropriate.]

Textual Amendments F557 S. 368CA inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 93(4), 118(6); S.I. 2017/765,

reg. 2(y) F558 Words in s. 368CA(1)(b) substituted (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 29(a)(i) (with Pt. 7) F559 Words in s. 368CA(1)(b) omitted (1.11.2020) by virtue of The Audiovisual Media Services

Regulations 2020 (S.I. 2020/1062), regs. 1(2), 29(a)(ii) (with Pt. 7) F560 Words in s. 368CA(2) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 29(b) (with Pt. 7)

Duties of service providers

[ F561368CB

Quota for European works

(1) A person providing an on-demand programme service must secure that, in each year, on average at least 30% of the programmes included in the service are European works.

(2) A person providing an on-demand programme service must ensure the prominence of European works in the service.

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(3) Subsections (1) and (2) do not apply to a person providing an on-demand programme service in relation to any period throughout which—

(a) the service has a low turnover or a low audience, or (b) it is impracticable or unjustified for those subsections to apply because of the

nature or theme of the service.

(4) An exemption under subsection (3)(b) is at the discretion of the appropriate regulatory authority.

(5) Where a person does not provide an on-demand programme service for a whole year, compliance with subsection (1) is to be assessed in relation to the period in that year during which the person does provide the service.

(6) In assessing a provider’s compliance with subsection (1), any period for which an exemption under subsection (3)(a) or (b) applies to the provider is to be discounted.

(7) In this section— “European works” has the same meaning as in the Audiovisual Media

Services Directive (see Article 1(1)(n), (2) and (3) of that Directive) and includes works deemed to be European works by Article 1(4) of that Directive;

“programmes” does not include advertisements, news programmes, sports events, games, teletext services or teleshopping.

(8) This section is to be interpreted in accordance with the Communication from the European Commission (2020/C223/03) “Guidelines pursuant to Article 13(7) of the Audiovisual Media Services Directive on the calculation of the share of European works in on-demand catalogues and on the definition of low audience and low turnover” published in Volume 63 of the Official Journal of the European Union on 7 July 2020.]

Textual Amendments F561 S. 368CB inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062),

regs. 1(2), 30 (with Pt. 7)

368D Duties of service providers

(1) The provider of an on-demand programme service must ensure that the service complies with the requirements of sections [F562368E(1) and (2) and 368F to 368H].

(2) The provider of an on-demand programme service (“P”) must supply the following information to users of the service—

(a) P’s name; (b) P’s address; (c) P’s electronic address;

[ F563(ca)

a statement that P is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive;]

(d) the name, address and electronic address of any body which is the appropriate regulatory authority for any purpose in relation to P or [F564the on-demand programme service] that P provides.

(3) The provider of an on-demand programme service must—

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[ F565(zza)

provide the appropriate regulatory authority with a copy of any accessibility action plan drawn up by the provider as mentioned in section 368C(2);]

[ F566(za)

pay to the appropriate regulatory authority such fee as that authority may require under section 368NA;

(zb) retain a copy of every programme included in the service for at least forty- two days after the day on which the programme ceases to be available for viewing;]

(a) comply with any requirement under section 368O (provision of information); (b) co-operate fully with the appropriate authority for any purpose within

section 368O(2) or (3).

[ F567(3A)

A copy of a programme retained for the purposes of subsection (3)(zb) must be of a standard and in a format which allows the programme to be viewed as it was made available for viewing.]

(4) In this section “electronic address” means an electronic address to which users may send electronic communications, and includes any number or address used for the purposes of receiving such communications.

Textual Amendments F562 Words in s. 368D(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 31(a) (with Pt. 7) F563 S. 368D(2)(ca) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 31(b)(i) (with Pt. 7) F564 Words in s. 368D(2)(d) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 31(b)(ii) (with Pt. 7) F565 S. 368D(3)(zza) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 31(c) (with Pt. 7) F566 S. 368D(3)(za)(zb) inserted (18.3.2010) by The Audiovisual Media Services Regulations 2010 (S.I.

2010/419), regs. 1(1), 5(1) F567 S. 368D(3A) inserted (18.3.2010) by The Audiovisual Media Services Regulations 2010 (S.I.

2010/419), regs. 1(1), 5(2)

368E Harmful material

(1) An on-demand programme service must not contain any material likely to incite [F568violence or hatred against a group of persons or a member of a group of persons based on any of the grounds referred to in Article 21 of the Charter of Fundamental Rights of the European Union of 7 December 2000, as adopted at Strasbourg on 12 December 2007].

[F569(2) An on-demand programme service must not contain any prohibited material.

(3) “Prohibited material” means— [F570(za) material the inclusion of which in an on-demand programme service would

be conduct required by any of the following to be punishable as a criminal offence—

(i) Article 5 of Directive (EU) 2017/541 of the European Parliament and of the Council of 15 March 2017 on combating terrorism,

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(ii) Article 5(4) of Directive 2011/93/EU of the European Parliament and of the Council of 13 December 2011 on combating the sexual abuse and sexual exploitation of children and child pornography, or

(iii) Article 1 of Council Framework Decision (2008/913/JHA) of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law,]

(a) a video work which the video works authority has determined for the purposes of the 1984 Act not to be suitable for a classification certificate to be issued in respect of it, or

(b) material whose nature is such that it is reasonable to expect that, if the material were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would determine for those purposes that the video work was not suitable for a classification certificate to be issued in respect of it.

(4) [F571A person providing an on-demand programme service must take appropriate measures to ensure that any specially restricted material is made available by the service in a manner which secures that persons under the age of 18 will not normally see or hear it.

(4A) The measures are to be proportionate to the potential of the material to harm the physical, mental or moral development of such persons.]

(5) “Specially restricted material” means— (a) a video work in respect of which the video works authority has issued a R18

classification certificate, (b) material whose nature is such that it is reasonable to expect that, if the material

were contained in a video work submitted to the video works authority for a classification certificate, the video works authority would issue a R18 classification certificate, or

(c) other material that might F572... impair the physical, mental or moral development of persons under the age of 18.

(6) In determining whether any material falls within subsection (3)(b) or (5)(b), regard must be had to any guidelines issued by the video works authority as to its policy in relation to the issue of classification certificates.

(7) In this section— “the 1984 Act” means the Video Recordings Act 1984; “classification certificate” has the same meaning as in the 1984 Act (see

section 7 of that Act); “R18 classification certificate” means a classification certificate containing

the statement mentioned in section 7(2)(c) of the 1984 Act that no video recording containing the video work is to be supplied other than in a licensed sex shop;

“the video works authority” means the person or persons designated under section 4(1) of the 1984 Act as the authority responsible for making arrangements in respect of video works other than video games;

“video work” has the same meaning as in the 1984 Act (see section 1(2) of that Act).]

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Textual Amendments F568 Words in s. 368E(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 32(a) (with Pt. 7) F569 Ss. 368E(2)-(7) substituted for s. 368E(2) (1.12.2014) by The Audiovisual Media Services Regulations

2014 (S.I. 2014/2916), regs. 1(1), 2 F570 S. 368E(3)(za) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 32(b) (with Pt. 7) F571 S. 368E(4)(4A) substituted for s. 368E(4) (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 32(c) (with Pt. 7) F572 Word in s. 368E(5)(c) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 32(d) (with Pt. 7)

368F Advertising

(1) Advertising of the following products is prohibited in on-demand programme services—

(a) cigarettes or other tobacco products; [

F573(aa) electronic cigarettes or electronic cigarette refill containers;]

(b) any prescription-only medicine.

[F574(2) Advertising of alcoholic drinks is only permitted in on-demand programme services if—

(a) it is not aimed specifically at persons under the age of eighteen, nor does it, in particular, depict such persons consuming alcoholic drinks;

(b) it does not link the consumption of alcohol to enhanced physical performance or to driving;

(c) it does not create the impression that the consumption of alcohol contributes towards social or sexual success;

(d) it does not claim that alcohol has therapeutic qualities or that it is a stimulant, a sedative or a means of resolving personal conflicts;

(e) it does not encourage immoderate consumption of alcohol or present abstinence or moderation in a negative light; and

(f) it does not place emphasis on high alcoholic content as being a positive quality of alcoholic drinks.]

(3) Advertising included in an on-demand programme service— (a) must be readily recognisable as such, and (b) must not use techniques which exploit the possibility of conveying a message

subliminally or surreptitiously.

(4) Advertising included in an on-demand programme service must not— (a) prejudice respect for human dignity; (b) include or promote discrimination based on sex, racial or ethnic origin,

nationality, religion or belief, disability, age or sexual orientation; (c) encourage behaviour prejudicial to health or safety; (d) encourage behaviour grossly prejudicial to the protection of the environment; (e) cause physical [F575, mental] or moral detriment to persons under the age of

eighteen;

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(f) directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;

(g) directly encourage such persons to persuade their parents or others to purchase or rent goods or services;

(h) exploit the trust of such persons in parents, teachers or others; or (i) unreasonably show such persons in dangerous situations.

Textual Amendments F573 S. 368F(1)(aa) inserted (20.5.2016) by The Tobacco and Related Products Regulations 2016 (S.I.

2016/507), regs. 1(2), 46(2) F574 S. 368F(2) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 33(a) (with Pt. 7) F575 Word in s. 368F(4)(e) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 33(b) (with Pt. 7)

368G Sponsorship

(1) An on-demand programme service or a programme included in an on-demand programme service must not be sponsored—

(a) for the purpose of promoting cigarettes or other tobacco products, or (b) by an undertaking whose principal activity is the manufacture or sale of

cigarettes or other tobacco products.

[F576(1A) An on-demand programme service or a programme included in an on-demand programme service must not be sponsored—

(a) for the purpose of promoting electronic cigarettes or electronic cigarette refill containers, or

(b) by an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers.]

(2) An on-demand programme service or a programme included in an on-demand programme service must not be sponsored for the purpose of promoting a prescription- only medicine.

(3) An on-demand programme service may not include a news programme or current affairs programme that is sponsored.

(4) Subsections (5) to (11) apply to an on-demand programme service that is sponsored or that includes any programme that is sponsored.

(5) The sponsoring of a service or programme must not influence the content of that service or programme in a way that affects the editorial independence of the provider of the service.

(6) Where a service or programme is sponsored for the purpose of promoting goods or services, the sponsored service or programme and sponsorship announcements relating to it must not directly encourage the purchase or rental of the goods or services, whether by making promotional reference to them or otherwise.

(7) Where a service or programme is sponsored for the purpose of promoting an alcoholic drink, the service or programme and sponsorship announcements relating to it must not—

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(a) be aimed specifically at persons under the age of eighteen; or (b) encourage the immoderate consumption of such drinks.

(8) A sponsored service must clearly inform users of the existence of a sponsorship agreement.

(9) The name of the sponsor and the logo or other symbol (if any) of the sponsor must be displayed at the beginning or end of a sponsored programme.

(10) Techniques which exploit the possibility of conveying a message subliminally or surreptitiously must not be used in a sponsorship announcement.

(11) A sponsorship announcement must not— (a) prejudice respect for human dignity; (b) include or promote discrimination based on sex, racial or ethnic origin,

nationality, religion or belief, disability, age or sexual orientation; (c) encourage behaviour prejudicial to health or safety; (d) encourage behaviour grossly prejudicial to the protection of the environment; (e) cause physical [F577, mental] or moral detriment to persons under the age of

eighteen; [

F578(ea) directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;]

(f) directly encourage such persons to persuade their parents or others to purchase or rent goods or services;

(g) exploit the trust of such persons in parents, teachers or others; or (h) unreasonably show such persons in dangerous situations.

(12) For the purposes of this Part a programme included in an on-demand programme service is “sponsored” if a person (“the sponsor”) other than—

(a) the provider of that service, or (b) the producer of that programme,

has met some or all of the costs of the programme for the purpose of promoting the name, trademark, image, activities, services or products of the sponsor or of another person.

(13) But a programme is not sponsored if it falls within this section only by virtue of the inclusion of product placement (see section 368H(1)) or prop placement (see section 368H(2)).

(14) For the purposes of subsection (12) a person meets some or all of the costs of a programme included in a service only if that person makes a payment or provides other resources for the purpose of meeting or saving some or all of the costs of—

(a) producing that programme; (b) transmitting that programme; or (c) making that programme available as part of the service.

(15) For the purposes of this Part an on-demand programme service is “sponsored” if a person (“the sponsor”) other than the provider of the service has met some or all of the costs of providing the service for the purpose of promoting the name, trademark, image, activities, services or products of the sponsor or another person.

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(16) For the purposes of subsection (15) a person is not to be taken to have met some or all of the costs of providing a service only because a programme included in the service is sponsored by that person.

(17) In this section a “sponsorship announcement” means— (a) anything included for the purpose of complying with subsection (8) or (9), and (b) anything included at the same time as or otherwise in conjunction with

anything within paragraph (a).

Textual Amendments F576 S. 368G(1A) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 34(a) (with Pt. 7) F577 Word in s. 368G(11)(e) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 34(b)(i) (with Pt. 7) F578 S. 368G(11)(ea) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 34(b)(ii) (with Pt. 7)

368H Prohibition of product placement and exceptions

(1) “Product placement”, in relation to a programme included in an on-demand programme service, means the inclusion in the programme of, or of a reference to, a product, service or trade mark, where the inclusion—

(a) is for a commercial purpose, (b) is in return for the making of any payment, or the giving of other valuable

consideration, to any relevant provider or any connected person, and (c) is not prop placement.

(2) “Prop placement”, in relation to a programme included in an on-demand programme service, means the inclusion in the programme of, or of a reference to, a product, service or trade mark where—

(a) the provision of the product, service or trade mark has no significant value; and

(b) no relevant provider, or person connected with a relevant provider, has received any payment or other valuable consideration in relation to its inclusion in, or the reference to it in, the programme, disregarding the costs saved by including the product, service or trademark, or a reference to it, in the programme.

[F579(3) Product placement is prohibited in any of the following included in on-demand programme services—

(a) children’s programmes; (b) news and current affairs programmes; (c) consumer affairs programmes; (d) religious programmes.]

(4) Product placement is prohibited in on-demand programme services if— (a) it is of cigarettes or other tobacco products, (b) it is by or on behalf of an undertaking whose principal activity is the

manufacture or sale of cigarettes or other tobacco products, F580...

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[ F581(ba)

it is of electronic cigarettes or electronic cigarette refill containers, F582...]

[ F583(bb)

it is by or on behalf of an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers, or]

(c) it is of prescription-only medicines.

(5) Product placement of alcoholic drinks must not — (a) be aimed specifically at persons under the age of eighteen; (b) encourage immoderate consumption of such drinks.

(6) Product placement is otherwise permitted in programmes included in on-demand programme services provided that—

(a) conditions [F584B] to F are met, and (b) if subsection (14) applies, condition G is also met.

F585(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(8) Condition B is that the product placement has not influenced the content of the programme in a way that affects the editorial independence of the provider of the service.

(9) Condition C is that the product placement does not directly encourage the purchase or rental of goods or services, whether by making promotional reference to those goods or services or otherwise.

(10) Condition D is that the programme does not give undue prominence to the products, services or trade marks concerned.

(11) Condition E is that the product placement does not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.

(12) Condition F is that the way in which the product, service or trade mark, or the reference to it, is included in the programme by way of product placement does not—

(a) prejudice respect for human dignity; (b) promote discrimination based on sex, racial or ethnic origin, nationality,

religion or belief, disability, age or sexual orientation; (c) encourage behaviour prejudicial to health or safety; (d) encourage behaviour grossly prejudicial to the protection of the environment; (e) cause physical [F586, mental] or moral detriment to persons under the age of

eighteen; [

F587(ea) directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;]

(f) directly encourage such persons to persuade their parents or others to purchase or rent goods or services;

(g) exploit the trust of such persons in parents, teachers or others; or (h) unreasonably show such persons in dangerous situations.

(13) Condition G is that the on-demand programme service in question signals appropriately the fact that product placement is contained in a programme, no less frequently than—

(a) at the start and end of such a programme, and

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(b) in the case of an on-demand programme service which includes advertising breaks within it, at the recommencement of the programme after each such advertising break.

(14) This subsection applies where the programme featuring the product placement has been produced or commissioned by the provider of the service or any connected person.

(15) [F588Subject to [F589subsections (15A), (15B) and (15C)],] this section applies only in relation to programmes the production of which begins after 19th December 2009.

[ F590(15A)

Subsection (4)(ba) applies only in relation to programmes the production of which begins after 19th May 2016.]

[ F591(15B)

Subsection (4)(bb) applies only in relation to programmes the production of which begins after 31 October 2020.

(15C) This section applies in relation to a programme the production of which began before 1 November 2020 as if—

(a) subsection (3)(b) to (d) were omitted, and (b) subsection (6)(a) included a reference to a condition that the programme in

which the product, service or trademark, or the reference to it, is included is— (i) a film made for cinema,

(ii) a film or series made for a television programme service or for an on- demand programme service,

(iii) a sports programme, or (iv) a light entertainment programme.]

(16) In this section— “connected” has the same meaning as it has in the Broadcasting Act 1990

by virtue of section 202 of that Act; “film made for cinema” means a film made with a view to its being shown

to the general public first in a cinema; “producer”, in relation to a programme, means the person by whom the

arrangements necessary for the making of the programme are undertaken; [F592“programme” does not include an advertisement;] “relevant provider”, in relation to a programme, means—

(a) the provider of the on-demand programme service in which the programme is included; and

(b) the producer of the programme; “residual value” means any monetary or other economic value in the hands

of the relevant provider other than the cost saving of including the product, service or trademark, or a reference to it, in a programme;

“significant value” means a residual value that is more than trivial; and “trade mark”, in relation to a business, includes any image (such as a logo)

or sound commonly associated with that business or its products or services.

Textual Amendments F579 S. 368H(3) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 35(a) (with Pt. 7)

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F580 Word in s. 368H(4)(b) omitted (20.5.2016) by virtue of The Tobacco and Related Products Regulations 2016 (S.I. 2016/507), regs. 1(2), 46(4)(a)

F581 S. 368H(4)(ba) inserted (20.5.2016) by The Tobacco and Related Products Regulations 2016 (S.I. 2016/507), regs. 1(2), 46(4)(b)

F582 Word in s. 368H(4) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 35(b)(i) (with Pt. 7)

F583 S. 368H(4)(bb) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 35(b)(ii) (with Pt. 7)

F584 Word in s. 368H(6)(a) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 35(c) (with Pt. 7)

F585 S. 368H(7) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 35(d) (with Pt. 7)

F586 Word in s. 368H(12)(e) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 35(e) (with Pt. 7)

F587 S. 368H(12)(ea) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 35(f) (with Pt. 7)

F588 Words in s. 368H(15) inserted (20.5.2016) by The Tobacco and Related Products Regulations 2016 (S.I. 2016/507), regs. 1(2), 46(4)(c)

F589 Words in s. 368H(15) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 35(g) (with Pt. 7)

F590 S. 368H(15A) inserted (20.5.2016) by The Tobacco and Related Products Regulations 2016 (S.I. 2016/507), regs. 1(2), 46(4)(d)

F591 S. 368H(15B)(15C) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 35(h) (with Pt. 7)

F592 Words in s. 368H(16) inserted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 7

368I Enforcement of [F593sections 368CB and 368D]

(1) Where the appropriate regulatory authority determine that a provider of an on- demand programme service is contravening or has contravened [F594section 368CB or] section 368D they may do one or both of the following—

(a) give the provider an enforcement notification under this section; (b) impose a financial penalty on the provider in accordance with section 368J.

(2) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a contravention of [F595section 368CB or] section 368D is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.

(3) An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes requirements on the provider to take such steps for complying with [F596section 368CB or] section 368D and for remedying the consequences of the contravention F597... as may be specified in the notification.

(4) The requirements specified in an enforcement notification may in particular include requirements to do one or more of the following—

(a) cease providing or restrict access to– (i) a specified programme, or

(ii) programmes of a specified description;

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(b) cease showing or restrict access to– (i) a specified advertisement, or

(ii) advertisements of a specified description; (c) provide additional information to users of the service prior to the selection of

a specified programme by the user for viewing; (d) show an advertisement only with specified modifications; (e) publish a correction in the form and place and at the time specified; or (f) publish a statement of the findings of the appropriate regulatory authority in

the form and place and at the time specified.

(5) An enforcement notification must— (a) include reasons for the appropriate regulatory authority’s decision to give the

enforcement notification, and (b) fix a reasonable period for the taking of the steps required by the notification.

(6) Where a provider is required by an enforcement notification to publish a correction or a statement of findings, the provider may publish with the correction or statement of findings a statement that it is published in pursuance of the enforcement notification.

(7) It is the duty of a provider to whom an enforcement notification has been given to comply with it.

(8) That duty is enforceable in civil proceedings by the appropriate regulatory authority— (a) for an injunction; (b) for specific performance of a statutory duty under section 45 of the Court of

Session Act 1988; or (c) for any other appropriate remedy or relief.

(9) If a provider to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification the appropriate regulatory authority may impose a financial penalty on that provider in accordance with section 368J.

[F598(10) A financial penalty may not be imposed on a provider of an on-demand programme service under subsection (1) or (9) in respect of an act or omission if the provider has been convicted of a criminal offence in respect of that act or omission.]

Textual Amendments F593 Words in s. 368I heading substituted (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 36(a) (with Pt. 7) F594 Words in s. 368I(1) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 36(b) (with Pt. 7) F595 Words in s. 368I(2) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 36(c) (with Pt. 7) F596 Words in s. 368I(3) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 36(d)(i) (with Pt. 7) F597 Words in s. 368I(3) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 36(d)(ii) (with Pt. 7) F598 S. 368I(10) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 36(e) (with Pt. 7)

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[F599368IAEnforcement of section 368E(4)

(1) Where the appropriate regulatory authority determine that a provider of an on-demand programme service has failed to take a measure which the authority consider to be appropriate in relation to that service for the purpose mentioned in section 368E(4), or has failed to implement such a measure effectively, the authority may do one or both of the following—

(a) give the provider an enforcement notification under this section; (b) impose a financial penalty on the provider in accordance with section 368J.

(2) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a failure as mentioned in that subsection is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent failure.

(3) An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes requirements on the provider to take such steps for complying with section 368E(4) and for remedying the failure as may be specified in the notification.

(4) The requirements specified in an enforcement notification may in particular include requirements to do one or more of the following—

(a) cease providing or restrict access to— (i) a specified programme, or

(ii) programmes of a specified description; (b) cease showing or restrict access to—

(i) a specified advertisement, or (ii) advertisements of a specified description;

(c) provide additional information to users of the service prior to the selection of a specified programme by the user for viewing;

(d) take a specified measure that the appropriate regulatory authority consider to be appropriate for the purpose mentioned in section 368E(4);

(e) make specified changes to the way in which a provider implements a measure it has taken for that purpose;

(f) show an advertisement only with specified modifications; (g) publish a correction in the form and place and at the time specified; or (h) publish a statement of the findings of the appropriate regulatory authority in

the form and place and for the time period specified.

(5) An enforcement notification must— (a) include reasons for the appropriate regulatory authority’s decision to give the

enforcement notification, and (b) fix a reasonable period for the taking of the steps required by the notification.

(6) Where a person is required by an enforcement notification to publish a correction or a statement of findings, the person may publish with the correction or statement of findings a statement that it is published in pursuance of the enforcement notification.

(7) It is the duty of a person to whom an enforcement notification has been given to comply with it.

(8) That duty is enforceable in civil proceedings by the appropriate regulatory authority— (a) for an injunction;

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(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988; or

(c) for any other appropriate remedy or relief.

(9) If a person to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification, the appropriate regulatory authority may impose a financial penalty on that person in accordance with section 368J.]

Textual Amendments F599 S. 368IA inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062),

regs. 1(2), 37 (with Pt. 7)

Financial penalties

368J Financial penalties

(1) The amount of a penalty imposed on a provider under section [F600368BB][F601,][F602368BD, 368I or 368IA] is to be such amount not exceeding 5 per cent. of the provider’s applicable qualifying revenue or £250,000 whichever is the greater amount, as the appropriate regulatory authority determine to be—

(a) appropriate; and (b) proportionate to the contravention [F603or failure] in respect of which it is

imposed.

[ F604(1A)

Where the provider in question is the BBC, the amount of the penalty is to be such amount not exceeding the amount for the time being specified in an order under section 198(6) or, if no such order is in force, £250,000, as OFCOM determine to be—

(a) appropriate; and (b) proportionate to the contravention or failure in respect of which it is imposed.]

(2) In determining the amount of a penalty under subsection (1) [F605or (1A)] the appropriate regulatory authority must have regard to any statement published by OFCOM under section 392 (guidelines to be followed in determining amount of penalties).

(3) The “applicable qualifying revenue”, in relation to a provider, means— (a) the qualifying revenue for the provider’s last complete accounting period

falling within the period during which the provider has been providing the service to which the contravention [F606or failure] relates; or

(b) in relation to a person whose first complete accounting period falling within that period has not ended when the penalty is imposed, the amount that the appropriate regulatory authority estimate to be the qualifying revenue for that period.

(4) For the purposes of subsection (3) the “qualifying revenue” for an accounting period consists of the aggregate of all the amounts received or to be received by the provider of the service to which the contravention [F607or failure] relates or by any connected person in the accounting period —

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(a) for the inclusion in that service of advertisements, product placement and sponsorship; and

(b) in respect of charges made in that period for the provision of programmes included in that service.

(5) For the purposes of subsection (4), “connected” has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act.

(6) A financial penalty imposed under this section— (a) must be paid into the appropriate Consolidated Fund; and (b) if not paid within the period fixed by the appropriate regulatory authority, is

to be recoverable by the appropriate regulatory authority as a debt due to them from the person obliged to pay it.

(7) For the purposes of subsections (3) and (6)— (a) the amount of a person’s qualifying revenue for an accounting period, or (b) the amount of any payment to be made into the appropriate Consolidated Fund

by any person in respect of any such revenue, is, in the event of a disagreement between the appropriate regulatory authority and that person, the amount determined by the appropriate regulatory authority.

(8) The references in this section to the payment of an amount into the appropriate Consolidated Fund—

(a) in the case of an amount received in respect of matters appearing to OFCOM to have no connection with Northern Ireland, is a reference to the payment of the amount into the Consolidated Fund of the United Kingdom;

(b) in the case of an amount received in respect of matters appearing to OFCOM to have a connection with Northern Ireland but no connection with the rest of the United Kingdom, is a reference to the payment of the amount into the Consolidated Fund of Northern Ireland; and

(c) in any other case, is a reference to the payment of the amount, in such proportions as OFCOM consider appropriate, into each of those Funds.

Textual Amendments F600 Words in s. 368J(1) inserted (18.3.2010) by The Audiovisual Media Services Regulations 2010 (S.I.

2010/419), regs. 1(1), 7 F601 Word in s. 368J(1) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 93(5), 118(6); S.I.

2017/765, reg. 2(y) F602 Words in s. 368J(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 38(a)(i) (with Pt. 7) F603 Words in s. 368J(1) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 38(a)(ii) (with Pt. 7) F604 S. 368J(1A) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 38(b) (with Pt. 7) F605 Words in s. 368J(2) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 38(c) (with Pt. 7) F606 Words in s. 368J(3)(a) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 38(d) (with Pt. 7) F607 Words in s. 368J(4) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 38(e) (with Pt. 7)

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Suspension or restriction of service

368K Suspension or restriction of service for contraventions [F608or failures]

(1) The appropriate regulatory authority must serve a notice under subsection (2) on a provider of an on-demand programme service if they are satisfied—

(a) that the provider is in contravention of section [F609368BA [F610, 368CB] or ] 368D[F611, or of regulations under section 368BC][F612, or has failed to take a measure which the authority consider to be appropriate in relation to that service for the purpose mentioned in section 368E(4), or has failed to implement such a measure effectively];

[F613(b) that the imposition of one or more financial penalties or enforcement notifications under section 368BB, 368BD, 368I or 368IA has not resulted in the remedying of the contravention or failure in question; and]

(c) that the giving of a direction under this section would be appropriate and proportionate to the seriousness of the contravention [F614or failure].

(2) A notice under this subsection must— (a) state that the appropriate regulatory authority are satisfied as mentioned in

subsection (1); (b) state the reasons why they are satisfied as mentioned in subsection (1); (c) state that the appropriate regulatory authority will give a direction under this

section unless the provider takes, within a period specified in the notice, such steps to remedy the contravention [F615or failure] within subsection (1)(a) as are so specified;

(d) specify any conditions that the appropriate regulatory authority propose to impose in the direction under section 368M(5)(b); and

(e) inform the provider that the provider has the right to make representations to the appropriate regulatory authority about the matters appearing to the authority to provide grounds for giving the proposed direction within the period specified for the purposes of paragraph (c).

(3) If, after considering any representations made to them by the provider within that period, the appropriate regulatory authority are satisfied that the provider has failed to take the steps specified in the notice for remedying the contravention [F616or failure] and that it is necessary in the public interest to give a direction under this section, the appropriate regulatory authority must give such of the following as appears to them appropriate and proportionate as mentioned in subsection (1)(c)—

(a) a direction that the entitlement of the provider to provide an on-demand programme service is suspended (either generally or in relation to a particular service);

(b) a direction that that entitlement is restricted in the respects set out in the direction.

Textual Amendments F608 Words in s. 368K heading inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 39(a) (with Pt. 7) F609 Words in s. 368K(1)(a) inserted (18.3.2010) by The Audiovisual Media Services Regulations 2010

(S.I. 2010/419), regs. 1(1), 8(2)

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F610 Words in s. 368K(1)(a) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 39(b)(i) (with Pt. 7)

F611 Words in s. 368K(1)(a) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 93(6)(a), 118(6); S.I. 2017/765, reg. 2(y)

F612 Words in s. 368K(1)(a) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 39(b)(ii) (with Pt. 7)

F613 S. 368K(1)(b) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 39(c) (with Pt. 7)

F614 Words in s. 368K(1)(c) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 39(d) (with Pt. 7)

F615 Words in s. 368K(2)(c) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 39(d) (with Pt. 7)

F616 Words in s. 368K(3) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062), regs. 1(2), 39(d) (with Pt. 7)

368L Suspension or restriction of service for inciting crime or disorder

(1) The appropriate regulatory authority must serve a notice under subsection (2) on a provider of an on-demand programme service if they are satisfied—

[F617(a) that— (i) the service has failed to comply with any requirement of

section 368E(1) or (2) or sections 368F to 368H and that accordingly the provider has contravened section 368D(1), or

(ii) the provider has failed to take a measure which the authority consider to be appropriate in relation to that service for the purpose mentioned in section 368E(4), or has failed to implement such a measure effectively;]

(b) that the failure is due to [F618, or has resulted in,] the inclusion in the service of material likely to encourage or to incite the commission of crime, or to lead to disorder; and

(c) that the contravention [F619or failure] is such as to justify the giving of a direction under this section.

(2) A notice under this subsection must— (a) state that the appropriate regulatory authority are satisfied as mentioned in

subsection (1); [F620(b) give details about the matters which, in their opinion, constitute the

contravention or failure in question;] (c) specify the effect of the notice in accordance with subsection (3); (d) state that the appropriate regulatory authority may give a direction under this

section after the end of the period of twenty-one days beginning with the day on which the notice is served on the provider; and

(e) inform the provider of the provider’s right to make representations to the appropriate regulatory authority within that period about the matters appearing to the appropriate regulatory authority to provide grounds for giving a direction under this section.

(3) A notice under subsection (2) has the effect specified under subsection (2)(c), which may be either—

(a) that the entitlement of the provider to provide an on-demand programme service is suspended (either generally or in relation to a particular service), or

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(b) that that entitlement is restricted in the respects set out in the notice.

(4) The suspension or restriction has effect as from the time when the notice is served on the provider until either—

(a) a direction given under this section takes effect; or (b) the appropriate regulatory authority decide not to give such a direction.

(5) If, after considering any representations made to them by the provider within the period mentioned in subsection (2)(d), the appropriate regulatory authority are satisfied that it is necessary in the public interest to give a direction under this section, they must give such of the following as appears to them justified as mentioned in subsection (1)(c)—

(a) a direction that the entitlement of the provider to provide an on-demand programme service is suspended (either generally or in relation to a particular service);

(b) a direction that that entitlement is restricted in the respects set out in the direction.

Textual Amendments F617 S. 368L(1)(a) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 40(a) (with Pt. 7) F618 Words in s. 368L(1)(b) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 40(b) (with Pt. 7) F619 Words in s. 368L(1)(c) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 40(c) (with Pt. 7) F620 S. 368L(2)(b) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 40(d) (with Pt. 7)

368M Supplementary provision about directions

(1) This section applies to a direction given to a provider under section 368K or 368L.

(2) A direction must specify the service to which it relates or specify that it relates to any on-demand programme service provided or to be provided by the provider.

(3) A direction, except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the provider.

(4) A direction under section 368L must specify a time for it to take effect, and that time must not fall before the end of twenty-eight days beginning with the day on which the direction is notified to the provider.

(5) A direction— (a) may provide for the effect of a suspension or restriction to be postponed by

specifying that it takes effect only at a time determined by or in accordance with the terms of the direction; and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the provider as appear to the appropriate regulatory authority to be appropriate for the purpose of protecting that provider’s customers.

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(6) If the appropriate regulatory authority consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction or modify its conditions—

(a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such services as they may determine.

368N Enforcement of directions under section 368K or 368L

(1) A person (“P”) is guilty of an offence if P provides an on-demand programme service—

(a) while P’s entitlement to do so is suspended by a direction under section 368K or 368L, or

(b) in contravention of a restriction contained in such a direction.

(2) A person guilty of an offence under this section is liable— (a) on summary conviction, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine.

[F621Fees

Textual Amendments F621 S. 368NA and cross-heading inserted (18.3.2010) by The Audiovisual Media Services Regulations

2010 (S.I. 2010/419), regs. 1(1), 9 (with reg. 13)

368NA Fees

(1) In this section “the authority” means each of these— (a) the appropriate regulatory authority; (b) (where they are not the appropriate regulatory authority) OFCOM.

(2) The authority may require a provider of an on-demand programme service to pay them a fee.

(3) The authority must be satisfied that the amount of any fee required under subsection (2) —

(a) represents the appropriate contribution of the provider towards meeting the likely costs described in subsection (5)(a), and

(b) is justifiable and proportionate having regard to the provider who will be required to pay it and the functions in respect of which it is imposed.

(4) A different fee may be required in relation to different cases or circumstances.

(5) The authority must, for each financial year— (a) prepare such estimate as it is practicable for them to make of the likely costs

of carrying out the relevant functions during that year; (b) ensure that the aggregate amount of the fees that are required to be paid to

them under subsection (2) during that year is sufficient to enable them to meet, but not exceed, the costs estimated under paragraph (a);

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(c) consult in such manner as they consider appropriate the providers likely to be required to pay them a fee under subsection (2) during that year;

(d) publish in such manner as they consider appropriate the amount of the fees they will require providers to pay to them under subsection (2) during that year.

(6) As soon as reasonably practicable after the end of the financial year, the authority must publish a statement setting out, for that year—

(a) the aggregate amount received by them during that year in respect of fees required to be paid under subsection (2);

(b) the aggregate amount outstanding and likely to be paid or recovered in respect of fees that were required to be so paid under subsection (2); and

(c) the costs to them of carrying out the relevant functions during that year.

(7) Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (6) is to be—

(a) carried forward; and (b) taken into account in determining what is required to satisfy the requirement

imposed by virtue of subsection (5)(b) in relation to the following year.

(8) The authority may repay to a person some or all of a fee paid to them by a person under subsection (2) if—

(a) that person has ceased to provide an on-demand programme service at some time during the period to which the fee relates;

(b) before ceasing to provide that service, that person gave the appropriate regulatory authority a notification under section 368BA(2); and

(c) that person did not cease to provide the service following a direction given by the appropriate regulatory authority under section 368K or 368L.

(9) The authority may make arrangements with any body designated under section 368B for that body to provide the authority with assistance in connection with the collection or repayment of fees required by them under this section.

(10) For the purposes of this section— (a) the authority’s costs of carrying out the relevant functions during a financial

year include their costs of preparing to carry out the relevant functions incurred during that year; and

(b) the authority’s costs of preparing to carry out the relevant functions incurred after 19 December 2009 but before the financial year in which those functions were first carried out by them are to be treated as if they were incurred during that year.

(11) In this section “relevant functions” means— (a) in relation to the appropriate regulatory authority, their functions as the

appropriate regulatory authority; (b) in relation to OFCOM (where they are not the appropriate regulatory

authority), their other functions under this Part.

(12) In this section “financial year” means a period of 12 months ending with 31 March.]

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Information

368O Power to demand information

(1) The appropriate regulatory authority may require a person who appears to them to be or to have been a provider of an on-demand programme service and to have information that they require for a purpose within subsection (2) to provide them with all such information as they consider necessary for that purpose.

(2) The following are within this subsection— (a) the purposes of an investigation which the appropriate regulatory authority

are carrying out in order for it to be determined whether a contravention of section [F622368BA][F623, 368CB or 368D][F624, or of regulations under section [F625368BC],] has occurred or is occurring, where—

(i) the investigation relates to a matter about which they have received a complaint, or

(ii) they otherwise have reason to suspect that there has been [F626such a contravention];

[ F627(aa)

the purposes of an investigation which the appropriate regulatory authority are carrying out in order to determine whether a person who appears to them to be or to have been a provider of an on-demand programme service has failed to take an appropriate measure in relation to that service for the purpose mentioned in section 368E(4), or has failed to implement such a measure effectively, where—

(i) the investigation relates to a matter about which they have received a complaint, or

(ii) they otherwise have reason to suspect that there has been such a failure;]

(b) the purpose of ascertaining or calculating applicable qualifying revenue under section 368J.

(3) The appropriate regulatory authority may require a person who appears to them to be or to have been a provider of an on-demand programme service and to have information that they require for the purpose of securing compliance with the obligations of the United Kingdom under the Audiovisual Media Services Directive to provide them with all such information as they consider necessary for that purpose.

(4) The appropriate regulatory authority may not require the provision of information under this section unless they have given the person from whom it is required an opportunity of making representations to them about the matters appearing to them to provide grounds for making the request.

(5) The appropriate regulatory authority must not require the provision of information under this section except by a demand for the information contained in a notice served on the person from whom the information is required that describes the required information and sets out the appropriate regulatory authority’s reasons for requiring it.

(6) A person who is required to provide information under this section must provide it in such manner and within such reasonable period as may be specified by the appropriate regulatory authority in the demand for information.

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(7) Sections 368I and 368K apply in relation to a failure to comply with a demand for information imposed under this section as if that failure were a contravention of a requirement of section 368D.

(8) In this section “information” includes copies of programmes.

Textual Amendments F622 Words in s. 368O(2)(a) inserted (18.3.2010) by The Audiovisual Media Services Regulations 2010

(S.I. 2010/419), regs. 1(1), 10 F623 Words in s. 368O(2)(a) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 41(a)(i) (with Pt. 7) F624 Words in s. 368O(2)(a) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 93(7), 118(6);

S.I. 2017/765, reg. 2(y) F625 Word in s. 368O(2)(a) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 41(a)(ii) (with Pt. 7) F626 Words in s. 368O(2)(a)(ii) substituted (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 41(a)(iii) (with Pt. 7) F627 S. 368O(2)(aa) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 41(b) (with Pt. 7)

[F628368OACo-operation with member States and the European Commission

(1) OFCOM must take all necessary steps to provide such information and assistance to member States and to the European Commission as is required in order to comply with the Audiovisual Media Services Directive as it applies in relation to providers of on- demand programme services, in particular Articles 2, 3, 4 and 30a of the Directive.

(2) Where OFCOM— (a) receive a request from a member State under Article 4 of the Audiovisual

Media Services Directive relating to a provider of an on-demand programme service, and

(b) consider that the request is substantiated under that Article, they must ask the provider to comply with the rule identified in that request.]

Textual Amendments F628 S. 368OA inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062),

regs. 1(2), 42 (with Pt. 7)

Application and interpretation of Part 4A

368P Application of Part 4A in relation to the BBC

[ F629(A1)

Section 368BA (advance notification) does not apply in relation to an on-demand programme service provided or to be provided by the BBC.]

[F630(1) The following provisions do not apply to the BBC— (a) [F631section 368D(3)(za) and (zb) (duties of providers of on-demand

programme services);]

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(b) section 368F (advertising); (c) section 368G (sponsorship); (d) section 368NA (fees).]

(2) In the following provisions references to a provider of an on-demand programme service do not include references to the BBC—

(a) section [F632368C(4) (codes of conduct: food and beverage promotion and children’s programmes)];

F633(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F633(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F634(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) section 368K (suspension or restriction of service for contraventions); (f) section 368L (suspension or restriction of service for inciting crime or

disorder); F635(g) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Paragraph 2(2)(b) of Schedule 12 includes provision imposing obligations on the BBC in relation to on-demand programme services.

Textual Amendments F629 S. 368P(A1) inserted (18.3.2010) by The Audiovisual Media Services Regulations 2010 (S.I.

2010/419), regs. 1(1), 11(a) F630 S. 368P(1) substituted (18.3.2010) by The Audiovisual Media Services Regulations 2010 (S.I.

2010/419), regs. 1(1), 11(b) F631 S. 368P(1)(a) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 43(a) (with Pt. 7) F632 Words in s. 368P(2)(a) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 43(b)(i) (with Pt. 7) F633 S. 368P(2)(b)(c) omitted (18.3.2010) by virtue of The Audiovisual Media Services Regulations 2010

(S.I. 2010/419), regs. 1(1), 11(c) F634 S. 368P(2)(d) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 43(b)(ii) (with Pt. 7) F635 S. 368P(2)(g) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 43(b)(ii) (with Pt. 7)

368Q Application of Part 4A in relation to the Welsh Authority

[ F636(A1)

Section 368BA (advance notification) does not apply in relation to an on-demand programme service provided or to be provided by the Welsh Authority, other than a service that includes advertising.]

[F637(1) In section 368C (duties of appropriate regulatory authority), references to a provider of an on-demand programme service only include references to the Welsh Authority in the following subsections —

(a) subsection (1), so far as it relates to section 368CB, (b) subsection (2), and (c) subsection (5).]

(2) It is the duty of the appropriate regulatory authority—

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(a) to take such steps as appear to them best calculated to secure that the requirements of sections 368E and 368F are complied with by the Welsh Authority in relation to advertising, and

(b) to encourage the Welsh Authority to develop the codes of conduct referred to in section 368C(4) so far as it relates to advertising.

F638(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4) Section 368D(3) [F639(zb), (a), and (b) (duties of providers of on-demand programme services) do] not apply to the Welsh Authority except in relation to advertising or in relation to the inclusion of advertising in on-demand programme services provided by the Welsh Authority.

[F640(5) Section 368I (enforcement of sections 368CB and 368D) applies in relation to the Welsh Authority only in the following cases—

(a) a contravention of section 368D(1) consisting of a contravention of section 368E or 368F that relates to advertising;

(b) a contravention of section 368D(3)(za).

(5A) Section 368IA (enforcement of section 368E(4)) applies in relation to the Welsh Authority only in relation to a failure to take or implement a measure as mentioned in section 368IA(1) that relates to advertising.

(5B) Sections 368K (suspension or restriction of service for contraventions) and 368L (suspension or restriction of service for inciting crime or disorder) apply in relation to the Welsh Authority only in a case mentioned in subsection (5)(a) or (b) or subsection (5A).]

(6) Section 368O does not apply in relation to information held by the Welsh Authority except where that information is required by the appropriate regulatory authority for the purposes of—

(a) an investigation which the appropriate regulatory authority are carrying out (whether or not following receipt by them of a complaint) into a matter relating to compliance by the Welsh Authority with section 368E or 368F in relation to advertising; or

(b) securing compliance with the international obligations of the United Kingdom under the Audiovisual Media Services Directive in relation to advertising.

(7) Part 2 of Schedule 12 includes provision imposing obligations on the Welsh Authority in relation to on-demand programme services.

Textual Amendments F636 S. 368Q(A1) inserted (18.3.2010) by The Audiovisual Media Services Regulations 2010 (S.I.

2010/419), regs. 1(1), 12(1) F637 S. 368Q(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 44(a) (with Pt. 7) F638 S. 368Q(3) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 44(b) (with Pt. 7) F639 Words in s. 368Q(4) substituted (18.3.2010) by The Audiovisual Media Services Regulations 2010

(S.I. 2010/419), regs. 1(1), 12(2) F640 S. 368Q(5)-(5B) substituted for s. 368Q(5) (1.11.2020) by The Audiovisual Media Services

Regulations 2020 (S.I. 2020/1062), regs. 1(2), 44(c) (with Pt. 7)

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368R Interpretation of Part 4A

(1) In this Part— “appropriate regulatory authority” is to be construed in accordance with 368B; [F641“children’s programme” means a programme made—

(a) for a television programme service or for an on-demand programme service, and

(b) for viewing primarily by persons under the age of sixteen;] [F642“electronic cigarette” means a product that—

(a) can be used for the consumption of nicotine-containing vapour via a mouth piece, or any component of that product, including a cartridge, a tank and the device without cartridge or tank (regardless of whether the product is disposable or refillable by means of a refill container and a tank, or rechargeable with single use cartridges), and

(b) is not a medicinal product within the meaning of regulation 2 of the Human Medicines Regulations 2012 (S.I. 2012/1916) or a medical device within the meaning of regulation 2 of the Medical Devices Regulations 2002 (S.I. 2002/618);

“electronic cigarette refill container” means a receptacle that— (a) contains a nicotine-containing liquid, which can be used to refill an

electronic cigarette, and (b) is not a medicinal product within the meaning of regulation 2 of the

Human Medicines Regulations 2012 or a medical device within the meaning of regulation 2 of the Medical Devices Regulations 2002;]

[F643“prescription-only medicine” means a prescription only medicine within the meaning of regulation 5(3) of the Human Medicines Regulations 2012;] “product placement” has the meaning given by section 368H(1); “sponsorship” is to be construed in accordance with section 368G; “tobacco product” has the meaning given in section 1 of the Tobacco Advertising and Promotion Act 2002.

(2) For the purposes of this Part, a programme is included in an on-demand programme service if it is included in the range of programmes the service offers to users.

(3) For the purposes of this Part, advertising is included in an on-demand programme service if it can be viewed by a user of the service as a result of the user selecting a programme to view.

(4) The services that are to be taken for the purposes of this Part to be available for use by members of the public include any service which—

(a) is made available for use only to persons who subscribe to the service (whether for a period or in relation to a particular occasion) or who otherwise request its provision; but

(b) is a service the facility of subscribing to which, or of otherwise requesting its provision, is offered or made available to members of the public.

(5) The person, and the only person, who is to be treated for the purposes of this Part as providing an on-demand programme service is the person who has editorial responsibility for the service (see section 368A(4)).

(6) For the purposes of this Part—

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(a) the provision of a service by the BBC does not include its provision by a BBC company;

(b) the provision of a service by the Welsh Authority does not include its provision by an S4C company;

and, accordingly, control that is or is capable of being exercised by the BBC or the Welsh Authority over decisions by a BBC company or an S4C company about what is to be comprised in a service is to be disregarded for the purposes of determining who has editorial responsibility for the service.]

Textual Amendments F641 Words in s. 368R(1) substituted (16.4.2010) by The Audiovisual Media Services (Product Placement)

Regulations 2010 (S.I. 2010/831), regs. 1(1), 8 F642 Words in s. 368R(1) inserted (20.5.2016) by The Tobacco and Related Products Regulations 2016 (S.I.

2016/507), regs. 1(2), 46(5) F643 Words in s. 368R(1) substituted (14.8.2012) by The Human Medicines Regulations 2012 (S.I.

2012/1916), reg. 1(2), Sch. 34 para. 44 (with Sch. 32)

[F644PART 4B

VIDEO-SHARING PLATFORM SERVICES

Textual Amendments F644 Pt. 4B inserted (1.11.2020 for specified purposes) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(3)(b), 47 (with Pt. 7)

Preliminary

368S Meaning of “video-sharing platform service”

(1) In this Part “video-sharing platform service” means a service or dissociable section of a service which meets the conditions in subsection (2), where the provision of videos to members of the public is—

(a) the principal purpose of the service or of the dissociable section of the service, or

(b) an essential functionality of the service.

(2) The conditions in relation to the service or dissociable section of the service are— (a) it is provided by means of an electronic communications network; (b) it is provided on a commercial basis; (c) the person providing it—

(i) does not have general control over what videos are available on it, but (ii) does have general control over the manner in which videos are

organised on it (and in this sub-paragraph “organised” includes being organised automatically or by way of algorithms, in particular by displaying, tagging and sequencing); and

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(d) that person is under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.

368T The appropriate regulatory authority

(1) OFCOM may designate any body corporate to be, to the extent provided by the designation, the appropriate regulatory authority for the purposes of any provision of this Part, subject to subsection (9).

(2) To the extent that no body is designated for a purpose, OFCOM is the appropriate regulatory authority for that purpose.

(3) Where a body is designated for a purpose, OFCOM may act as the appropriate regulatory authority for that purpose concurrently with or in place of that body.

(4) OFCOM may provide a designated body with assistance in connection with any of the functions of the body under this Part.

(5) A designation may in particular— (a) provide for a body to be the appropriate regulatory authority in relation to

video-sharing platform services of a specified description; (b) provide that a function of the appropriate regulatory authority is exercisable

by the designated body— (i) to such extent as may be specified;

(ii) either generally or in such circumstances as may be specified; and (iii) either unconditionally or subject to such conditions as may be

specified.

(6) The conditions that may be specified pursuant to subsection (5)(b)(iii) include a condition to the effect that a function may, generally or in specified circumstances, be exercised by the body only with the agreement of OFCOM.

(7) A designation has effect for such period as may be specified and may be revoked by OFCOM at any time.

(8) OFCOM must publish any designation in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to be affected by it.

(9) OFCOM may not designate a body unless, as respects that designation, they are satisfied that the body—

(a) is a fit and proper body to be designated; (b) has consented to being designated; (c) has access to financial resources that are adequate to ensure the effective

performance of its functions as the appropriate regulatory authority; (e) is sufficiently independent of providers of video-sharing platform services;

and (f) will, in performing any function to which the designation relates, have regard

in all cases— (i) to the principles under which regulatory activities should be

transparent, accountable, proportionate, consistent and targeted only at cases in which action is needed; and

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(ii) to such of the matters mentioned in section 3(4) as appear to the body to be relevant in the circumstances.

(10) Subject to any enactment or rule of law restricting the disclosure or use of information by OFCOM or by a designated body—

(a) a designated body may supply information to another designated body for use by that other body in connection with any of its functions as the appropriate regulatory authority;

(b) a designated body may supply information to OFCOM for use by OFCOM in connection with any of their functions under this Part;

(c) OFCOM may supply information to a designated body for use by that body in connection with any of its functions as the appropriate regulatory authority;

(d) OFCOM may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of OFCOM as the appropriate regulatory authority;

(e) a designated body may supply information to the video works authority, within the meaning of section 368E, for use by the video works authority in connection with functions of the designated body as the appropriate regulatory authority.

(11) In carrying out their functions as the appropriate regulatory authority, a designated body may carry out, commission or support (financially or otherwise) research.

(12) In this section— “designation” means a designation under this section and cognate

expressions are to be construed accordingly; “specified” means specified in a designation.

List of providers

368U Maintenance of list of providers

(1) OFCOM must establish and maintain an up to date list of persons providing a video- sharing platform service.

(2) The list must indicate in respect of each person which of the criteria set out in paragraphs 1 to 4 of Article 28a of the Audiovisual Media Services Directive is the basis for the decision that they are under the jurisdiction of the United Kingdom (see section 368S(2)(d)).

(3) OFCOM must notify the European Commission of the contents of the list and of any updates to it.

Notification by providers

368V Advance notification to appropriate regulatory authority

(1) A person must not provide a video-sharing platform service unless, before beginning to provide it, that person has given a notification to the appropriate regulatory authority of the person’s intention to provide that service.

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(2) A person who has given a notification for the purposes of subsection (1) must, before—

(a) providing the notified service with any significant differences; or (b) ceasing to provide it,

give a notification to the appropriate regulatory authority of the differences or (as the case may be) of the intention to cease to provide the service.

(3) A notification for the purposes of this section must— (a) be sent to the appropriate regulatory authority in such manner as the authority

may require; and (b) contain all such information as the authority may require.

(4) In this section, “significant differences” includes any change that may affect the determination of jurisdiction in accordance with paragraphs 1 to 4 of Article 28a of the Audiovisual Media Services Directive.

368W Enforcement of section 368V

(1) Where the appropriate regulatory authority determine that a provider of a video- sharing platform service has contravened section 368V, they may do one or both of the following—

(a) give the provider an enforcement notification under this section; (b) impose a financial penalty on the provider in accordance with section 368Z4.

(2) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a contravention of section 368V has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.

(3) An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes a requirement on the provider to take all such steps for remedying the contravention of section 368V as may be specified in the notification.

(4) An enforcement notification must— (a) include reasons for the appropriate regulatory authority’s decision to give the

enforcement notification, and (b) fix a reasonable period for taking the steps required by the notification.

(5) It is the duty of a person to whom an enforcement notification has been given to comply with it.

(6) That duty is enforceable in civil proceedings by the appropriate regulatory authority— (a) for an injunction; (b) for specific performance of a statutory duty under section 45 of the Court of

Session Act 1988; or (c) for any other appropriate remedy or relief.

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Duties of the appropriate regulatory authority

368X Duties of the appropriate regulatory authority

(1) It is the duty of the appropriate regulatory authority to take such steps as appear to them best calculated to secure that every provider of a video-sharing platform service complies with the requirements of sections 368Y and 368Z1(6) and (7).

(2) The appropriate regulatory authority must encourage providers of video-sharing platform services to develop codes of conduct regarding standards concerning the appropriate promotion of food or beverages in audiovisual commercial communications which are included in, or accompany, videos containing material which is likely to appeal to children.

(3) The appropriate regulatory authority must draw up, and from time to time review and revise, guidance for providers of video-sharing platform services concerning the measures set out in Schedule 15A which may be appropriate for the purposes mentioned in section 368Z1(1), and the implementation of such measures.

Duties of service providers

368Y Duties of service providers

(1) The provider of a video-sharing platform service must ensure that the service complies with the requirements of section 368Z.

(2) The provider of a video-sharing platform service (“P”) must publish the following information on a publicly accessible part of that service’s website—

(a) P’s name; (b) P’s address; (c) P’s electronic address; (d) a statement that P is under the jurisdiction of the United Kingdom for the

purposes of the Audiovisual Media Services Directive; (e) the name, address and electronic address of any body which is the appropriate

regulatory authority for any purpose in relation to P or the video-sharing platform service that P provides.

(3) The provider of a video-sharing platform service must— (a) pay to the appropriate regulatory authority such fee as that authority may

require under section 368Z9; (b) comply with any requirement under section 368Z10; (c) co-operate fully with the appropriate regulatory authority for any purpose

mentioned in section 368Z10(3).

(4) In this section “electronic address” means an electronic address to which electronic communications may be sent, and includes any number or address used for the purposes of receiving such communications.

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368Z Advertising etc controlled by service providers

(1) In this section, references to audiovisual commercial communications, in relation to a video-sharing platform service, are to audiovisual commercial communications that are marketed, sold or arranged by the person providing that service.

(2) Audiovisual commercial communications for the following products are prohibited in a video-sharing platform service—

(a) cigarettes or other tobacco products; (b) electronic cigarettes or electronic cigarette refill containers; (c) any prescription-only medicine.

(3) Audiovisual commercial communications for alcoholic drinks are only permitted in a video-sharing platform service if—

(a) they are not aimed specifically at persons under the age of 18, and (b) they do not encourage immoderate consumption of alcohol.

(4) Audiovisual commercial communications included in a video-sharing platform service—

(a) must be readily recognisable as such, and (b) must not use techniques which exploit the possibility of conveying a message

subliminally or surreptitiously.

(5) Audiovisual commercial communications included in a video-sharing platform service must not—

(a) prejudice respect for human dignity; (b) include or promote discrimination based on sex, racial or ethnic origin,

nationality, religion or belief, disability, age or sexual orientation; (c) encourage behaviour prejudicial to health or safety; (d) encourage behaviour grossly prejudicial to the protection of the environment; (e) cause physical, mental or moral detriment to persons under the age of 18; (f) directly exhort such persons to purchase or rent goods or services in a manner

which exploits their inexperience or credulity; (g) directly encourage such persons to persuade their parents or others to purchase

or rent goods or services; (h) exploit the trust of such persons in parents, teachers or others; or (i) unreasonably show such persons in dangerous situations.

(6) In this section— “electronic cigarette” means a product that—

(a) can be used for the consumption of nicotine-containing vapour via a mouth piece, or any component of that product, including a cartridge, a tank and the device without cartridge or tank (regardless of whether the product is disposable or refillable by means of a refill container and a tank, or rechargeable with single use cartridges), and

(b) is not a medicinal product within the meaning of regulation 2 of the Human Medicines Regulations 2012 (S.I. 2012/1916) or a medical device within the meaning of regulation 2 of the Medical Devices Regulations 2002 (S.I. 2002/618);

“electronic cigarette refill container” means a receptacle that—

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(a) contains a nicotine-containing liquid, which can be used to refill an electronic cigarette, and

(b) is not a medicinal product within the meaning of regulation 2 of the Human Medicines Regulations 2012 or a medical device within the meaning of regulation 2 of the Medical Devices Regulations 2002;

“prescription-only medicine” means a prescription only medicine within the meaning of regulation 5(3) of the Human Medicines Regulations 2012;

“tobacco product” has the meaning given in section 1 of the Tobacco Advertising and Promotion Act 2002.

368Z1 Duty to take appropriate measures

(1) A person who provides a video-sharing platform service must, in relation to that service, take such of the measures set out in Schedule 15A as are appropriate for the purposes of—

(a) protecting persons under the age of 18 from videos and audiovisual commercial communications containing restricted material;

(b) protecting the general public from videos and audiovisual commercial communications containing relevant harmful material; and

(c) in relation to audiovisual commercial communications that are not marketed, sold or arranged by the person providing the service, ensuring that—

(i) audiovisual commercial communications for a product mentioned in section 368Z(2) are not included in the service,

(ii) audiovisual commercial communications for alcoholic drinks are only included in the service if they meet the requirements in section 368Z(3), (4) and (5), and

(iii) audiovisual commercial communications for anything else are only included in the service if they meet the requirements in section 368Z(4) and (5).

(2) Where a provider of a video-sharing platform service takes a measure set out in Schedule 15A, the provider must implement the measure in such a way as to carry out the purpose or purposes mentioned in subsection (1) for which the measure is appropriate.

(3) The requirement in subsection (2) is not to be regarded as imposing on a provider of a video-sharing platform service a general obligation of the description given in Article 15(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market.

(4) Whether a measure is appropriate for any of the purposes mentioned in subsection (1) must be determined by whether it is practicable and proportionate for the measure to be taken, taking into account—

(a) the size and nature of the video-sharing platform service; (b) the nature of the material in question; (c) the harm the material in question may cause; (d) the characteristics of the category of persons to be protected; (e) in relation to audiovisual commercial communications that are not marketed,

sold or arranged by a person providing a video-sharing platform service, the fact that the provider exercises limited control over such communications;

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(f) the rights and legitimate interests at stake, including those of the person providing the video-sharing platform service and the persons having created or uploaded the material, as well as the general public interest;

(g) any other measures which have been taken, or are to be taken.

(5) When determining whether a measure is appropriate for the purpose mentioned in subsection (1)(a), the principle that restricted material that has the most potential to harm the physical, mental or moral development of persons under the age of 18 must be subject to the strictest access control measures must be applied.

(6) Where a person uploading a video to a video-sharing platform service declares that the video contains an audiovisual commercial communication, or the provider of the service knows that such a video contains an audiovisual commercial communication, the provider must clearly inform viewers that the video contains an audiovisual commercial communication.

(7) A person who provides a video-sharing platform service must provide for an impartial out-of-court procedure for the resolution of any dispute between a person using the service and the provider relating to—

(a) the implementation of any measure set out in Schedule 15A, or (b) a decision to take, or not to take, any such measure,

but the provision of or use of this procedure must not affect the ability of a person using the service to bring a claim in civil proceedings.

(8) In this section— “access control measures” means measures designed to control whether

or how individuals are able to access videos or audiovisual commercial communications included in a video-sharing platform service;

“relevant harmful material” means— (a) material referred to in section 368E(1), or (b) material referred to in section 368E(3)(za) (read as if the reference to

an on-demand programme service were to a video-sharing platform service);

“restricted material” means— (a) material which is prohibited material within the meaning of section 368E

by virtue of falling within paragraph (a) or (b) of subsection (3) of that section, or

(b) specially restricted material within the meaning of section 368E (see subsection (5) of that section).

Enforcement

368Z2 Enforcement of sections 368Y and 368Z1(6) and (7)

(1) Where the appropriate regulatory authority determine that a provider of a video- sharing platform service is contravening or has contravened section 368Y or 368Z1(6) or (7) they may do one or both of the following—

(a) give the provider an enforcement notification under this section; (b) impose a financial penalty on the provider in accordance with section 368Z4.

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(2) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a contravention of section 368Y or 368Z1(6) or (7) is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent contravention.

(3) An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes requirements on the provider to take such steps for complying with section 368Y or 368Z1(6) or (7) and for remedying the consequences of the contravention as may be specified in the notification.

(4) The requirements specified in an enforcement notification may in particular include requirements to do one or more of the following—

(a) cease providing or restrict access to— (i) a specified video, or

(ii) videos of a specified description; (b) cease showing or restrict access to—

(i) a specified audiovisual commercial communication, or (ii) audiovisual commercial communications of a specified description;

(c) provide additional information about the content of a specified video or videos of a specified description prior to the selection of that video or a video of that description by an individual for viewing;

(d) provide an out-of-court procedure of a specified description for resolving disputes between the provider and a person using the service;

(e) show an audiovisual commercial communication marketed, sold or arranged by the provider on the service only with specified modifications; or

(f) publish a statement of the findings of the appropriate regulatory authority in the form and place and for the time period specified.

(5) An enforcement notification must— (a) include reasons for the appropriate regulatory authority’s decision to give the

enforcement notification, and (b) fix a reasonable period for taking the steps required by the notification.

(6) Where a person is required by an enforcement notification to publish a statement of findings, the person may publish with the statement of findings a statement that it is published in pursuance of the enforcement notification.

(7) It is the duty of a person to whom an enforcement notification has been given to comply with it.

(8) That duty is enforceable in civil proceedings by the appropriate regulatory authority— (a) for an injunction; (b) for specific performance of a statutory duty under section 45 of the Court of

Session Act 1988; or (c) for any other appropriate remedy or relief.

(9) If a person to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification, the appropriate regulatory authority may impose a financial penalty on that person in accordance with section 368Z4.

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368Z3 Enforcement of section 368Z1(1) and (2)

(1) Where the appropriate regulatory authority determine that a provider of a video- sharing platform service—

(a) has failed to take a measure set out in Schedule 15A which the authority consider to be appropriate in relation to that service for any of the purposes mentioned in subsection (1) of section 368Z1, or

(b) has failed to comply with subsection (2) of that section, the authority may take one or both of the actions mentioned in subsection (2).

(2) The actions are— (a) give the provider an enforcement notification under this section; (b) impose a financial penalty on the provider in accordance with section 368Z4.

(3) The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless there are reasonable grounds for believing that a failure mentioned in paragraph (a) or (b) of subsection (1) is occurring or has occurred and they have allowed the provider an opportunity to make representations about that apparent failure.

(4) An enforcement notification under this section is a notification which specifies the determination made as mentioned in subsection (1) and imposes requirements on the provider to take such steps for complying with section 368Z1(1) or (2) and for remedying the failure as may be specified in the notification.

(5) The requirements specified in an enforcement notification may in particular include requirements to do one or more of the following—

(a) cease providing or restrict access to— (i) a specified video, or

(ii) videos of a specified description; (b) cease showing or restrict access to—

(i) a specified audiovisual commercial communication, or (ii) audiovisual commercial communications of a specified description;

(c) provide additional information about the content of a specified video or videos of a specified description prior to the selection of that video or a video of that description by an individual for viewing;

(d) provide additional information about the content of a specified audiovisual commercial communication or audiovisual commercial communications of a specified description included in or accompanying a video prior to the selection of that video by an individual for viewing;

(e) take a specified measure set out in Schedule 15A that the appropriate regulatory authority consider to be appropriate for any of the purposes mentioned in section 368Z1(1);

(f) make specified changes to the way in which a provider implements a measure set out in Schedule 15A;

(g) show a video or an audiovisual commercial communication on the service only with specified modifications; or

(h) publish a statement of the findings of the appropriate regulatory authority in the form and place and for the time period specified.

(6) An enforcement notification must—

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(a) include reasons for the appropriate regulatory authority’s decision to give the enforcement notification, and

(b) fix a reasonable period for taking the steps required by the notification.

(7) Where a person is required by an enforcement notification to publish a statement of findings, the person may publish with the statement of findings a statement that it is published in pursuance of the enforcement notification.

(8) It is the duty of a person to whom an enforcement notification has been given to comply with it.

(9) That duty is enforceable in civil proceedings by the appropriate regulatory authority— (a) for an injunction; (b) for specific performance of a statutory duty under section 45 of the Court of

Session Act 1988; or (c) for any other appropriate remedy or relief.

(10) If a person to whom an enforcement notification has been given does not comply with it within the period fixed by the appropriate regulatory authority in that enforcement notification, the appropriate regulatory authority may impose a financial penalty on that person in accordance with section 368Z4.

368Z4 Financial penalties

(1) The amount of a penalty imposed on a provider of a video-sharing platform service under section 368W, 368Z2 or 368Z3 is to be such amount not exceeding 5% of the provider’s applicable qualifying revenue or £250,000, whichever is the greater amount, as the appropriate regulatory authority determine to be—

(a) appropriate; and (b) proportionate to the contravention or failure in respect of which it is imposed.

(2) In determining the amount of a penalty under subsection (1) the appropriate regulatory authority must have regard to any statement published by OFCOM under section 392 (guidelines to be followed in determining amount of penalties).

(3) The “applicable qualifying revenue”, in relation to a provider, means— (a) the qualifying revenue for the provider’s last complete accounting period

falling within the period during which the provider has been providing the service to which the contravention or failure relates; or

(b) in relation to a person whose first complete accounting period falling within that period has not ended when the penalty is imposed, the amount that the appropriate regulatory authority estimate to be the qualifying revenue for that period.

(4) For the purposes of subsection (3) the “qualifying revenue” for an accounting period consists of the aggregate of all the amounts received or to be received by the provider of the service to which the contravention or failure relates or by any connected person in the accounting period—

(a) for the inclusion in that service of audiovisual commercial communications; (b) in respect of charges made in that period for the provision of videos by that

service; and (c) which in any other way arise from the provision of that service.

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(5) For the purposes of subsection (4), “connected” has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act.

(6) A financial penalty imposed under this section must be paid into the appropriate Consolidated Fund.

(7) For the purposes of subsections (3) and (6)— (a) the amount of a person’s qualifying revenue for an accounting period, or (b) the amount of any payment to be made into the appropriate Consolidated Fund

by any person in respect of any such revenue, is, in the event of a disagreement between the appropriate regulatory authority and that person, the amount determined by the appropriate regulatory authority.

(8) The references in this section to the payment of an amount into the appropriate Consolidated Fund—

(a) in the case of an amount received in respect of matters appearing to OFCOM to have no connection with Northern Ireland, is a reference to the payment of the amount into the Consolidated Fund of the United Kingdom;

(b) in the case of an amount received in respect of matters appearing to OFCOM to have a connection with Northern Ireland but no connection with the rest of the United Kingdom, is a reference to the payment of the amount into the Consolidated Fund of Northern Ireland; and

(c) in any other case, is a reference to the payment of the amount, in such proportions as OFCOM consider appropriate, into each of those Funds.

Suspension or restriction of service

368Z5 Suspension or restriction of service for contraventions or failures

(1) The appropriate regulatory authority must serve a notice under subsection (2) on a provider of a video-sharing platform service if they are satisfied—

(a) that the provider— (i) has contravened section 368V, 368Y or 368Z1(6) or (7),

(ii) has failed to take a measure which the authority consider to be appropriate in relation to that service for any of the purposes mentioned in section 368Z1(1), or

(iii) has failed to implement such a measure as mentioned in section 368Z1(2);

(b) that the imposition of one or more financial penalties or enforcement notifications under section 368W, 368Z2 or 368Z3 has not resulted in the remedying of the contravention or failure in question; and

(c) that the giving of a direction under this section would be appropriate and proportionate to the seriousness of the contravention or failure.

(2) A notice under this subsection must— (a) state that the appropriate regulatory authority are satisfied as mentioned in

subsection (1); (b) state the reasons why they are satisfied as mentioned in subsection (1); (c) state that the appropriate regulatory authority will give a direction under this

section unless the provider takes, within a period specified in the notice, such

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steps to remedy the contravention or failure within subsection (1)(a) as are so specified;

(d) specify any conditions that the appropriate regulatory authority propose to impose in the proposed direction under section 368Z7(5)(b); and

(e) inform the provider that the provider has the right to make representations to the appropriate regulatory authority about the matters appearing to the authority to provide grounds for giving the proposed direction within the period specified for the purposes of paragraph (c).

(3) If, after considering any representations made to them by the provider within that period, the appropriate regulatory authority are satisfied that the provider has failed to take the steps specified in the notice for remedying the contravention or failure and that it is necessary in the public interest to give a direction under this section, the appropriate regulatory authority must give such of the following as appears to them appropriate and proportionate as mentioned in subsection (1)(c)—

(a) a direction that the entitlement of the provider to provide a video-sharing platform service is suspended (either generally or in relation to a particular service);

(b) a direction that that entitlement is restricted in the respects set out in the direction.

368Z6 Suspension or restriction of service for inciting crime or disorder

(1) The appropriate regulatory authority must serve a notice under subsection (2) on a provider of a video-sharing platform service if they are satisfied—

(a) that— (i) the service has failed to comply with a requirement of section 368Z

and that accordingly the provider has contravened section 368Y(1), (ii) the provider has failed to take a measure which the authority consider

to be appropriate in relation to that service for any of the purposes mentioned in section 368Z1(1), or

(iii) the provider has failed to implement such a measure as mentioned in section 368Z1(2);

(b) that the failure is due to, or has resulted in, the inclusion in the service of material likely to encourage or to incite the commission of crime, or to lead to disorder; and

(c) that the contravention or failure is such as to justify the giving of a direction under this section.

(2) A notice under this subsection must— (a) state that the appropriate regulatory authority are satisfied as mentioned in

subsection (1); (b) give details about the matters which, in their opinion, constitute the

contravention or failure in question; (c) specify the effect of the notice in accordance with subsection (3); (d) state that the appropriate regulatory authority may give a direction under this

section after the end of the period of 21 days beginning with the day on which the notice is served on the provider; and

(e) inform the provider of the provider’s right to make representations to the appropriate regulatory authority within that period about the matters

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appearing to the appropriate regulatory authority to provide grounds for giving a direction under this section.

(3) A notice under subsection (2) has the effect specified under subsection (2)(c), which may be either—

(a) that the entitlement of the provider to provide a video-sharing platform service is suspended (either generally or in relation to a particular service), or

(b) that that entitlement is restricted in the respects set out in the notice.

(4) The suspension or restriction has effect as from the time when the notice is served on the provider until either—

(a) a direction given under this section takes effect; or (b) the appropriate regulatory authority decide not to give such a direction.

(5) If, after considering any representations made to them by the provider within the period mentioned in subsection (2)(d), the appropriate regulatory authority are satisfied that it is necessary in the public interest to give a direction under this section, they must give such of the following as appears to them justified as mentioned in subsection (1)(c)—

(a) a direction that the entitlement of the provider to provide a video-sharing platform service is suspended (either generally or in relation to a particular service);

(b) a direction that that entitlement is restricted in the respects set out in the direction.

368Z7 Supplementary provision about directions

(1) This section applies to a direction given to a provider under section 368Z5 or 368Z6.

(2) A direction must specify the service to which it relates or specify that it relates to any video-sharing platform service provided or to be provided by the provider.

(3) A direction, except so far as it otherwise provides, takes effect for an indefinite period beginning with the time at which it is notified to the provider.

(4) A direction under section 368Z6 must specify a time for it to take effect, and that time must not fall before the end of 28 days beginning with the day on which the direction is notified to the provider.

(5) A direction— (a) may provide for the effect of a suspension or restriction to be postponed by

specifying that it takes effect only at a time determined by or in accordance with the terms of the direction; and

(b) in connection with the suspension or restriction contained in the direction or with the postponement of its effect, may impose such conditions on the provider as appear to the appropriate regulatory authority to be appropriate for the purpose of protecting individuals using the provider’s service.

(6) If the appropriate regulatory authority consider it appropriate to do so (whether or not in consequence of representations or proposals made to them), they may revoke a direction or modify its conditions—

(a) with effect from such time as they may direct; (b) subject to compliance with such requirements as they may specify; and (c) to such extent and in relation to such services as they may determine.

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368Z8 Enforcement of directions under section 368Z5 or 368Z6

(1) A person (“P”) is guilty of an offence if P provides a video-sharing platform service— (a) while P’s entitlement to do so is suspended by a direction under section 368Z5

or 368Z6, or (b) in contravention of a restriction contained in such a direction.

(2) A person guilty of an offence under this section is liable— (a) on summary conviction—

(i) in England and Wales, to a fine; (ii) in Scotland, to a fine not exceeding £5,000;

(iii) in Northern Ireland, to a fine not exceeding the statutory maximum; (b) on conviction on indictment, to a fine.

Fees

368Z9 Fees

(1) In this section “the authority” means each of these— (a) the appropriate regulatory authority; (b) (where they are not the appropriate regulatory authority) OFCOM.

(2) The authority may require a provider of a video-sharing platform service to pay them a fee.

(3) The authority must be satisfied that the amount of any fee required under subsection (2) —

(a) represents the appropriate contribution of the provider towards meeting the likely costs described in subsection (5)(a), and

(b) is justifiable and proportionate having regard to the provider who will be required to pay it and the functions in respect of which it is imposed.

(4) A different fee may be required in relation to different cases or circumstances.

(5) The authority must, for each financial year— (a) prepare such estimate as it is practicable for them to make of the likely costs

of carrying out the relevant functions during that year; (b) ensure that the aggregate amount of the fees that are required to be paid to

them under subsection (2) during that year is sufficient to enable them to meet, but not exceed, the costs estimated under paragraph (a);

(c) consult in such manner as they consider appropriate the providers likely to be required to pay them a fee under subsection (2) during that year;

(d) publish in such manner as they consider appropriate the amount of the fees they will require providers to pay to them under subsection (2) during that year.

(6) As soon as reasonably practicable after the end of the financial year, the authority must publish a statement setting out, for that year—

(a) the aggregate amount received by them during that year in respect of fees required to be paid under subsection (2);

(b) the aggregate amount outstanding and likely to be paid or recovered in respect of fees that were required to be so paid under subsection (2); and

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(c) the costs to them of carrying out the relevant functions during that year.

(7) Any deficit or surplus shown (after applying this subsection for all previous years) by a statement under subsection (6) is to be—

(a) carried forward; and (b) taken into account in determining what is required to satisfy the requirement

imposed by virtue of subsection (5)(b) in relation to the following year.

(8) The authority may repay to a person some or all of a fee paid to them by a person under subsection (2) if—

(a) that person has ceased to provide a video-sharing platform service at some time during the period to which the fee relates;

(b) before ceasing to provide that service, that person gave the appropriate regulatory authority a notification under section 368V(2); and

(c) that person did not cease to provide the service following a direction given by the appropriate regulatory authority under section 368Z5 or 368Z6.

(9) The authority may make arrangements with any body designated under section 368T for that body to provide the authority with assistance in connection with the collection or repayment of fees required by them under this section.

(10) For the purposes of this section, the authority’s costs of carrying out the relevant functions during a financial year include their costs of preparing to carry out the relevant functions incurred during that year.

(11) In this section “relevant functions” means— (a) in relation to the appropriate regulatory authority, their functions as the

appropriate regulatory authority; (b) in relation to OFCOM (where they are not the appropriate regulatory

authority), their other functions under this Part.

(12) In this section “financial year” means a period of 12 months ending with 31 March.

(13) The authority may not charge a fee for any period in relation to a financial year which begins before 1 April 2022.

Information and reports

368Z10 Power to demand information

(1) The appropriate regulatory authority may require a person who appears to be or to have been a provider of a video-sharing platform service to provide them with all such information relating to that service as the authority require for the purpose of carrying out their functions under this Part.

(2) The appropriate regulatory authority may also require a person who appears to have or to be able to generate information that the authority reasonably require for the purpose of carrying out their functions under this Part to provide them with that information.

(3) The information that may be required by the appropriate regulatory authority under subsection (1) or (2) includes, in particular, information that they require for any one or more of the following purposes—

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(a) the purpose of determining whether a person falls under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive;

(b) the purpose of determining whether there has been any change of circumstance that may affect a determination mentioned in paragraph (a);

(c) the purpose of determining the appropriate fee that a provider of a video- sharing platform service is required to pay under section 368Z9;

(d) the purpose of assessing compliance with section 368V, 368Y or 368Z1(1), (2), (6) or (7);

(e) the purpose of determining which of the measures set out in Schedule 15A the authority consider to be appropriate in relation to a video-sharing platform service for any of the purposes mentioned in section 368Z1(1);

(f) the purposes of an investigation being carried out by the authority to determine—

(i) whether a contravention of section 368V, 368Y or 368Z1(6) or (7) has occurred or is occurring,

(ii) whether a provider of a video-sharing platform service has failed to take a measure set out in Schedule 15A which the authority consider to be appropriate in relation to that service for any of the purposes mentioned in subsection (1) of section 368Z1, or

(iii) whether a provider of a video-sharing platform service has failed to comply with subsection (2) of section 368Z1;

(g) the purpose of monitoring which of the measures set out in Schedule 15A are taken by providers of video-sharing platform services for the purposes mentioned in section 368Z1(1), and how such measures are implemented;

(h) the purpose of producing a report under section 368Z11; (i) the purpose of ascertaining or calculating applicable qualifying revenue under

section 368Z4.

(4) A requirement imposed on a person to provide information under this section includes a requirement that the person must, if necessary, generate the information.

(5) The appropriate regulatory authority may only require the provision of information under this section if—

(a) the demand for the information is contained in a notice served on the person from whom the information is required that describes the required information and sets out the purpose or purposes for which it is required,

(b) the demand for the information is proportionate to the use to which the information is to be put in the carrying out of the authority’s functions, and

(c) the authority have given the person from whom the information is required the opportunity to make representations to the authority concerning the demand.

(6) A person who is required to provide information under this section must provide it in such manner and form and within such reasonable period as may be specified by the authority in the demand for information.

(7) Sections 368Z2 and 368Z5 apply in relation to a failure by a provider of a video- sharing platform service to comply with a demand for information under this section as if that failure were a contravention of section 368Y.

(8) Section 368Z2 applies in relation to a failure by a person other than a provider of a video-sharing platform service to comply with a demand for information under this

494 Communications Act 2003 (c. 21) PART 4B – VIDEO-SHARING PLATFORM SERVICES

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section as if that failure were a contravention of section 368Y, but where section 368Z2 applies by virtue of this subsection—

(a) references in that section and in section 368Z4 to a provider of a video-sharing platform service are to be read as references to the person who has failed to comply with the demand for information, and

(b) section 368Z4(1) is to apply as if, for the words “5% of the provider’s applicable qualifying revenue or £250,000, whichever is the greater amount,” there were substituted “£250,000”.

(9) In this section “information” includes technical information and material such as videos, audiovisual commercial communications, screenshots and archived material.

368Z11 Reports by OFCOM

(1) OFCOM may from time to time produce and publish reports about— (a) the steps taken by providers of video-sharing platform services to comply with

sections 368Y and 368Z1(6) and (7); (b) the measures taken by providers for the purposes mentioned in

section 368Z1(1), and the ways in which such measures are implemented so as to carry out those purposes;

(c) the systems adopted by providers for the reporting, flagging or rating of material on the service and the handling of complaints or the resolution of disputes relating to the service.

(2) In publishing a report under this section, OFCOM must have regard to the need to exclude from publication, so far as that is practicable, the matters which are confidential in accordance with subsections (3) and (4).

(3) A matter is confidential under this subsection 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.

(4) A matter is confidential under this subsection 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.

368Z12 Co-operation with member States and the European Commission

OFCOM must take all necessary steps to provide such information and assistance to member States and to the European Commission as is required in order to comply with the Audiovisual Media Services Directive as it applies in relation to providers of video-sharing platform services.

Interpretation of Part 4B

368Z13 Interpretation of Part 4B

In this Part—

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“appropriate regulatory authority” is to be construed in accordance with section 368T;

“audiovisual commercial communication” means a set of moving or still images, or of legible text, or of a combination of those things (with or without sounds), which—

(a) is designed to promote (directly or indirectly) the goods, services or image of a person pursuing an economic activity, and

(b) accompanies or is included in a video in return for payment, or for other valuable consideration, or for self-promotional purposes,

and forms of audiovisual commercial communication include advertising, sponsorship, teleshopping and product placement;

“product placement” means the inclusion of, or of a reference to, a product, a service or a trade mark within a video in return for payment or for other valuable consideration;

“sponsorship” means any contribution made by a person not engaged in providing video-sharing platform services to the financing of video-sharing platform services or videos with a view to promoting the name, trade mark, image, activities, services or products of that person or another person;

“teleshopping” means direct offers broadcast to the public for the supply of goods, services, immovable property, rights or obligations, in return for payment;

“trade mark”, in relation to a person, includes any image (such as a logo) or sound commonly associated with that person, or that person’s products or services;

“video” means a set of moving or still images, or of legible text, or of a combination of those things (with or without sounds), which constitutes an individual item irrespective of its length (and which is not an audiovisual commercial communication);

“video-sharing platform service” has the meaning given by section 368S.]

PART 5

COMPETITION IN COMMUNICATIONS MARKETS

CHAPTER 1

FUNCTIONS OF OFCOM UNDER COMPETITION LEGISLATION

369 Matters in relation to which OFCOM have competition functions

(1) In this Chapter references to communications matters are references to any one or more of the following—

(a) the provision of electronic communications networks; (b) the provision of electronic communications services; (c) the provision or making available of services or facilities which are provided

or made available—

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(i) by means of, or in association with the provision (by the same person or another) of, an electronic communications network or electronic communications service; or

(ii) for the purpose of facilitating the use of any such network or service (whether provided by the same person or another);

(d) apparatus used for providing or making available anything mentioned in the preceding paragraphs;

(e) broadcasting and related matters. [F645(f) the provision of postal services.]

(2) The Secretary of State may by order make such amendments of subsection (1) as he may consider appropriate for the purpose of modifying the description of activities in respect of which any of the provisions of this Part—

(a) confer functions on OFCOM under Part 1 of the Competition Act 1998 (c. 41) or relate to the carrying out by OFCOM of those functions; or

(b) confer functions on OFCOM under Part 4 of the Enterprise Act 2002 (c. 40) or relate to the carrying out by OFCOM of those functions.

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

Textual Amendments F645 S. 369(1)(f) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 62; S.I.

2011/2329, art. 3

Commencement Information I532 S. 369(1)(a)-(d)(2)(3) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1),

Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I533 S. 369(1)(a)-(d) (2) (3) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art.

3(1), Sch. 1 (with art. 11) I534 S. 369(1)(e) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

370 OFCOM’s functions under Part 4 of the Enterprise Act 2002

(1) The functions to which subsection (2) applies shall be concurrent functions of OFCOM and the [F646Competition and Markets Authority (referred to in this Part as “the CMA”)] .

(2) This subsection applies to the functions of the [F647CMA] under Part 4 of the Enterprise Act 2002 (market investigations) (other than sections 166 [F648, 171 and 174E] ) so far as [F649those functions—

(a) are exercisable by the CMA Board (within the meaning of Schedule 4 to the Enterprise and Regulatory Reform Act 2013), and

(b) relate to] commercial activities connected with communications matters.

(3) So far as necessary for the purposes of, or in connection with, subsections [F650(1) and (2)—

(a) references] in Part 4 of the Enterprise Act 2002 to the [F651CMA] (including references in provisions of that Act applied by that Part) shall be construed as

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including references to OFCOM [F652(except in sections 166, 171 and 174E and where the context otherwise requires);

(b) references in that Part to the CMA carrying out functions under section 5 of the Enterprise Act 2002 are to be construed as including references to OFCOM exercising powers under section 1(3) of this Act to obtain, compile and keep under review information about matters relating to the carrying out of its functions.]

[F653(3A) Section 130A of the Enterprise Act 2002 is to have effect in its application in relation to OFCOM by virtue of subsections (1) and (2)—

(a) as if for subsection (1) of that section there were substituted—

“(1) Where the Office of Communications— (a) is proposing to fulfil its duties under section 3(1) of the

Communications Act 2003 by obtaining, compiling and keeping under review information in relation to a matter for the purposes mentioned in subsection (2), and

(b) considers that the matter is one in respect of which it would be appropriate for it to exercise its powers under section 174 (investigation) in connection with deciding whether to make a reference under section 131,

the Office of Communications must publish a notice under this section (referred to in this Part as a “market study notice”).”, and

(b) as if in subsection (2)(a) of that section, for “the acquisition or supply of goods or services of one or more than one description in the United Kingdom” there were substituted “commercial activities connected with communications matters (within the meaning given by section 369(1) of the Communications Act 2003)”.]

(4) In [F654subsections (2) and (3A) the references] to activities connected with communications matters, so far as [F655they are references] to activities connected with any apparatus falling within paragraph (d) of section 369(1), [F656include] a reference to—

(a) the supply and export of any such apparatus; and (b) the production or acquisition of any such apparatus for supply or export.

(5) Before the [F657CMA] or OFCOM first exercises in relation to any matter functions which are exercisable concurrently by virtue of this section, that person shall consult the other.

(6) Neither the [F657CMA] nor OFCOM shall exercise in relation to any matter functions which are exercisable concurrently by virtue of this section if functions which are so exercisable have been exercised in relation to that matter by the other.

(7) It shall be the duty of OFCOM, for the purpose of assisting [F658a CMA group] in carrying out an investigation on a [F659market investigation reference made by OFCOM (under section 131 of the Enterprise Act 2002)] by virtue of subsection (1), to give to the [F660group]

(a) any information which is in OFCOM’s possession and relates to matters falling within the scope of the investigation and—

(i) is requested by the [F660group] for that purpose, or (ii) is information which, in OFCOM’s opinion, it would be appropriate

for that purpose to give to the [F660group] without any such request;

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and (b) any other assistance which the [F660group] may require, and which it is within

OFCOM’s power to give, in relation to any such matters, and the [F660group] , for the purposes of carrying out any such investigation, shall take into account any information given to it for that purpose under this subsection.

[F661(7A) In subsection (7) “CMA group” has the same meaning as in Schedule 4 to the Enterprise and Regulatory Reform Act 2013.]

(8) If any question arises as to whether, by virtue of this section, any functions fall to be, or are capable of being, carried out by OFCOM in relation to any particular case, that question shall be referred to and determined by the Secretary of State.

(9) No objection shall be taken to anything done under Part 4 of the Enterprise Act 2002 (c. 40) by or in relation to OFCOM on the ground that it should have been done by or in relation to the [F662CMA] .

(10) Section 117 of the Enterprise Act 2002 (offences of supplying false or misleading information) as applied by section 180 of that Act shall have effect so far as relating to functions exercisable by OFCOM by virtue of this section as if the references in section 117(1)(a) and (2) to the [F662CMA] included references to OFCOM.

(11) Subject to subsection (12), [F663section 3 of this Act (general duties) and section 29 of the Postal Services Act 2011 (duty to secure provision of universal postal service) do not] apply in relation to anything done by OFCOM in the carrying out of their functions by virtue of this section.

(12) In the carrying out of any functions by virtue of this section OFCOM may nevertheless have regard to any of the matters in respect of which a duty is imposed by [F664section 3(1) to (4) of this Act or section 29 of the Postal Services Act 2011] if it is a matter to which the [F665CMA] is entitled to have regard in the carrying out of those functions.

Textual Amendments F646 Words in s. 370(1) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013

(Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(2) (with art. 3)

F647 Word in s. 370(2) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(3)(b) (with art. 3)

F648 Words in s. 370(2) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(3)(a) (with art. 3)

F649 Words in s. 370(2) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(3)(c) (with art. 3)

F650 Words in s. 370(3) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(4)(a) (with art. 3)

F651 Word in s. 370(3)(a) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(4)(b) (with art. 3)

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F652 Words in s. 370(3) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(4)(c) (with art. 3)

F653 S. 370(3A) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(5) (with art. 3)

F654 Words in s. 370(4) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(6)(a) (with art. 3)

F655 Words in s. 370(4) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(6)(b) (with art. 3)

F656 Word in s. 370(4) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(6)(c) (with art. 3)

F657 Word in s. 370(5)(6) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(7) (with art. 3)

F658 Words in s. 370(7) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(8)(a) (with art. 3)

F659 Words in s. 370(7) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(8)(b) (with art. 3)

F660 Word in s. 370(7) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(8)(c) (with art. 3)

F661 S. 370(7A) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(9) (with art. 3)

F662 Word in s. 370(9)(10) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(10) (with art. 3)

F663 Words in s. 370(11) substituted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 63(2); S.I. 2011/2329, art. 3

F664 Words in s. 370(12) substituted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 63(3); S.I. 2011/2329, art. 3

F665 Word in s. 370(12) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 161(10) (with art. 3)

Commencement Information I535 S. 370 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I536 S. 370 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

371 OFCOM’s functions under the Competition Act 1998

(1) The functions to which subsection (2) applies shall be concurrent functions of OFCOM and the [F666CMA] .

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[F667(2) This subsection applies to the functions of the [F666CMA] under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6), 38(1) to (6) [F668, 40B(1) to (4)] and 51), so far as relating to—

(a) agreements, decisions or concerted practices of the kind mentioned in section 2(1) of that Act,

(b) conduct of the kind mentioned in section 18(1) of that Act, (c) agreements, decisions or concerted practices of the kind mentioned in

[F669Article 101(1) of the Treaty on the Functioning of the European Union] , or

(d) conduct which amounts to abuse of the kind mentioned in [F670Article 102 of the Treaty on the Functioning of the European Union] ,

which relate to activities connected with communications matters.]

(3) So far as necessary for the purposes of, or in connection with, the provisions of subsections (1) and (2), references to the [F666CMA] in Part 1 of the Competition Act 1998 are to be read as including references to OFCOM, except—

(a) [F671in sections 31D(1) to (6), 38(1) to (6)][F672, 40B(1) to (4)] , 51, 52(6) and (8) and 54, and

(b) where the context otherwise requires.

(4) In subsection (2), the reference to activities connected with communications matters, so far as it is a reference to activities connected with any apparatus falling within paragraph (d) of section 369(1), includes a reference to—

(a) the supply and export of any such apparatus; and (b) the production or acquisition of any such apparatus for supply or export.

(5) In section 54 of the Competition Act 1998— (a) in subsection (1) (definition of “regulator” for the purposes of Part 1 of that

Act), for paragraph (a) there shall be substituted— “(a) the Office of Communications;”

(b) in subsection (4) (power to make regulations about concurrent functions of the [F666CMA] and sectoral regulators), “or by Chapter V of Part I of the Transport Act 2000” there shall be inserted “ to this Act, by Chapter 5 of Part 1 of the Transport Act 2000 or by section 371 of the Communications Act 2003 ”.

(6) In paragraph 5 of Schedule 2 to the Competition Act 1998 (publication of list of networking arrangements under the 1990 Act excluded from the Chapter 1 prohibition) —

(a) in sub-paragraph (2), for “The Independent Television Commission (“ITC”)” there shall be substituted “ OFCOM ”; and

(b) in sub-paragraph (3), for “The ITC” there shall be substituted “ OFCOM ”.

(7) In section 59(1) of the Competition Act 1998 (interpretation of Part 1), after the definition of “Minister of the Crown” there shall be inserted—

““OFCOM” means the Office of Communications;”.

(8) OFCOM may carry out, in respect of activities connected with communications matters and concurrently with the [F666CMA] , the functions of the [F666CMA] under any of paragraphs 3, 7, 19(3) and 36 to 39 of Schedule 13 to the Competition Act 1998 (transitional provisions).

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(9) If any question arises as to whether, by virtue of this section, any functions fall to be, or are capable of being, carried out by OFCOM in relation to a particular case, that question shall be referred to and determined by the Secretary of State.

(10) No objection shall be taken to anything done under by or in relation to OFCOM under the Competition Act 1998 (c. 41) on the ground that it should have been done by or in relation to the [F666CMA] .

(11) Subject to subsection (12), [F673section 3 of this Act (general duties) and section 29 of the Postal Services Act 2011 (duty to secure provision of universal postal service) do not] apply in relation to anything done by OFCOM in the carrying out of their functions by virtue of this section.

(12) In the carrying out of any functions by virtue of this section OFCOM may nevertheless have regard to any of the matters in respect of which a duty is imposed by [F674section 3(1) to (4) of this Act or section 29 of the Postal Services Act 2011] if it is a matter to which the [F666CMA] is entitled to have regard in the carrying out of those functions.

Textual Amendments F666 Word in s. 371 substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013

(Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 162 (with art. 3)

F667 S. 371(2) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 11(2)(a)

F668 Words in s. 371(2) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(3), Sch. 15 para. 46; S.I. 2014/416, art. 2(1)(f) (with Sch.)

F669 Words in s. 371(2)(c) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

F670 Words in s. 371(2)(d) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

F671 Words in s. 371(3)(a) substituted (1.5.2004) by The Competition Act 1998 and Other Enactments (Amendment) Regulations 2004 (S.I. 2004/1261), reg. 1(a), Sch. 2 para. 11(2)(b)

F672 Words in s. 371(3)(a) inserted (1.4.2014) by Enterprise and Regulatory Reform Act 2013 (c. 24), Sch. 15 para. 46; S.I. 2014/416, art. 2(1)(f) (with Sch.)

F673 Words in s. 371(11) substituted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 64(2); S.I. 2011/2329, art. 3

F674 Words in s. 371(12) substituted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 64(3); S.I. 2011/2329, art. 3

Commencement Information I537 S. 371 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I538 S. 371 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

372 Application of the Competition Act 1998 to news provision

(1) Section 194A of the 1990 Act (which modifies the Competition Act 1998 in relation to agreements relating to Channel 3 news provision) shall be amended as follows.

(2) In subsection (1) (meaning of “relevant agreement”)—

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(a) for “section 31A(a)” there shall be substituted “ section 280 of the Communications Act 2003 ”; and

(b) for “section 31(2)” (in both places) there shall be substituted “ that section ”.

(3) In subsections (2), (6) and (7)(b)(i) (consultations with and notifications to the Office of Fair Trading), after the words “the OFT”, in each place where they occur, there shall be inserted “ and OFCOM ”.

(4) In subsection (3)(b)— (a) for “section 31(2)” there shall be substituted “ section 280 of the

Communications Act 2003 ”; and (b) for “section 31(1) and (2)” there shall be substituted “ that section of that Act

of 2003 ”.

(5) In subsection (5)(c) (declaration without notification), after “the OFT” there shall be inserted “ or OFCOM or both of them ”.

(6) In subsection (7) (restriction on exercise by Office of Fair Trading of Chapter III powers)—

(a) for “The OFT may not” there shall be substituted “ Neither the OFT nor OFCOM may ”; and

(b) for paragraph (a) there shall be substituted— “(a) the Secretary of State has been notified by the OFT or (as the

case may be) by OFCOM of its or their intention to do so; and”.

(7) In subsection (8) (notice by Office of Fair Trading to the Secretary of State), for the words from the beginning to “assist” in paragraph (a) there shall be substituted—

“(8) Where the OFT or OFCOM is or are proposing to exercise any Chapter III powers in respect of a relevant agreement, it or they must give the Secretary of State particulars of the agreement and such other information—

(a) it considers or (as the case may be) they consider will assist”.

(8) In subsection (9), in the definition of “Chapter III powers”, for “given to the OFT by” there shall be substituted “ of the OFT and of OFCOM under ”.

Commencement Information I539 S. 372 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

CHAPTER 2

MEDIA MERGERS

Introductory

373 Repeal of existing newspaper merger regime

Sections 57 to 62 of the Fair Trading Act 1973 (c. 41) (newspaper merger references) shall cease to have effect.

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Commencement Information I540 S. 373 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

374 Repeal of exclusion for newspaper mergers from general merger controls

Section 69 of the Enterprise Act 2002 (c. 40) (exclusion of newspaper mergers from references under Part 3 of that Act) shall cease to have effect.

Commencement Information I541 S. 374 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Adaptation for media mergers of main merger regime

375 Media public interest considerations

(1) After subsection (2) of section 58 of the Enterprise Act 2002 (considerations specified as public interest considerations for the purpose of the main merger regime) there shall be inserted—

“(2A) The need for— (a) accurate presentation of news; and (b) free expression of opinion;

in newspapers is specified in this section.

(2B) The need for, to the extent that it is reasonable and practicable, a sufficient plurality of views in newspapers in each market for newspapers in the United Kingdom or a part of the United Kingdom is specified in this section.

(2C) The following are specified in this section— (a) the need, in relation to every different audience in the United

Kingdom or in a particular area or locality of the United Kingdom, for there to be a sufficient plurality of persons with control of the media enterprises serving that audience;

(b) the need for the availability throughout the United Kingdom of a wide range of broadcasting which (taken as a whole) is both of high quality and calculated to appeal to a wide variety of tastes and interests; and

(c) the need for persons carrying on media enterprises, and for those with control of such enterprises, to have a genuine commitment to the attainment in relation to broadcasting of the standards objectives set out in section 319 of the Communications Act 2003.”

(2) After that section there shall be inserted, in Chapter 2 of Part 3—

58A Construction of consideration specified in section 58(2C)

(1) For the purposes of section 58 and this section an enterprise is a media enterprise if it consists in or involves broadcasting.

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(2) In the case of a merger situation in which at least one of the enterprises ceasing to be distinct consists in or involves broadcasting, the references in section 58(2C)(a) or this section to media enterprises include references to newspaper enterprises.

(3) In this Part “newspaper enterprise” means an enterprise consisting in or involving the supply of newspapers.

(4) Wherever in a merger situation two media enterprises serving the same audience cease to be distinct, the number of such enterprises serving that audience shall be assumed to be more immediately before they cease to be distinct than it is afterwards.

(5) For the purposes of section 58, where two or more media enterprises— (a) would fall to be treated as under common ownership or common

control for the purposes of section 26, or (b) are otherwise in the same ownership or under the same control,

they shall be treated (subject to subsection (4)) as all under the control of only one person.

(6) A reference in section 58 or this section to an audience shall be construed in relation to a media enterprise in whichever of the following ways the decision- making authority considers appropriate—

(a) as a reference to any one of the audiences served by that enterprise, taking them separately;

(b) as a reference to all the audiences served by that enterprise, taking them together;

(c) as a reference to a number of those audiences taken together in such group as the decision-making authority considers appropriate; or

(d) as a reference to a part of anything that could be taken to be an audience under any of paragraphs (a) to (c) above.

(7) The criteria for deciding who can be treated for the purposes of this section as comprised in an audience, or as comprised in an audience served by a particular service—

(a) shall be such as the decision-making authority considers appropriate in the circumstances of the case; and

(b) may allow for persons to be treated as members of an audience if they are only potentially members of it.

(8) In this section “audience” includes readership.

(9) The power under subsection (3) of section 58 to modify that section includes power to modify this section.”

(3) In section 127(1) of that Act (associated persons to be treated as one person), for the word “and” at the end of paragraph (a) there shall be substituted—

“(aa) for the purposes of section 58(2C); and”.

Commencement Information I542 S. 375 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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376 Adaptation of role of OFT in initial investigations and reports

(1) In section 44(3)(b) of the Enterprise Act 2002 (c. 40) (initial report by OFT in public interest cases must include summary of representations about public interest considerations) after the word “concerned” there shall be inserted “ (other than a media public interest consideration) ”.

(2) After section 44(5) of that Act there shall be inserted—

“(5A) The report may, in particular, contain a summary of any representations about the case which have been received by the OFT and which relate to any media public interest consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45.”

(3) After section 44(7) of that Act there shall be inserted—

“(8) In this Part “media public interest consideration” means any consideration which, at the time of the giving of the intervention notice concerned—

(a) is specified in section 58(2A) to (2C); or (b) in the opinion of the Secretary of State, is concerned with

broadcasting or newspapers and ought to be specified in section 58.

(9) In this Part “broadcasting” means the provision of services the provision of which—

(a) is required to be licensed under Part 1 or 3 of the Broadcasting Act 1990 or Part 1 or 2 of the Broadcasting Act 1996; or

(b) would be required to be so licensed if provided by a person subject to licensing under the Part in question.

(10) In this Part “newspaper” means a daily, Sunday or local (other than daily or Sunday) newspaper circulating wholly or mainly in the United Kingdom or in a part of the United Kingdom.

(11) The Secretary of State may by order amend subsections (9) and (10).”

Commencement Information I543 S. 376 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

377 Additional investigation and report by OFCOM

After section 44 of the Enterprise Act 2002 (investigation and report by OFT in public interest cases) there shall be inserted—

44A Additional investigation and report by OFCOM: media mergers

(1) Subsection (2) applies where— (a) the Secretary of State has given an intervention notice in relation to a

relevant merger situation; and (b) the intervention notice mentions any media public interest

consideration.

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(2) OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case.

(3) The report shall contain— (a) advice and recommendations on any media public interest

consideration mentioned in the intervention notice concerned and which is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 45; and

(b) a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration.

(4) OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.”

Commencement Information I544 S. 377 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Extension of special public interest regime

378 Extension of special public interest regime for certain media mergers

(1) In section 59 of the Enterprise Act 2002 (c. 40) (intervention by Secretary of State in special public interest cases), for subsections (3) and (4) (definition of “special merger situation”) there shall be substituted—

“(3) For the purposes of this Part a special merger situation has been created if— (a) the condition mentioned in subsection (3A) is satisfied; and (b) immediately before the enterprises concerned ceased to be distinct—

(i) the conditions mentioned in subsection (3B) were satisfied; (ii) the condition mentioned in subsection (3C) was satisfied; or

(iii) the condition mentioned in subsection (3D) was satisfied.

(3A) The condition mentioned in this subsection is that— (a) no relevant merger situation has been created because of section 23(1)

(b) and (2)(b); but (b) a relevant merger situation would have been created if those

enactments were disregarded.

(3B) The conditions mentioned in this subsection are that— (a) at least one of the enterprises concerned was carried on in the United

Kingdom or by or under the control of a body corporate incorporated in the United Kingdom; and

(b) a person carrying on one or more of the enterprises concerned was a relevant government contractor.

(3C) The condition mentioned in this subsection is that, in relation to the supply of newspapers of any description, at least one-quarter of all the newspapers of that description which were supplied in the United Kingdom, or in a

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substantial part of the United Kingdom, were supplied by the person or persons by whom one of the enterprises concerned was carried on.

(3D) The condition mentioned in this subsection is that, in relation to the provision of broadcasting of any description, at least one-quarter of all broadcasting of that description provided in the United Kingdom, or in a substantial part of the United Kingdom, was provided by the person or persons by whom one of the enterprises concerned was carried on.”

(2) After subsection (6) of that section there shall be inserted—

“(6A) The Secretary of State may by order amend the conditions mentioned in subsection (3)(b)(ii) and (iii).”

(3) After that section there shall be inserted—

59A Construction of conditions in section 59(3C) and (3D)

(1) For the purpose of deciding whether the proportion of one-quarter mentioned in section 59(3C) or (3D) is fulfilled with respect to—

(a) newspapers of any description, or (b) broadcasting of any description,

the decision-making authority shall apply such criterion (whether value, cost, price, quantity, capacity, number of workers employed or some other criterion, of whatever nature), or such combination of criteria, as the decision-making authority considers appropriate.

(2) References in section 59(3C) to the supply of newspapers shall, in relation to newspapers of any description which are the subject of different forms of supply, be construed in whichever of the following ways the decision-making authority considers appropriate—

(a) as references to any of those forms of supply taken separately; (b) as references to all those forms of supply taken together; or (c) as references to any of those forms of supply taken in groups.

(3) For the purposes of subsection (2) the decision-making authority may treat newspapers as being the subject of different forms of supply whenever—

(a) the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and

(b) the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.

(4) References in section 59(3D) to the provision of broadcasting shall, in relation to broadcasting of any description which is the subject of different forms of provision, be construed in whichever of the following ways the decision- making authority considers appropriate—

(a) as references to any of those forms of provision taken separately; (b) as references to all those forms of provision taken together; or (c) as references to any of those forms of provision taken in groups.

(5) For the purposes of subsection (4) the decision-making authority may treat broadcasting as being the subject of different forms of provision whenever—

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(a) the transactions concerned differ as to their nature, their parties, their terms or their surrounding circumstances; and

(b) the difference is one which, in the opinion of the decision-making authority, ought for the purposes of that subsection to be treated as a material difference.

(6) The criteria for deciding when newspapers or broadcasting can be treated, for the purposes of section 59, as newspapers or broadcasting of a separate description shall be such as in any particular case the decision-making authority considers appropriate in the circumstances of that case.

(7) In section 59 and this section “provision” and cognate expressions have the same meaning in relation to broadcasting as in Part 3 of the Communications Act 2003; but this subsection is subject to subsections (4) and (5) of this section.”

Commencement Information I545 S. 378 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

379 Adaptation of role of OFT in special public interest regime

(1) Section 61 of the Enterprise Act 2002 (c. 40) (initial investigation and report by OFT in special public interest cases) shall be amended as follows.

(2) In subsection (3)(b) (report must include summary of representations about considerations specified in section 58) after the word “concerned” there shall be inserted “ (other than a consideration which, at the time of the giving of the notice, was specified in section 58(2A) to (2C)) ”.

(3) In subsection (4) for the words “59(4)(b)” there shall be substituted “ 59(3B)(b) ”.

(4) After subsection (4) there shall be inserted—

“(4A) The report may, in particular, contain a summary of any representations about the case which have been received by the OFT and which relate to any consideration which—

(a) is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and

(b) is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62.”

Commencement Information I546 S. 379 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

380 Additional investigation and report by OFCOM: special public interest cases

After section 61 of the Enterprise Act 2002 (initial investigation and report by OFT in special public interest cases) there shall be inserted—

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61A Additional investigation and report by OFCOM: certain media mergers

(1) Subsection (2) applies where— (a) the Secretary of State has given a special intervention notice in relation

to a special merger situation; and (b) the special intervention notice mentions any consideration which, at

the time of the giving of the notice, was specified in section 58(2A) to (2C).

(2) OFCOM shall, within such period as the Secretary of State may require, give a report to the Secretary of State on the effect of the consideration or considerations concerned on the case.

(3) The report shall contain— (a) advice and recommendations on any consideration which—

(i) is mentioned in the special intervention notice concerned and, at the time of the giving of that notice, was specified in section 58(2A) to (2C); and

(ii) is or may be relevant to the Secretary of State’s decision as to whether to make a reference under section 62; and

(b) a summary of any representations about the case which have been received by OFCOM and which relate to any such consideration.

(4) OFCOM shall carry out such investigations as they consider appropriate for the purposes of producing a report under this section.”

Commencement Information I547 S. 380 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

New general functions in relation to media mergers

381 Public consultation in relation to media mergers

After section 104 of the Enterprise Act 2002 (c. 40) there shall be inserted—

104A Public consultation in relation to media mergers

(1) Subsection (2) applies where the Commission— (a) is preparing—

(i) a report under section 50 on a reference which specifies a media public interest consideration; or

(ii) a report under section 65 on a reference which specifies a consideration specified in section 58(2A) to (2C); and

(b) is not under a duty to disregard the consideration concerned.

(2) The Commission shall have regard (among other things) to the need to consult the public so far as they might be affected by the creation of the relevant merger

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situation or special merger situation concerned and so far as such consultation is practicable.

(3) Any consultation of the kind mentioned in subsection (2) may be undertaken by the Commission by consulting such representative sample of the public or section of the public concerned as the Commission considers appropriate.”

Commencement Information I548 S. 381 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

382 General information duties in relation to media mergers

(1) Section 105 of the Enterprise Act 2002 (general information duties of OFT and Competition Commission) shall be amended as follows.

(2) After subsection (1) there shall be inserted—

“(1A) Where OFCOM decide to investigate a matter so as to make a report under section 44A or 61A, they shall, so far as practicable, take such action as they consider appropriate to bring information about the investigation to the attention of those who they consider might be affected by the creation of the relevant merger situation concerned or (as the case may be) the special merger situation concerned.”

(3) In subsection (2) (exclusion for merger notices) for the words “Subsection (1) does” there shall be substituted “ Subsections (1) and (1A) do ”.

(4) In subsection (3) (duty of OFT to give requested assistance to Competition Commission)—

(a) after the word “Commission”, where it occurs for the first time, there shall be inserted “ or OFCOM ”; and

(b) after the word “Commission”, where it occurs for the second, third and fourth time, there shall be inserted “ or (as the case may be) OFCOM ”.

(5) After subsection (3) there shall be inserted—

“(3A) OFCOM shall give the Commission or the OFT— (a) such information in their possession as the Commission or (as the case

may be) the OFT may reasonably require to enable the Commission or (as the case may be) the OFT to carry out its functions under this Part; and

(b) any other assistance which the Commission or (as the case may be) the OFT may reasonably require for the purpose of assisting it in carrying out its functions under this Part and which it is within the power of OFCOM to give.”

(6) In subsection (4) (duty of OFT to give unrequested information to Competition Commission)—

(a) after the word “Commission”, where it occurs for the first time, there shall be inserted “ or OFCOM ”; and

(b) after the word “Commission”, where it occurs for the second and third time, there shall be inserted “ or (as the case may be) OFCOM ”.

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(7) After subsection (4) there shall be inserted—

“(4A) OFCOM shall give the Commission or the OFT any information in their possession which has not been requested by the Commission or (as the case may be) the OFT but which, in the opinion of OFCOM, would be appropriate to give to the Commission or (as the case may be) the OFT for the purpose of assisting it in carrying out its functions under this Part.”

(8) In subsection (5) (duty of OFT and Competition Commission to give requested assistance to the Secretary of State) after the word “OFT”, in both places where it occurs, there shall be inserted “ , OFCOM ”.

(9) In subsection (6) (duty of OFT to give unrequested information to Secretary of State) —

(a) after the word “OFT”, where it occurs for the first time, there shall be inserted “ and OFCOM ”;

(b) for the word “its” there shall be substituted “ their ”; and (c) after the word “OFT”, where it occurs for the second time, there shall be

inserted “ or (as the case may be) OFCOM ”.

(10) In subsection (7) (duty to have regard to information given) for the words “or (4)” there shall be substituted “ , (3A), (4) or (4A) ”.

(11) After subsection (7) there shall be inserted—

“(7A) OFCOM shall have regard to any information given to them under subsection (3) or (4); and the OFT shall have regard to any information given to it under subsection (3A) or (4A).”

Commencement Information I549 S. 382 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

383 Advice and information in relation to media mergers

After section 106 of the Enterprise Act 2002 (c. 40) there shall be inserted—

106A Advice and information in relation to media mergers

(1) The Secretary of State may prepare and publish general advice and information about the considerations specified in section 58(2A) to (2C).

(2) The Secretary of State may at any time publish revised, or new, advice or information.

(3) Advice or information published under this section shall be prepared with a view to—

(a) explaining the considerations specified in section 58(2A) to (2C) to persons who are likely to be affected by them; and

(b) indicating how the Secretary of State expects this Part to operate in relation to such considerations.

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(4) Any advice or information published by the Secretary of State under this section shall be published in such manner as the Secretary of State considers appropriate.

(5) In preparing any advice or information under this section, the Secretary of State shall consult the OFT, OFCOM, the Commission and such other persons as he considers appropriate.”

Commencement Information I550 S. 383 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

384 General advisory functions of OFCOM in relation to media mergers

After section 106A of the Enterprise Act 2002 there shall be inserted—

106B General advisory functions of OFCOM

(1) OFCOM may, in connection with any case on which they are required to give a report by virtue of section 44A or 61A, give such advice as they consider appropriate to the Secretary of State in relation to—

(a) any report made in such a case by the Commission under section 50 or 65; and

(b) the taking by the Secretary of State of enforcement action under Schedule 7.

(2) OFCOM may, if requested to do so by the Secretary of State, give such other advice as they consider appropriate to the Secretary of State in connection with any case on which they are required to give a report by virtue of section 44A or 61A.

(3) OFCOM shall publish any advice given by them under this section but advice given by them in relation to a report of the Commission under section 50 or 65 or related enforcement action shall not be published before the report itself is published.”

Commencement Information I551 S. 384 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

385 Other general functions of OFCOM in relation to media mergers

After section 119 of the Enterprise Act 2002 (c. 40) there shall be inserted—

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“Further provision about media mergers

119A Other general functions of OFCOM in relation to this Part

(1) OFCOM have the function of obtaining, compiling and keeping under review information about matters relating to the carrying out of their functions under this Part.

(2) That function is to be carried out with a view to (among other things) ensuring that OFCOM have sufficient information to take informed decisions and to carry out their other functions effectively.

(3) In carrying out that function OFCOM may carry out, commission or support (financially or otherwise) research.

(4) Section 3 of the Communications Act 2003 (general duties of OFCOM) shall not apply in relation to functions of OFCOM under this Part.”

Commencement Information I552 S. 385 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

386 Monitoring role for OFT in relation to media mergers

After section 119A of the Enterprise Act 2002 there shall be inserted—

119B Monitoring role for OFT in relation to media mergers

(1) The OFT has the function of obtaining, compiling and keeping under review information about matters which may be relevant to the Secretary of State in deciding whether to give a special intervention notice mentioning a consideration specified in section 58(2A) to (2C).

(2) That function is to be carried out with a view to (among other things) ensuring that the Secretary of State is aware of cases where, in the opinion of the OFT, he might wish to consider giving such a notice.

(3) That function does not extend to obtaining, compiling or keeping under review information with a view to carrying out a detailed analysis in each case of the operation in relation to that case of the consideration specified in section 58(2A) to (2C).”

Commencement Information I553 S. 386 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Supplemental provisions of Chapter 2

387 Enforcement powers in relation to newspaper and other media mergers

In Schedule 8 to the Enterprise Act 2002 (provision that may be contained in certain enforcement orders) after paragraph 20 there shall be inserted—

20A (1) This paragraph applies in relation to any order— (a) which is to be made following the giving of—

(i) an intervention notice which mentions a newspaper public interest consideration;

(ii) an intervention notice which mentions any other media public interest consideration in relation to a relevant merger situation in which one of the enterprises ceasing to be distinct is a newspaper enterprise;

(iii) a special intervention notice which mentions a consideration specified in section 58(2A) or (2B); or

(iv) a special intervention notice which, in relation to a special merger situation in which one of the enterprises ceasing to be distinct is a newspaper enterprise, mentions a consideration specified in section 58(2C); and

(b) to which the consideration concerned is still relevant.

(2) The order may make such provision as the person making the order considers to be appropriate in all circumstances of the case.

(3) Such provision may, in particular, include provision requiring a person to do, or not to do, particular things.

(4) Provision made by virtue of this paragraph may, in particular, include provision—

(a) altering the constitution of a body corporate (whether in connection with the appointment of directors, the establishment of an editorial board or otherwise);

(b) requiring the agreement of the relevant authority or another person before the taking of particular action (including the appointment or dismissal of an editor, journalists or directors or acting as a shadow director);

(c) attaching conditions to the operation of a newspaper; (d) prohibiting consultation or co-operation between subsidiaries.

(5) In this paragraph “newspaper public interest consideration” means a media public interest consideration other than one which is such a consideration—

(a) by virtue of section 58(2C); or (b) by virtue of having been, in the opinion of the Secretary of State,

concerned with broadcasting and a consideration that ought to have been specified in section 58.

(6) This paragraph is without prejudice to the operation of the other paragraphs of this Schedule in relation to the order concerned.”

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Commencement Information I554 S. 387 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F675388 Alterations concerning newspaper panel of Competition Commission

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F675 S. 388 omitted (1.4.2014) by virtue of The Enterprise and Regulatory Reform Act 2013 (Competition)

(Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 163 (with art. 3)

Commencement Information I555 S. 388 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

389 Further provision in connection with media mergers

(1) Schedule 16 (which contains further amendments in connection with media mergers) shall have effect.

(2) Sections 276(2) and (3) and 277 of the Enterprise Act 2002 (c. 40) (power to make transitional and consequential amendments etc.) shall apply in relation to this Chapter of this Part of this Act and its related repeals as they apply in relation to that Act.

(3) For the avoidance of doubt, the power conferred by virtue of subsection (2) by applying section 277 of the Act of 2002 includes the power to modify that Act.

(4) Section 402 shall not apply in relation to any power to make an order which is exercisable by the Secretary of State by virtue of subsection (2).

Commencement Information I556 S. 389 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

PART 6

MISCELLANEOUS AND SUPPLEMENTAL

Annual report

390 Annual report on the Secretary of State’s functions

(1) The Secretary of State must prepare and lay before Parliament regular reports on the carrying out by him of the functions to which this section applies.

(2) This section applies to the Secretary of State’s functions under the following enactments—

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(a) this Act; (b) the Office of Communications Act 2002 (c. 11); (c) the enactments relating to the management of the radio spectrum so far as not

comprised in this Act; (d) the 1990 Act; (e) the 1996 Act.

(3) The first report under this section must relate to the period which— (a) begins with 19th March 2002 (the date of the passing of the Office of

Communications Act 2002); and (b) ends with the period of twelve months beginning with the first date to be

appointed for the purposes of section 2 of this Act.

(4) Every subsequent report must relate to the period of twelve months beginning with the end of the period to which the previous report related.

(5) The obligation under this section to prepare and lay a report before Parliament is an obligation to do that as soon as reasonably practicable after the end of the period to which the report relates.

(6) Where a report for the purposes of this section relates to a period the whole or a part of which falls before the time when the whole of this Act is in force, the functions referred to in subsection (2) are to be taken as excluding all functions under the specified enactments that will have ceased to be functions of the Secretary of State when the whole of this Act is in force.

Commencement Information I557 S. 390 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Review of media ownership

391 Review of media ownership

(1) It shall be the duty of OFCOM— (a) to carry out regular reviews of the operation, taken together, of all the

provisions to which this section applies; and (b) to send a report on every such review to the Secretary of State.

(2) This section applies to— (a) the provisions of Schedule 2 to the 1990 Act; (b) the provision made by or under Schedule 14 to this Act; (c) the provisions of sections 280 and 281 of this Act; (d) whatever provision (if any) has been made under section 283 of this Act; and (e) the provisions of Part 3 of the Enterprise Act 2002 (c. 40) so far as they relate

to intervention by the Secretary of State in connection with newspapers or other media enterprises.

(3) The first review must be carried out no more than three years after the commencement of this section, and subsequent reviews must be carried out at intervals of no more than three years.

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(4) The report to the Secretary of State on a review must set out OFCOM’s recommendations, in consequence of their conclusions on the review, for the exercise by the Secretary of State of—

(a) his power to make an order under section 348(5); (b) his powers to make orders under Schedule 14; (c) his powers under sections 282 and 283; and (d) his powers under sections 44(11), 58(3) and 59(6A) of the Enterprise Act 2002

(media mergers).

(5) OFCOM must publish every report sent by them to the Secretary of State under this section in such manner as they consider appropriate for bringing it to the attention of persons who, in their opinion, are likely to be affected by it.

Commencement Information I558 S. 391 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Guidelines as to penalties

392 Penalties imposed by OFCOM

(1) It shall be the duty of OFCOM to prepare and publish a statement containing the guidelines they propose to follow in determining the amount of penalties imposed by them under provisions contained in this Act or any other enactment apart from the Competition Act 1998 (c. 41).

(2) OFCOM may from time to time revise that statement as they think fit.

(3) Where OFCOM make or revise their statement under this section, they must publish the statement or (as the case may be) the revised statement in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(4) Before publishing a statement or revised statement under this section OFCOM must consult both—

(a) the Secretary of State, and (b) such other persons as they consider appropriate,

about the guidelines they are proposing to include in the statement.

(5) Before determining how to publish a statement or revised statement under this section OFCOM must consult the Secretary of State.

(6) It shall be the duty of OFCOM, in determining the amount of any penalty to be imposed by them under this Act or any other enactment (apart from the Competition Act 1998 (c. 41)) to have regard to the guidelines contained in the statement for the time being in force under this section.

(7) References in this section to penalties imposed by OFCOM under provisions contained in this Act include references to penalties which the BBC is liable to pay to OFCOM by virtue of section 198(3).

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Commencement Information I559 S. 392 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Disclosure of information

393 General restrictions on disclosure of information

(1) Subject to the following provisions of this section, information with respect to a particular business which has been obtained in exercise of a power conferred by—

(a) this Act, F676(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) the 1990 Act, or (d) the 1996 Act,

is not, so long as that business continues to be carried on, to be disclosed without the consent of the person for the time being carrying on that business.

(2) Subsection (1) does not apply to any disclosure of information which is made— (a) for the purpose of facilitating the carrying out by OFCOM of any of their

functions; (b) for the purpose of facilitating the carrying out by any relevant person of any

relevant function; (c) for the purpose of facilitating the carrying out by the Comptroller and Auditor

General of any of his functions; (d) for any of the purposes specified in section 17(2)(a) to (d) of the Anti-

terrorism, Crime and Security Act 2001 (c. 24) (criminal proceedings and investigations);

(e) for the purpose of any civil proceedings brought under or by virtue of this Act or any of the enactments or instruments mentioned in subsection (5); or

(f) for the purpose of securing compliance with an international obligation of the United Kingdom.

(3) Each of the following is a relevant person for the purposes of this section— (a) a Minister of the Crown and the Treasury; (b) the Scottish Executive; (c) a Northern Ireland department; (d) the [F677Competition and Markets Authority] ;

F678(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (f) the Consumer Panel; (g) the Welsh Authority; (h) a local weights and measures authority in Great Britain; (i) any other person specified for the purposes of this subsection in an order made

by the Secretary of State.

(4) The following are relevant functions for the purposes of this section— (a) any function conferred by or under this Act; (b) any function conferred by or under any enactment or instrument mentioned

in subsection (5);

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(c) any other function specified for the purposes of this subsection in an order made by the Secretary of State.

(5) The enactments and instruments referred to in subsections (2) and (4) are— F679(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F679(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F680(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(d) the Trade Descriptions Act 1968 (c. 29); (e) the Fair Trading Act 1973 (c. 41); (f) the Consumer Credit Act 1974 (c. 39); (g) the Competition Act 1980 (c. 21); (h) the Telecommunications Act 1984 (c. 12); (i) the Consumer Protection Act 1987 (c. 43); (j) the 1990 Act; (k) the 1996 Act;

F681(l) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (m) the Competition Act 1998 (c. 41); (n) the Enterprise Act 2002 (c. 40);

[F682(na) the Wireless Telegraphy Act 2006;] (o) the Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987/2049 (N.I.

20)); [F683(p) the Business Protection from Misleading Marketing Regulations 2008;

(q) the Consumer Protection from Unfair Trading Regulations 2008.] [F684(r) Parts 3 and 4 of the Enterprise and Regulatory Reform Act 2013.]

(6) Nothing in this section— (a) limits the matters that may be published under section 15, 26 [F685 , 134AB

][F686 , 137A ] or 390; [F687(aza) prevents the disclosure of information under section 24A or 24B;] [F688(aa) limits the information that may be made available under section 76A;]

(b) limits the matters that may be included in, or made public as part of, a report made by OFCOM by virtue of a provision of this Act or the Office of Communications Act 2002 (c. 11);

[F689(ba) limits the matters that may be published as part of a comparative overview carried out by OFCOM under section 134D;]

(c) prevents the disclosure of anything for the purposes of a report of legal proceedings in which it has been publicly disclosed;

(d) applies to information that has been published [F690, made public or made available] as mentioned in paragraphs (a) to (c).

(7) Nothing in this section applies to information obtained in exercise of the powers conferred by section 196 of the 1990 Act (powers of entry and search).

(8) Information obtained by OFCOM in exercise of functions which are exercisable by them concurrently with the [F691Competition and Markets Authority] under Part 1 of the Competition Act 1998 is subject to Part 9 of the Enterprise Act 2002, and not to the preceding provisions of this section.

(9) Section 18 of the Anti-terrorism, Crime and Security Act 2001 (c. 24) (restriction on disclosure of information for overseas purposes) shall have effect in relation to

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a disclosure by virtue of subsection (2)(d) as it applies in relation to a disclosure in exercise of a power to which section 17 of that Act applies.

(10) A person who discloses information in contravention of this section is guilty of an offence and 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.

(11) No order is to be made containing provision authorised by subsection (3) or (4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

(12) In this section “legal proceedings” means civil or criminal proceedings in or before any court, or proceedings before any tribunal established by or under any enactment.

Textual Amendments F676 S. 393(1)(b) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1) F677 Words in s. 393(3)(d) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013

(Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 164(1)(a)(i) (with art. 3)

F678 S. 393(3)(e) omitted (1.4.2014) by virtue of The Enterprise and Regulatory Reform Act 2013 (Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 164(1)(a)(ii) (with art. 3)

F679 S. 393(5)(a)(b) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F680 S. 393(5)(c) repealed (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(2), Sch. 21 para. 2

F681 S. 393(5)(l) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F682 S. 393(5)(na) inserted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para. 31 F683 S. 393(5)(p)(q) substituted for s. 393(5)(p) (26.5.2008) by The Consumer Protection from Unfair

Trading Regulations 2008 (S.I. 2008/1277), reg. 1, Sch. 2 para. 72 (with reg. 28(2)(3)) F684 S. 393(5)(r) inserted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013 (Competition)

(Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 164(1)(b) (with art. 3)

F685 Word in s. 393(6)(a) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 82(5), 118(2) F686 Word in s. 393(6)(a) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 86(7), 118(2) F687 S. 393(6)(aza) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 98(4), 118(6); S.I.

2017/765, reg. 2(aa) F688 S. 393(6)(aa) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 97(a) (with Sch. 3 para. 2) F689 S. 393(6)(ba) inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 83(4), 118(2) F690 Words in s. 393(6)(d) substituted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 97(b) (with Sch. 3 para. 2) F691 Words in s. 393(8) substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013

(Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 164(1)(c) (with art. 3)

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Modifications etc. (not altering text) C50 S. 393 applied (20.7.2004) by Contracting Out (Functions relating to Broadcast Advertising) and

Specification of Relevant Functions Order 2004 (S.I. 2004/1975), arts. 1, 11(1) (with art. 5)

Commencement Information I560 S. 393(1)(a)(b)(2)-(4)(5)(a)-(i)(l)-(p)(6)(b)-(d)(8)-(12) in force at 25.7.2003 for specified purposes by

S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I561 S. 393(1)(a) (b) (2)-(4) (5)(a)-(i) (l)-(p) (6)(b)-(d) (8)-(12) in force at 29.12.2003 in so far as not

already in force by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11) I562 S. 393(1)(c)(d)(5)(j)(k)(7) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11) I563 S. 393(6)(a) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I564 S. 393(6)(a) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch. 2

(with art. 11)

Notifications etc. and electronic working

394 Service of notifications and other documents

(1) This section applies where provision made (in whatever terms) by or under an enactment specified in subsection (2) authorises or requires—

(a) a notification to be given to any person; or (b) a document of any other description (including a copy of a document) to be

sent to any person.

(2) Those enactments are— (a) this Act; (b) the Office of Communications Act 2002 (c. 11);

F692(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F693(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) the 1990 Act; F694... (f) the 1996 Act.

[F695(g) Part 3 of the Postal Services Act 2011.]

(3) The notification or document may be given or sent to the person in question— (a) by delivering it to him; (b) by leaving it at his proper address; or (c) by sending it by post to him at that address.

(4) The notification or document may be given or sent to a body corporate by being given or sent to the secretary or clerk of that body.

(5) The notification or document may be given or sent to a firm by being given or sent to— (a) a partner in the firm; or (b) a person having the control or management of the partnership business.

(6) The notification or document may be given or sent to an unincorporated body or association by being given or sent to a member of the governing body of the body or association.

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(7) For the purposes of this section and section 7 of the Interpretation Act 1978 (c. 30) (service of documents by post) in its application to this section, the proper address of a person is—

(a) in the case of body corporate, the address of the registered or principal office of the body;

(b) in the case of a firm, unincorporated body or association, the address of the principal office of the partnership, body or association;

(c) in the case of a person to whom the notification or other document is given or sent in reliance on any of subsections (4) to (6), the proper address of the body corporate, firm or (as the case may be) other body or association in question; and

(d) in any other case, the last known address of the person in question.

(8) In the case of— (a) a company registered outside the United Kingdom, (b) a firm carrying on business outside the United Kingdom, or (c) an unincorporated body or association with offices outside the United

Kingdom, the references in subsection (7) to its principal office include references to its principal office within the United Kingdom (if any).

(9) In this section— “document” includes anything in writing; and “notification” includes notice; and references in this section to giving or sending a notification or other

document to a person include references to transmitting it to him and to serving it on him.

(10) This section has effect subject to section 395.

[F696(11) In its application to Schedule 3A this section is subject to paragraph 91 of that Schedule.]

Textual Amendments F692 S. 394(2)(c) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1) F693 S. 394(2)(d) omitted (28.12.2017) by virtue of Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3

para. 46(2); S.I. 2017/1286, reg. 2(d) F694 Word in s. 394(2)(e) omitted (1.10.2011) by virtue of Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch.

12 para. 65(a); S.I. 2011/2329, art. 3 F695 S. 394(2)(g) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 65(b);

S.I. 2011/2329, art. 3 F696 S. 394(11) inserted (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 46(3);

S.I. 2017/1286, reg. 2(d)

Modifications etc. (not altering text) C51 Ss. 394, 395 applied (31.7.2016) by The Communications (Access to Infrastructure) Regulations 2016

(S.I. 2016/700), regs. 1, 23

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C52 S. 394(2)(c) modified (temp.) (8.12.2003) by The Office of Communications Act 2002 (Commencement No. 3) and Communications Act 2003 (Commencement No. 2) Order 2003 (S.I. 2003/3142), art. 3(3)(c) (with art. 11)

Commencement Information I565 S. 394(1)(2)(a)-(d)(3)-(10) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2),

2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I566 S. 394(1) (2)(a)-(d) (3)-(10) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142,

art. 3(1), Sch. 1 (with art. 11) I567 S. 394(2)(e)(f) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

395 Notifications and documents in electronic form

(1) This section applies where— (a) section 394 authorises the giving or sending of a notification or other

document by its delivery to a particular person (“the recipient”); and (b) the notification or other document is transmitted to the recipient—

(i) by means of an electronic communications network; or (ii) by other means but in a form that nevertheless requires the use of

apparatus by the recipient to render it intelligible.

(2) The transmission has effect for the purposes of the enactments specified in section 394(2) as a delivery of the notification or other document to the recipient, but only if the requirements imposed by or under this section are complied with.

(3) Where the recipient is OFCOM— (a) they must have indicated their willingness to receive the notification or other

document in a manner mentioned in subsection (1)(b); (b) the transmission must be made in such manner and satisfy such other

conditions as they may require; and (c) the notification or other document must take such form as they may require.

(4) Where the person making the transmission is OFCOM, they may (subject to subsection (5)) determine—

(a) the manner in which the transmission is made; and (b) the form in which the notification or other document is transmitted.

(5) Where the recipient is a person other than OFCOM— (a) the recipient, or (b) the person on whose behalf the recipient receives the notification or other

document, must have indicated to the person making the transmission the recipient’s willingness to receive notifications or documents transmitted in the form and manner used.

(6) An indication to any person for the purposes of subsection (5)— (a) must be given to that person in such manner as he may require; (b) may be a general indication or one that is limited to notifications or documents

of a particular description; (c) must state the address to be used and must be accompanied by such other

information as that person requires for the making of the transmission; and

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(d) may be modified or withdrawn at any time by a notice given to that person in such manner as he may require.

[F697(6A) Subsections (5) and (6) do not apply in relation to a notification or other document given by OFCOM under Part 1 or Chapter 1 of Part 2 to the European Commission, BEREC or the regulatory authorities of member States (within the meaning of that Chapter).]

(7) An indication, requirement or determination given, imposed or made by OFCOM for the purposes of this section is to be given, imposed or made by being published in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it.

(8) Subsection (9) of section 394 applies for the purposes of this section as it applies for the purposes of that section.

Textual Amendments F697 S. 395(6A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 98 (with Sch. 3 para. 2)

Modifications etc. (not altering text) C51 Ss. 394, 395 applied (31.7.2016) by The Communications (Access to Infrastructure) Regulations 2016

(S.I. 2016/700), regs. 1, 23

Commencement Information I568 S. 395 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I569 S. 395 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

396 Timing and location of things done electronically

(1) The Secretary of State may by order make provision specifying, for the purposes of the enactments specified in section 394(2), the manner of determining—

(a) the times at which things done under those enactments by means of electronic communications networks are done; and

(b) the places at which such things are so done, and at which things transmitted by means of such networks are received.

(2) The provision made by subsection (1) may include provision as to the country or territory in which an electronic address is to be treated as located.

(3) An order made by the Secretary of State may also make provision about the manner of proving in any legal proceedings—

(a) that something done by means of an electronic communications network satisfies the requirements of the enactments specified in section 394(2) for the doing of that thing; and

(b) the matters mentioned in subsection (1)(a) and (b).

(4) An order under this section may provide for such presumptions to apply (whether conclusive or not) as the Secretary of State considers appropriate.

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Commencement Information I570 S. 396 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I571 S. 396 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Other miscellaneous provisions

397 Purchase of Duchy of Lancaster land

(1) The Chancellor and Council of the Duchy of Lancaster may, if they think fit, agree with a person who provides a public electronic communications network for the sale, and absolutely make sale, for such sum of money as appears to them sufficient consideration for the same, of any land which—

(a) belongs to Her Majesty in right of the Duchy of Lancaster; and (b) is land which that person seeks to acquire for, or in connection with, the

provision of his network.

(2) In this section “public electronic communications network” has the same meaning as in Chapter 1 of Part 2.

Commencement Information I572 S. 397 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I573 S. 397 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

398 Repeal of certain provisions of the Telecommunications Act 1984

(1) The Telecommunications Act 1984 (c. 12) shall be amended as follows.

(2) In Part 5 (transfer of undertakings of British Telecommunications), the following provisions (which include spent provisions) shall cease to have effect—

(a) section 60; (b) section 61(1) to (6); (c) section 62; (d) section 63(1) to (4); (e) sections 64 to 67; (f) section 69 to 71; (g) sections 72(2), (4) and (5); and (h) section 73.

(3) In section 68(2) (liability of Secretary of State on winding up), after “any outstanding liability of the successor company” there shall be inserted “ for the payment of pensions ”.

(4) In Part 7 (miscellaneous and supplemental) the following provisions shall cease to have effect—

(a) section 93 (grants to promote interests of disabled persons); and

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(b) section 97 (contributions by local authorities towards the provision of telecommunications facilities).

Commencement Information I574 S. 398 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I575 S. 398 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Supplemental

399 Expenses

There shall be paid out of money provided by Parliament— (a) any expenditure incurred by the Secretary of State for or in connection with

the carrying out of any of his functions under this Act; and (b) any increase attributable to this Act in the sums which are payable out of

money so provided under any other Act.

Commencement Information I576 S. 399 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I577 S. 399 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

400 Destination of licence fees and penalties

(1) This section applies (subject to section 401) to the following amounts— (a) an amount paid to OFCOM in respect of a penalty imposed by them under

Chapter 1 of Part 2 (including a penalty imposed by virtue of section 191(5)); (b) so much of an amount paid to OFCOM under numbering conditions in respect

of an allocation of telephone numbers as is an amount determined by reference to an indication given in response to an invitation such as is mentioned in section 58(5)(a);

(c) an amount paid to OFCOM in pursuance of an obligation imposed by or under [F698Chapter 1 or 2 of Part 2 of the Wireless Telegraphy Act 2006] ;

(d) an amount paid to OFCOM in respect of a penalty imposed by them under [F699section 42 F700... [F701 or Part 2A ] of that Act] ;

[F702(da) an amount paid to OFCOM in respect of a fee charged under section 53D of that Act;]

(e) a cash bid amount paid to OFCOM under a Broadcasting Act licence for the first year falling within the period for which the licence is in force;

(f) an amount paid to OFCOM under such a licence for a subsequent year as the amount equal to a cash bid amount increased by the appropriate percentage;

(g) an amount paid to OFCOM under such a licence as an amount representing a percentage of relevant revenue for an accounting period;

(h) an amount paid to OFCOM in respect of a penalty imposed by them under Part 1 or 3 of the 1990 Act, Part 1 or 2 of the 1996 Act or Part 3 of this Act.

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[F703(i) an amount paid to OFCOM in respect of a penalty imposed by them under Part 3 of the Postal Services Act 2011.]

(2) Where OFCOM receive an amount to which this section applies, it must be paid into the appropriate Consolidated Fund; but this subsection does not apply to an amount which is required by OFCOM for making an adjustment in respect of an overpayment.

(3) The reference in subsection (2) to the payment of an amount into the appropriate Consolidated Fund—

(a) in the case of an amount received in respect of matters appearing to OFCOM to have no connection with Northern Ireland, is a reference to the payment of the amount into the Consolidated Fund of the United Kingdom;

(b) in the case of an amount received in respect of matters appearing to OFCOM to have a connection with Northern Ireland but no connection with the rest of the United Kingdom, is a reference to the payment of the amount into the Consolidated Fund of Northern Ireland; and

(c) in any other case, is a reference to the payment of the amount, in such proportions as OFCOM consider appropriate, into each of those Funds.

(4) OFCOM must, in respect of each financial year, prepare an account showing— (a) the amounts to which this section applies that have been received by them

during that year; (b) the sums paid into the Consolidated Funds of the United Kingdom and

Northern Ireland respectively under this section in respect of those amounts; (c) the aggregate amount of the sums received by them during that year that is

retained in accordance with a statement [F704 under section 401 for meeting the costs set out in the statement in accordance with subsection (1)(b) ] of that section during that year;

(d) the aggregate amount that they estimate will fall to be so retained out of amounts due to them and likely to be paid or recovered; and

(e) the cost to OFCOM of carrying out during that year the functions in respect of which amounts are or are to be retained in accordance with such a statement.

(5) OFCOM must send that account to the Comptroller and Auditor General not later than the end of the month of November following the financial year to which it relates.

(6) The Comptroller and Auditor General must examine, certify and report on the account and lay copies of it, together with his report, before each House of Parliament.

(7) References in this section to penalties imposed by OFCOM under Part 3 of this Act include references to penalties which the BBC is liable to pay to OFCOM by virtue of section 198(3).

(8) In this section— “the appropriate percentage” has the same meaning as in section 19 of the

1990 Act; “cash bid amount” means an amount specified in a cash bid for a

Broadcasting Act licence or the amount determined by OFCOM for the purposes of any provision of the 1990 Act or this Part to be what would have been the amount of a cash bid for a licence;

“financial year” has the same meaning as in the Schedule to the Office of Communications Act 2002 (c. 11);

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“numbering conditions” means conditions the setting of which is authorised by section 58 or 59; and

“relevant revenue” means any of the following— (a) the amount which for the purposes of section 19, 52(1), 102(1) or 118 (1)

of the 1990 Act is the amount of qualifying revenue for an accounting period;

(b) the amount which for the purposes of section 13(1) or 55(1) of the 1996 Act is the amount of multiplex revenue for an accounting period; or

(c) an amount which for the purposes of paragraph 7 of Schedule 10 to this Act is the amount of qualifying revenue for an accounting period.

Textual Amendments F698 Words in s. 400(1)(c) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 32(a) F699 Words in s. 400(1)(d) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 32(b) F700 Words in s. 400(1)(d) omitted (27.6.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 9(10),

118(2) (with s. 9(13)) F701 Words in s. 400(1)(d) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 8(4)(a), 118(6);

S.I. 2017/765, reg. 2(c) F702 S. 400(1)(da) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 8(4)(b), 118(6); S.I.

2017/765, reg. 2(c) F703 S. 400(1)(i) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 66; S.I.

2011/2329, art. 3 F704 Words in s. 400(4)(c) substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 100(2), 118(6);

S.I. 2017/765, reg. 2(bb)

Commencement Information I578 S. 400 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

PROSPECTIVE

401 [F705 Retention by OFCOM of amounts paid under Wireless Telegraphy Act 2006 ]

[F706(1) OFCOM have power to make a statement setting out— (a) the principles under which they may retain any or all of the amounts paid to

them— (i) in pursuance of obligations imposed by or under Chapter 1 or 2 of

Part 2 of the Wireless Telegraphy Act 2006; (ii) in respect of fees charged under section 53D of that Act, and

(b) the costs in respect of which the amounts may be retained (which may include costs other than those incurred in the exercise of their functions under those provisions).]

(2) Where such a statement F707... authorises the retention of an amount, OFCOM are not required to pay it into the appropriate Consolidated Fund in accordance with section 400.

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[F708(3) The provision contained in a statement made by OFCOM under this section must be such as appears to them likely to secure, on the basis of such estimates of the likely costs as it is practicable to make, that the amounts retained by OFCOM are objectively justifiable and proportionate to the costs in respect of which they are retained.]

F708(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F708(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) A statement under this section may include provision which, for the purposes of F709... the statement and of the preparation of accounts in accordance with section 400(4), requires an amount actually received in one year—

(a) to be treated as referable to costs incurred in that year and in one or more subsequent years; and

(b) to be brought into account, in each of those years, in accordance with an apportionment for which provision is made in the statement.

(7) A deficit or surplus shown (after applying this subsection for all previous years) by an account prepared under section 400(4) is to be carried forward and taken into account in determining what is required by OFCOM in relation to the following year for meeting the costs [F710 set out in the statement in accordance with subsection (1) (b) ] .

(8) A statement F711... under this section— (a) if it is expressed to apply for a limited period, does not apply to any amounts

paid to OFCOM after the end of that period; and (b) in any event, does not apply to amounts paid to them after a withdrawal of

the statement takes effect.

(9) OFCOM may revise a statement made under this section.

(10) The consent of the Treasury [F712 and the Secretary of State ] is required for the making, revision or withdrawal of a statement under this section.

(11) Where OFCOM make or revise a statement of this section they must publish so much of the statement or revised statement as appears to them necessary for demonstrating that the statement or revision complies with subsection (3).

Textual Amendments F705 S. 401 heading substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 100(10), 118(6); S.I.

2017/765, reg. 2(bb) F706 S. 401(1) substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 100(3), 118(6); S.I.

2017/765, reg. 2(bb) F707 Words in s. 401(2) omitted (31.7.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 100(4),

118(6); S.I. 2017/765, reg. 2(bb) F708 S. 401(3) substituted for S. 401(3)-(5) (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 100(5),

118(6); S.I. 2017/765, reg. 2(bb) F709 Words in s. 401(6) omitted (31.7.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 100(6),

118(6); S.I. 2017/765, reg. 2(bb) F710 Words in s. 401(7) substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 100(7), 118(6);

S.I. 2017/765, reg. 2(bb)

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F711 Words in s. 401(8) omitted (31.7.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 100(8), 118(6); S.I. 2017/765, reg. 2(bb)

F712 Words in s. 401(10) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 100(9), 118(6); S.I. 2017/765, reg. 2(bb)

402 Power of Secretary of State to make orders and regulations

(1) Every power conferred by this Act on the Secretary of State to make orders or regulations, other than the powers conferred by Schedule 4, is a power exercisable by statutory instrument.

(2) A statutory instrument containing an order or regulations made in exercise of any such power, other than—

(a) an order under section 31 or 411 [F713 or regulations under section 368BC ] , [F714(aa) regulations under paragraph 95 of Schedule 3A which amend, repeal or

modify the application of primary legislation,] F715(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c) any order that is required, by any provision of this Act, to be laid before Parliament and approved in draft,

shall be subject to annulment in pursuance of a resolution of either House of Parliament.

[F716(2A) A statutory instrument containing (whether alone or with other provisions) regulations under paragraph 95 of Schedule 3A which amend, repeal or modify the application of primary legislation, may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.]

(3) Every power of the Secretary of State to make an order or regulations under this Act, other than an order under section 31 or 411 or an order made in exercise of a power conferred by Schedule 4, includes power—

(a) to make different provision for different cases (including different provision in respect of different areas);

(b) to make provision subject to such exemptions and exceptions as the Secretary of State thinks fit; and

(c) to make such incidental, supplemental, consequential and transitional provision as the Secretary of State thinks fit.

[F717(4) In this section “primary legislation” means— (a) an Act of Parliament, (b) a Measure or Act of the National Assembly for Wales, (c) an Act of the Scottish Parliament, or (d) Northern Ireland legislation.]

Textual Amendments F713 Words in s. 402(2)(a) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 93(8), 118(6); S.I.

2017/765, reg. 2(y) F714 S. 402(2)(aa) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 47(2);

S.I. 2017/765, reg. 2(jj) F715 S. 402(2)(b) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

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F716 S. 402(2A) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 47(3); S.I. 2017/765, reg. 2(jj)

F717 S. 402(4) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 47(4); S.I. 2017/765, reg. 2(jj)

Commencement Information I579 S. 402 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I580 S. 402 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

403 Regulations and orders made by OFCOM

(1) This section applies to any power of OFCOM to make regulations or to make an order or scheme if that power is one to which this section is expressly applied.

(2) The powers to which this section applies shall be exercisable by statutory instrument, and the Statutory Instruments Act 1946 (c. 36) is to apply in relation to those powers as if OFCOM were a Minister of the Crown.

(3) Where an instrument made under a power to which this section applies falls to be laid before Parliament, OFCOM must, immediately after it is made, send it to the Secretary of State for laying by him.

(4) Before making any regulations or order under a power to which this section applies, OFCOM must—

(a) give a notice of their proposal to do so to such persons representative of the persons appearing to OFCOM to be likely to be affected by the implementation of the proposal as OFCOM think fit;

(b) publish notice of their proposal in such manner as they consider appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by it and are not given notice by virtue of paragraph (a); and

(c) consider any representations that are made to OFCOM, before the time specified in the notice.

(5) A notice for the purposes of subsection (4) must— (a) state that OFCOM propose to make the regulations or order in question; (b) set out the general effect of the regulations or order; (c) specify an address from which a copy of the proposed regulations or order

may be obtained; and (d) specify a time before which any representations with respect to the proposal

must be made to OFCOM.

(6) The time specified for the purposes of subsection (5)(d) must be no earlier than the end of the period of one month beginning with the day after the latest day on which the notice is given or published for the purposes of subsection (4).

(7) Every power of OFCOM to which this section applies includes power— (a) to make different provision for different cases (including different provision

in respect of different areas); (b) to make provision subject to such exemptions and exceptions as OFCOM

think fit; and

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(c) to make such incidental, supplemental, consequential and transitional provision as OFCOM think fit.

(8) The Documentary Evidence Act 1868 (c. 37) (proof of orders and regulations etc.) shall have effect as if—

(a) OFCOM were included in the first column of the Schedule to that Act; (b) OFCOM and persons authorised to act on their behalf were mentioned in the

second column of that Schedule.

Modifications etc. (not altering text) C53 S. 403 applied by 1998 c. 6, s. 6 (as substituted (25.7.2003 for specified purposes, 29.12.2003 in so far

as not already in force) by Communications Act 2003 (c. 21), s. 411(2), Sch. 17 para. 150 (with Sch. 18); S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11))

C54 S. 403 applied by 1996 c. 55, s. 104ZA(3) (as inserted (29.12.2003) by Communications Act 2003 (c. 21), ss. 302(1), 411(2) (with Sch. 18 para. 51(3)); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11))

C55 S. 403 applied (1.10.2011) by Postal Services Act 2011 (c. 5), ss. 63, 93(2), (3); S.I. 2011/2329, art. 3

Commencement Information I581 S. 403 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I582 S. 403 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

404 Criminal liability of company directors etc.

(1) Where an offence under any enactment to which this section applies is committed by a body corporate and is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—

(a) a director, manager, secretary or other similar officer of the body corporate, or (b) a person who was purporting to act in any such capacity,

he (as well as the body corporate) is guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(2) Where an offence under any enactment to which this section applies— (a) is committed by a Scottish firm, and (b) is proved to have been committed with the consent or connivance of, or to be

attributable to any neglect on the part of a partner of the firm, he (as well as the firm) is guilty of that offence and shall be liable to be proceeded against and punished accordingly.

(3) In this section “director”, in relation to a body corporate whose affairs are managed by its members, means a member of the body corporate.

(4) The enactments to which this section applies are every enactment contained in— (a) this Act;

F718(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F718(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . F719(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(e) the Telecommunications Act 1984 (c. 12)[F720; or

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(f) Part 3 of the Postal Services Act 2011.] F721(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F718 S. 404(4)(b)(c) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1

(with Sch. 8 Pt. 1) F719 S. 404(4)(d) repealed (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(2),

Sch. 21 para. 2 F720 S. 404(4)(f) and word inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12

para. 67(b); S.I. 2011/2329, art. 3 F721 S. 404(5) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I583 S. 404 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I584 S. 404 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

405 General interpretation

(1) In this Act, except in so far as the context otherwise requires— “the 1990 Act” means the Broadcasting Act 1990 (c. 42); “the 1996 Act” means the Broadcasting Act 1996 (c. 55); “access” is to be construed in accordance with subsection (4); “apparatus” includes any equipment, machinery or device and any wire or

cable and the casing or coating for any wire or cable; “associated facility” has the meaning given by section 32; [F722“the Audiovisual Media Services Directive” means Directive 2010/13/

EU of the European Parliament and of the Council of 10 March 2010 on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the provision of audiovisual media services;]

“the BBC” means the British Broadcasting Corporation; [F723“BEREC” means the Body of European Regulators for Electronic

Communications;] “body” (without more) means any body or association of persons, whether

corporate or unincorporate, including a firm; “broadcast” means broadcast by wireless telegraphy, and cognate

expressions are to be construed accordingly; “Broadcasting Act licence” means a licence under Part 1 or 3 of the 1990

Act or under Part 1 or 2 of the 1996 Act; “business” includes any trade or profession; “C4C” means the Channel Four Television Corporation; “communications provider” means a person who (within the meaning of

section 32(4)) provides an electronic communications network or an electronic communications service;

“the Consumer Panel” means the panel established under section 16;

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“consumers” has the meaning given by subsection (5); “Content Board” means the committee of OFCOM established and

maintained under section 12; “contravention” includes a failure to comply, and cognate expressions are to

be construed accordingly; “customers”, in relation to a communications provider or a person who

makes an associated facility available, means the following (including any of them whose use or potential use of the network, service or facility is for the purposes of, or in connection with, a business)—

(a) the persons to whom the network, service or facility is provided or made available in the course of any business carried on as such by the provider or person who makes it available;

(b) the persons to whom the communications provider or person making the facility available is seeking to secure that the network, service or facility is so provided or made available;

(c) the persons who wish to be so provided with the network or service, or to have the facility so made available, or who are likely to seek to become persons to whom the network, service or facility is so provided or made available;

“distribute”, in relation to a service, does not include broadcast, and cognate expressions shall be construed accordingly;

“electronic communications network” and “electronic communications service” have the meanings given by section 32;

“enactment” includes any enactment comprised in an Act of the Scottish Parliament or in any Northern Ireland legislation;

“the enactments relating to the management of the radio spectrum” means— (a) [F724the Wireless Telegraphy Act 2006; and] (g) [F725the provisions of this Act so far as relating to that Act;]

“frequency” includes frequency band; “holder”, in relation to a Broadcasting Act licence, is to be construed in

accordance with subsection (7), and cognate expressions are to be construed accordingly;

“information” includes accounts, estimates and projections and any document;

“intelligible” is to be construed in accordance with subsection (9); “international obligation of the United Kingdom” includes any [F3EU]

obligation and any obligation which will or may arise under any international agreement or arrangements to which the United Kingdom is a party;

“modification” includes omissions, alterations and additions, and cognate expressions are to be construed accordingly;

“OFCOM” means the Office of Communications; [F726“on-demand programme service” has the meaning given by

section 368A(1);] “other member State” means a member State other than the United Kingdom; [F727“postal services” has the meaning given by section 27 of the Postal

Services Act 2011;] “pre-commencement regulator” means any of the following—

(a) the Broadcasting Standards Commission;

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(b) the Director General of Telecommunications; (c) the Independent Television Commission; (d) the Radio Authority;

“programme” includes an advertisement and, in relation to a service, anything included in that service [F728which is an individual item (irrespective of length)];

“programme service” means— (a) a television programme service; (b) the public teletext service; (c) an additional television service; (d) a digital additional television service; (e) a radio programme service; or (f) a sound service provided by the BBC;

and expressions used in this definition and in Part 3 have the same meanings in this definition as in that Part;

“provide” and cognate expressions, in relation to an electronic communications network, electronic communications service or associated facilities, are to be construed in accordance with section 32(4);

“purposes of public service television broadcasting in the United Kingdom” shall be construed in accordance with subsection (4) of section 264 and subsections (5) and (6) of that section shall apply for the purposes of any provision of this Act referring to such purposes as they apply for the purposes of a report under that section;

“the radio transfer date” means the date on which the Radio Authority’s functions under Part 3 of the 1990 Act and Part 2 of the 1996 Act are transferred under this Act to OFCOM;

“representation”, in relation to a proposal or the contents of any notice or notification, includes an objection to the proposal or (as the case may be) to the whole or any part of those contents;

“subordinate legislation” means— (a) any subordinate legislation, within the meaning of the Interpretation Act

1978 (c. 30); or (b) any statutory rules (within the meaning of the Statutory Rules (Northern

Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)); “television and radio services” means—

(a) programme services apart from those provided by the BBC; and (b) services provided by the BBC in relation to which OFCOM have

functions; “television programme” means any programme (with or without sounds)

which— (a) is produced wholly or partly to be seen on television; and (b) consists of moving or still images or of legible text or of a combination

of those things; “the television transfer date” means the date on which the Independent

Television Commission’s functions under Part 1 of the 1990 Act and Part 1 of the 1996 Act are transferred under this Act to OFCOM;

“TV licence” means a licence for the purposes of section 363;

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“the Welsh Authority” means the authority whose name is, by virtue of section 56(1) of the 1990 Act, Sianel Pedwar Cymru;

[F729“wireless telegraphy” has the same meaning as in the Wireless Telegraphy Act 2006;]

[F730“wireless telegraphy licence” means a licence granted under section 8 of the Wireless Telegraphy Act 2006.]

(2) Any power under this Act to provide for the manner in which anything is to be done includes power to provide for the form in which it is to be done.

(3) References in this Act to OFCOM’s functions under an enactment include references to their power to do anything which appears to them to be incidental or conducive to the carrying out of their functions under that enactment.

(4) References in this Act to access— (a) in relation to an electronic communications network or electronic

communications service, are references to the opportunity of making use of the network or service; and

(b) in relation to a programme service, are references to the opportunity of viewing in an intelligible form the programmes included in the service or (as the case may be) of listening to them in such a form.

(5) For the purposes of this Act persons are consumers in a market for a service, facility or apparatus, if they are—

(a) persons to whom the service, facility or apparatus is provided, made available or supplied (whether in their personal capacity or for the purposes of, or in connection with, their businesses);

(b) persons for whose benefit the service, facility or apparatus is provided, made available or supplied or for whose benefit persons falling within paragraph (a) arrange for it to be provided, made available or supplied;

(c) persons whom the person providing the service or making the facility available, or the supplier of the apparatus, is seeking to make into persons falling within paragraph (a) or (b); or

(d) persons who wish to become persons falling within paragraph (a) or (b) or who are likely to seek to become persons falling within one or both of those paragraphs.

[F731(5A) References in this Act to consumers in a market for a service include, where the service is a postal service, addressees.]

(6) References in this Act to services in relation to which OFCOM have functions include references to any services in relation to which OFCOM are required to set standards under section 319.

(7) In this Act references, in relation to a time or a period, to the holder of a Broadcasting Act licence or of a particular description of such licence are references to the person who held that licence at that time or (as the case may be) to every person who held that licence for the whole or a part of that period.

(8) For the purposes of this Act the fact that a service is not in an intelligible form shall be disregarded, except where express provision is made to the contrary, in determining whether it has been provided—

(a) for general reception; (b) for reception by particular persons; or

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(c) for reception at a particular place or in a particular area.

(9) For the purposes of this Act something is not to be regarded as in an intelligible form if it cannot readily be understood without being decrypted or having some comparable process applied to it.

Textual Amendments F3 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5)) F722 Words in s. 405(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 50(a) (with Pt. 7) F723 Words in s. 405(1) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 99 (with Sch. 3 para. 2) F724 Words in s. 405(1) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 34(2)(a) F725 Words in s. 405(1) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 34(2)(b) F726 Words in s. 405(1) inserted (19.12.2009) by Audiovisual Media Services Regulations 2009 (S.I.

2009/2979), regs. 1(1), 11(b) F727 Words in s. 405(1) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para.

68(2); S.I. 2011/2329, art. 3 F728 Words in s. 405(1) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 50(b) (with Pt. 7) F729 Words in s. 405(1) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 34(3) F730 Words in s. 405(1) substituted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 34(4) F731 S. 405(5A) inserted (1.10.2011) by Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12 para. 68(3);

S.I. 2011/2329, art. 3

406 Minor and consequential amendments, transitionals and repeals

(1) Schedule 17 (which provides for minor and consequential amendments in connection with the other provision made by this Act) shall have effect.

(2) The Secretary of State may by order make such consequential modifications of any enactment as—

(a) correspond to amendments of any other enactment that are made by Schedule 17; and

(b) appear to him to be appropriate in consequence of that provision of this Act.

(3) The Secretary of State may by order make any provision that he thinks fit for substituting a reference in any enactment or subordinate legislation to something defined for the purposes of this Act, or of any provisions contained in this Act, for a reference to something equivalent or similar that was defined for the purposes of the Telecommunications Act 1984 (c. 12), or of provisions contained in that Act.

(4) The Secretary of State may by order make such further consequential modifications of—

(a) an enactment extending only to Scotland, (b) an enactment extending only to Northern Ireland,

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(c) a local enactment, or (d) the provision of any subordinate legislation,

as appear to him to be appropriate in consequence of any provision of this Act.

(5) If it appears to the Secretary of State that a local enactment contains a provision which corresponds to a provision the effect of which is modified by an amendment in Schedule 17 of this Act of a listed provision, it shall be his duty to exercise his powers under this section to secure that a modification corresponding to that effected by that amendment is made to the local enactment.

(6) Schedule 18 (which contains transitional provisions in connection with the other provision made by this Act) shall have effect.

(7) Subject to the provisions of Schedule 18 and to the savings and commencement provisions set out in the notes to Schedule 19, the enactments and instruments specified in Schedule 19 (which include provisions that are spent or have ceased to be of any practical utility) are hereby repealed or revoked to the extent specified in the second column of that Schedule.

(8) In this section “local enactment” means— (a) a local or personal Act; (b) a public general Act relating only to London; (c) an order or scheme made under an Act which has been confirmed by

Parliament or brought into operation in accordance with special Parliamentary procedure;

(d) an enactment in a public general Act but amending a local enactment.

(9) In subsection (5) “listed provision” means the provisions of the following enactments—

(a) sections 11 and 14 of the London Overground Wires, etc. Act 1933 (c. xliv); (b) section 7(6) of the London County Council (General Powers) Act 1949 (c. lv); (c) section 17(2) of the Lough Neagh and Lower Bann Drainage and Navigation

Act (Northern Ireland) 1955 (c. 15 (N.I.)); (d) section 17(4)(a) of the London County Council (General Powers) Act 1963

(c. xvii); (e) section 7(6) of the Greater London Council (General Powers) Act 1969 (c. lii); (f) section 20(1)(a) of the Thames Barrier and Flood Prevention Act 1972 (c. xlv); (g) section 32 of and paragraph 3(2)(b) of Schedule 2 and Part 10 of Schedule 7

to the Channel Tunnel Act 1987 (c. 53); (h) section 25(1) of the Norfolk and Suffolk Broads Act 1988 (c. 4); (i) section 5 of the London Local Authorities (No. 2) Act 1990 (c. xxx); (j) paragraphs 1(c) and 16 of Schedule 2, paragraph 3(2)(c) of Schedule 4 and

paragraph 21 of Schedule 7 to the Cardiff Bay Barrage Act 1993 (c. 42); (k) section 3(1) of the British Waterways Act 1995 (c. i); (l) paragraphs 6(4) and 15(4) of Schedule 6 and Part 4 of Schedule 15 to the

Channel Tunnel Rail Link Act 1996 (c. 61).

(10) This section has effect subject to section 408.

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Commencement Information I585 S. 406 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I586 S. 406(1)(6)(7) in force at 18.9.2003 for specified purposes by S.I. 2003/1900, art. 2(2), Sch. 2 I587 S. 406(1)(6)(7) in force at 29.12.2003 for specified purposes by S.I. 2003/3142, art. 3(1), Sch. 1 (with

art. 11) I588 S. 406(1)(7) in force at 1.4.2004 for specified purposes by S.I. 2003/3142, art. 4(2), Sch. 2 (with art.

11) I589 S. 406(2)-(5) (8)-(10) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art.

3(2) (with art. 11) I590 S. 406(6) in force at 1.4.2004 in so far as not already in force by S.I. 2003/3142, art. 4(2), Sch. 2 (with

art. 11)

407 Pre-consolidation amendments

(1) The Secretary of State may by order make such modifications of— F732(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) the enactments relating to broadcasting, and (c) enactments referring to enactments falling within paragraph F733... (b),

as in his opinion facilitate, or are otherwise desirable in connection with, the consolidation of those enactments or any of them.

(2) No order is to be made under this section unless a Bill for repealing and re-enacting— (a) the enactments modified by the order, or (b) enactments relating to matters connected with the matters to which enactments

modified by the order relate, has been presented to either House of Parliament.

(3) An order under this section is not to come into force until immediately before the commencement of the Act resulting from that Bill.

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

(5) In this section “the enactments relating to broadcasting” means— (a) the 1990 Act; (b) the 1996 Act; (c) Part 3 of this Act; and (d) the other provisions of this Act so far as relating to the 1990 Act, the 1996

Act or that Part.

Textual Amendments F732 S. 407(1)(a) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1) F733 Words in s. 407(1)(c) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9

Pt. 1 (with Sch. 8 Pt. 1)

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Commencement Information I591 S. 407 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

408 Transitional provision for anticipatory carrying out of functions

(1) This section applies where an order under section 411 bringing into force— (a) a provision of Part 1, 2 or 6, or (b) a provision of Chapter 1 of Part 5,

states that that provision is brought into force at a particular time for the purpose only of enabling specified networks and services functions, or specified spectrum functions, to be carried out during the transitional period by the Director General of Telecommunications or the Secretary of State.

(2) In relation to times falling in the transitional period, that provision is to have effect as if—

(a) references in that provision to OFCOM, and (b) references to OFCOM inserted by that provision in any other enactment,

were references, in accordance with subsection (3), to the Director General of Telecommunications or to the Secretary of State.

(3) The references have effect— (a) as references to the Director General of Telecommunications to the extent

that the provision is brought into force for the purpose of enabling specified networks and services functions to be carried out; and

(b) as references to the Secretary of State, to the extent that the provision is brought into force for the purpose of enabling specified spectrum functions to be carried out.

(4) An order bringing a provision into force as mentioned in subsection (1) may include provision specifying the extent to which it is to be taken, for the purposes of subsection (3), to have been brought into force for the purpose of enabling particular functions to be carried out.

(5) In relation to times after the end of the transitional period for a provision which has been brought into force for enabling specified functions to be carried out by the Director General of Telecommunications or the Secretary of State, anything which—

(a) was done, during that period, by or in relation to that Director or the Secretary of State, and

(b) was so done for the purposes of, or in connection with, the carrying out of those functions,

is to have effect as if had been done by or in relation to OFCOM.

(6) In this section “the transitional period”, in relation to a provision brought into force as mentioned in subsection (1) by an order under section 411, means the period which—

(a) begins with the time when it is so brought into force; and (b) ends with the time from which that order, or a subsequent order under that

section, brings the provision into force for the purpose of conferring on OFCOM the functions in question.

(7) In this section “networks and services functions” means any of the following functions of OFCOM under this Act—

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(a) their functions under sections 24 and 25; (b) their functions under Chapter 1 of Part 2; (c) their functions under Chapter 3 of Part 2, except to the extent that those

functions relate to— (i) disputes relating to rights or obligations conferred or imposed by

or under the enactments relating to the management of the radio spectrum; or

(ii) decisions made under those enactments; (d) their functions under Chapter 1 of Part 5, except to the extent that those

functions relate to broadcasting or related matters; (e) their functions under Schedule 18 to this Act in relation to the abolition of

licensing (within the meaning of that Schedule).

(8) In this section “spectrum functions” means— (a) the functions under the enactments relating to the management of the radio

spectrum which by virtue of this Act are conferred on OFCOM; and (b) the functions conferred on OFCOM by so much of Chapter 3 of Part 2 as

relates to the disputes and decisions mentioned in subsection (7)(c).

Subordinate Legislation Made P1 S. 408(1)(4) power partly exercised: 25.7.2003 and 18.9.2003 appointed for specified provisions and

purposes by {S.I. 2003/1900}, art. 2

Commencement Information I592 S. 408 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I593 S. 408 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

PROSPECTIVE

409 Modifications consequential on regulations implementing Directives

(1) This section applies if it appears to the Secretary of State that regulations under section 2 of the European Communities Act 1972 (c. 68) for giving effect to [F3EU] obligations imposed by the Communications Directives have come into force before the passing of this Act.

(2) The Secretary of State may by order— (a) repeal any relevant provision of this Act which appears to him to be

unnecessary, or to have become spent, in consequence of the regulations; (b) make such other modifications of the relevant provisions of this Act as he

considers appropriate in consequence of the regulations; (c) revoke provision made by the regulations; and (d) make transitory or transitional provision in relation to anything done by or

under the regulations.

(3) The Secretary of State’s power under this section includes power to make consequential amendments of enactments not contained in this Act.

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(4) In this section— “the Communications Directives” means—

(a) the Access Directive, that is to say, Directive 2002/19/EC of the European Parliament and of the Council on access to, and interconnection of, electronic communications networks and associated facilities;

(b) the Authorisation Directive, that is to say, Directive 2002/20/EC of the European Parliament and of the Council on the authorisation of electronic communications networks and services;

(c) the Framework Directive, that is to say, Directive 2002/21/EC of the European Parliament and of the Council on a common regulatory framework for electronic communications networks and services;

(d) the Universal Service Directive, that is to say, Directive 2002/22/EC of the European Parliament and of the Council on universal service and users' rights relating to electronic communications networks and services;

“relevant provision of this Act” means a provision contained in— (a) Part 1, 2 or 6; or (b) Chapter 1 of Part 5.

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

Textual Amendments F3 Words in Act substituted (22.4.2011) by The Treaty of Lisbon (Changes in Terminology) Order 2011

(S.I. 2011/1043), arts. 2, 3, 6 (with art. 3(2)(3), 4(2), 6(4)(5))

410 Application of enactments to territorial sea and other waters

(1) This section applies to— (a) provision made by or under Part 2 of this Act; (b) any provision of the enactments relating to the management of the radio

spectrum that are not contained in that Part [F734or the Wireless Telegraphy Act 2006] ; and

(c) any provision of Chapter 1 of Part 5 of this Act so far as it relates to a matter as respects which provision falling within paragraph (a) or (b) is made [F735or a matter as respects which the Wireless Telegraphy Act 2006 makes provision] .

(2) Her Majesty may by Order in Council provide— (a) for an area of the territorial sea to be treated, for the purposes of any provision

to which this section applies, as if it were situated in such part of the United Kingdom as may be specified in the Order; and

(b) for jurisdiction with respect to questions arising in relation to the territorial sea under any such provision to be conferred on courts in a part of the United Kingdom so specified.

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(3) An Order in Council under section 11 of the Petroleum Act 1998 (c. 17) [F736or section 87 of the Energy Act 2004] (application of civil law to offshore installations etc.) may make provision for treating—

(a) an installation with respect to which provision is made under that section and which is outside the territorial sea but in waters to which that section applies, and

(b) waters within 500 metres of the installation, as if for the purposes of provisions to which this section applies, they were situated in such part of the United Kingdom as is specified in the Order.

(4) The jurisdiction conferred on a court by an Order in Council under this section is in addition to any jurisdiction exercisable apart from this section by that or any other court.

(5) Subsection (3) of section 402 applies to the power to make an Order in Council under this section as it applies to any power of the Secretary of State to make an order under this Act, but as if references in that subsection to the Secretary of State were references to Her Majesty in Council.

(6) A statutory instrument containing an Order in Council under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

(7) In this section— “installation” includes any floating structure or device maintained on a

station by whatever means, and installations in transit; “the territorial sea” means the territorial sea adjacent to the United Kingdom.

Textual Amendments F734 Words in s. 410(1)(b) inserted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 35(a) F735 Words in s. 410(1)(c) inserted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7

para. 35(b) F736 Words in s. 410(3) inserted (5.10.2004) by virtue of Energy Act 2004 (c. 20), ss. 87(5), 198(2); S.I.

2004/2575, art. 2(1), Sch. 1

Commencement Information I594 S. 410 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I595 S. 410 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

411 Short title, commencement and extent

(1) This Act may be cited as the Communications Act 2003.

(2) This Act (except the provisions listed in subsection (3), which come into force on the passing of this Act) shall come into force on such day as the Secretary of State may by order appoint; and different days may be appointed under this subsection for different purposes.

(3) Those provisions are sections 31(1) to (4) and (6) and 405 and this section.

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(4) An order under subsection (2) may include provision making such transitional or transitory provision, in addition to that made by Schedule 18, as the Secretary of State considers appropriate in connection with the bringing into force of any provisions of this Act; and the power to make transitional or transitory provision includes power to make—

(a) different provision for different cases (including different provision in respect of different areas);

(b) provision subject to such exemptions and exceptions as the Secretary of State thinks fit; and

(c) such incidental, supplemental and consequential provision as he thinks fit.

(5) This Act extends to Northern Ireland.

(6) Subject to subsection (7), Her Majesty may by Order in Council extend the provisions of this Act, with such modifications as appear to Her Majesty in Council to be appropriate, to any of the Channel Islands or to the Isle of Man.

(7) Subsection (6) does not authorise the extension to any place of a provision of this Act so far as it gives effect to an amendment of an enactment that is not itself capable of being extended there in exercise of a power conferred on Her Majesty in Council.

(8) Subsection (3) of section 402 applies to the power to make an Order in Council under this section as it applies to any power of the Secretary of State to make an order under this Act, but as if references in that subsection to the Secretary of State were references to Her Majesty in Council.

Subordinate Legislation Made P2 S. 411(2)(4) power partly exercised: 25.7.2003 and 18.9.2003 appointed for specified provisions and

purposes by {S.I. 2003/1900}, art. 2; different dates appointed for further specified provisions and purposes by {S.I. 2003/3142}, arts. 2, 3, 4

Modifications etc. (not altering text) C56 S. 411(6): power to extend conferred (27.4.2017) by Broadcasting (Radio Multiplex Services) Act

2017 (c. 12), s. 2(2)(4)

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S C H E D U L E S

SCHEDULE 1 Section 2

FUNCTIONS TRANSFERRED TO OFCOM

Wireless telegraphy functions F7371 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F737 Sch. 1 para. 1 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

F7382 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F738 Sch. 1 para. 2 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

Commencement Information I596 Sch. 1 para. 2 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Functions in relation to the licensing etc. of television services 3 The following functions of the Independent Television Commission are transferred

to OFCOM— (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.

Commencement Information I597 Sch. 1 para. 3 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Functions in relation to C4C 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.

Commencement Information I598 Sch. 1 para. 4 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Functions in relation to the licensing of radio services 5 The following functions of the Radio Authority are transferred to OFCOM—

(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.

Commencement Information I599 Sch. 1 para. 5 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Functions in relation to the proscription of foreign satellite services 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.

Commencement Information I600 Sch. 1 para. 6 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Functions in relation to Gaelic broadcasting 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.

Commencement Information I601 Sch. 1 para. 7 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Functions in relation to the national television archive 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.

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Commencement Information I602 Sch. 1 para. 8 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Warrants to enter and search premises to enforce broadcasting licences provisions 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.

Commencement Information I603 Sch. 1 para. 9 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Variation of existing Channel 3 and Channel 5 licences 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.

Commencement Information I604 Sch. 1 para. 10 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Reports for the purposes of the review of digital broadcasting 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.

Commencement Information I605 Sch. 1 para. 11 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Functions in relation to reservation of digital capacity to the BBC 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.

Commencement Information I606 Sch. 1 para. 12 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Functions in relation to listed events 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.

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Commencement Information I607 Sch. 1 para. 13 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Functions relating to fairness and privacy in broadcasting 14 The following functions of the Broadcasting Standards Commission under Part 5

of the 1996 Act are transferred to OFCOM— (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.

Commencement Information I608 Sch. 1 para. 14 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

SCHEDULE 2 Section 30

TRANSFER SCHEMES

Contents of transfer scheme 1 (1) A transfer scheme—

(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.

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(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.

Commencement Information I609 Sch. 2 para. 1 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

Effect of transfer scheme 2 (1) Property transferred by a transfer scheme shall, on the coming into force of the

scheme, vest in OFCOM without further assurance.

(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

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(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.

Commencement Information I610 Sch. 2 para. 2 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

Retrospective modification of a transfer scheme 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.

(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.

Commencement Information I611 Sch. 2 para. 3 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

Compensation 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—

(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

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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

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(b) the Secretary of State.

Commencement Information I612 Sch. 2 para. 4 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

Stamp duty 5 (1) Stamp duty is not to be chargeable—

(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.

Commencement Information I613 Sch. 2 para. 5 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

Stamp duty land tax

[F7395A.(1) For the purposes of stamp duty land tax, a land transaction effected by, or for the purposes of, or for purposes connected with, a transfer scheme is exempt from charge.

(2) Relief under this paragraph must be claimed in a land transaction return or an amendment of such a return.

(3) In this paragraph— “land transaction” has the meaning given by section 43(1) of the Finance

Act 2003; “land transaction return” has the meaning given by section 76(1) of that

Act.]

Textual Amendments F739 Sch. 2 para. 5A inserted (1.12.2003) by The Stamp Duty Land Tax (Consequential Amendment of

Enactments) Regulations 2003 (S.I. 2003/2867), reg. 1, Sch. para. 33

Interpretation of Schedule 6 In this Schedule “transfer scheme” means a scheme made by a pre-commencement

regulator or by the Secretary of State under section 30.

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Commencement Information I614 Sch. 2 para. 6 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

F740SCHEDULE 3 Section 106

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F740 Sch. 3 repealed (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 48; S.I.

2017/1286, reg. 2(d)

[F741SCHEDULE 3A Section 106

THE ELECTRONIC COMMUNICATIONS CODE

Textual Amendments F741 Sch. 3A inserted (31.7.2017 for the purpose of making regulations under Sch. 3A para. 95, 22.11.2017

but only in relation to Sch. 3A para. 106, 28.12.2017 in so far as not already in force) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 1 (with Sch. 2); S.I. 2017/765, reg. 2(ii)(jj); S.I. 2017/1136, reg. 2; S.I. 2017/1286, reg. 2(b)

Modifications etc. (not altering text) C57 Sch. 3A applied by S.I. 1991/1220 (N.I. 11), art. 104(5) (as substituted (28.12.2017) by The

Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017 (S.I. 2017/1285), reg. 1(1), Sch. 1 para. 28(2)(c))

PART 1

KEY CONCEPTS

Introductory 1 (1) This Part defines some key concepts used in this code.

(2) For definitions of other terms used in this code, see— (a) paragraph 94 (meaning of “the court”). (b) paragraph 105 (meaning of “occupier”), (c) paragraph 108 (general interpretation), (d) section 32 (meaning of electronic communications networks and services),

and (e) section 405 (general interpretation).

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The operator 2 In this code “operator” means—

(a) where this code is applied in any person's case by a direction under section 106, that person, and

(b) where this code applies by virtue of section 106(3)(b), the Secretary of State or (as the case may be) the Northern Ireland department in question.

The code rights 3 For the purposes of this code a “code right”, in relation to an operator and any land,

is a right for the statutory purposes— (a) to install electronic communications apparatus on, under or over the land, (b) to keep installed electronic communications apparatus which is on, under

or over the land, (c) to inspect, maintain, adjust, alter, repair, upgrade or operate electronic

communications apparatus which is on, under or over the land, (d) to carry out any works on the land for or in connection with the installation

of electronic communications apparatus on, under or over the land or elsewhere,

(e) to carry out any works on the land for or in connection with the maintenance, adjustment, alteration, repair, upgrading or operation of electronic communications apparatus which is on, under or over the land or elsewhere,

(f) to enter the land to inspect, maintain, adjust, alter, repair, upgrade or operate any electronic communications apparatus which is on, under or over the land or elsewhere,

(g) to connect to a power supply, (h) to interfere with or obstruct a means of access to or from the land (whether

or not any electronic communications apparatus is on, under or over the land), or

(i) to lop or cut back, or require another person to lop or cut back, any tree or other vegetation that interferes or will or may interfere with electronic communications apparatus.

The statutory purposes 4 In this code “the statutory purposes”, in relation to an operator, means—

(a) the purposes of providing the operator's network, or (b) the purposes of providing an infrastructure system.

Electronic communications apparatus, lines and structures 5 (1) In this code “electronic communications apparatus” means—

(a) apparatus designed or adapted for use in connection with the provision of an electronic communications network,

(b) apparatus 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) lines, and

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(d) other structures or things designed or adapted for use in connection with the provision of an electronic communications network.

(2) References to the installation of electronic communications apparatus are to be construed accordingly.

(3) In this code— “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;

“structure” includes a building only if the sole purpose of that building is to enclose other electronic communications apparatus.

The operator's network 6 In this code “network” in relation to an operator means—

(a) if the operator falls within paragraph 2(a), so much of any electronic communications network or infrastructure system provided by the operator as is not excluded from the application of the code under section 106(5), and

(b) if the operator falls within paragraph 2(b), the electronic communications network which the Secretary of State or the Northern Ireland department is providing or proposing to provide.

Infrastructure system 7 (1) In this code “infrastructure system” means a system of infrastructure 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) References in this code to provision of an infrastructure system include references to establishing or maintaining such a system.

PART 2

CONFERRAL OF CODE RIGHTS AND THEIR EXERCISE

Introductory 8 This Part of this code makes provision about—

(a) the conferral of code rights, (b) the persons who are bound by code rights, and (c) the exercise of code rights.

Who may confer code rights? 9 A code right in respect of land may only be conferred on an operator by an

agreement between the occupier of the land and the operator.

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Who else is bound by code rights? 10 (1) This paragraph applies if, in accordance with this Part, a code right is conferred on

an operator in respect of land by a person (“O”) who is the occupier of the land when the code right is conferred.

(2) If O has an interest in the land when the code right is conferred, the code right also binds—

(a) the successors in title to that interest, (b) a person with an interest in the land that is created after the right is conferred

and is derived (directly or indirectly) out of— (i) O's interest, or

(ii) the interest of a successor in title to O's interest, and (c) any other person at any time in occupation of the land whose right to

occupation was granted by— (i) O, at a time when O was bound by the code right, or

(ii) a person within paragraph (a) or (b).

(3) A successor in title who is bound by a code right by virtue of sub-paragraph (2)(a) is to be treated as a party to the agreement by which O conferred the right.

(4) The code right also binds any other person with an interest in the land who has agreed to be bound by it.

(5) If such a person (“P”) agrees to be bound by the code right, the code right also binds— (a) the successors in title to P's interest, (b) a person with an interest in the land that is created after P agrees to be bound

and is derived (directly or indirectly) out of— (i) P's interest, or

(ii) the interest of a successor in title to P's interest, and (c) any other person at any time in occupation of the land whose right to

occupation was granted by— (i) P, at a time when P was bound by the code right, or

(ii) a person within paragraph (a) or (b).

(6) A successor in title who is bound by a code right by virtue of sub-paragraph (5)(a) is to be treated as a party to the agreement by which P agreed to be bound by the right.

Requirements for agreements 11 (1) An agreement under this Part—

(a) must be in writing, (b) must be signed by or on behalf of the parties to it, (c) must state for how long the code right is exercisable, and (d) must state the period of notice (if any) required to terminate the agreement.

(2) Sub-paragraph (1)(a) and (b) also applies to the variation of an agreement under this Part.

(3) The agreement as varied must still comply with sub-paragraph (1)(c) and (d).

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Exercise of code rights 12 (1) A code right is exercisable only in accordance with the terms subject to which it is

conferred.

(2) Anything done by an operator in the exercise of a code right conferred under this Part in relation to any land is to be treated as done in the exercise of a statutory power.

(3) Sub-paragraph (2) does not apply against a person who— (a) is the owner of the freehold estate in the land or the lessee of the land, and (b) is not for the time being bound by the code right.

(4) Sub-paragraph (2) does not apply against a person who has the benefit of a covenant or agreement entered into as respects the land, if—

(a) the covenant or agreement was entered into under a enactment, and (b) by virtue of the enactment, it binds or will bind persons who derive title or

otherwise claim— (i) under the covenantor, or

(ii) under a party to the agreement.

(5) In the application of sub-paragraph (3) to Scotland the reference to a person who is the owner of the freehold estate in the land is to be read as a reference to a person who is the owner of the land.

Access to land 13 (1) This paragraph applies to an operator by whom any of the following rights is

exercisable in relation to land— (a) a code right within paragraph (a) to (g) or (i) of paragraph 3; (b) a right under Part 8 (street works rights); (c) a right under Part 9 (tidal water rights); (d) a right under paragraph 74 (power to fly lines).

(2) The operator may not exercise the right so as to interfere with or obstruct any means of access to or from any other land unless, in accordance with this code, the occupier of the other land has conferred or is otherwise bound by a code right within paragraph (h) of paragraph 3.

(3) A reference in this code to a means of access to or from land includes a means of access to or from land that is provided for use in emergencies.

(4) This paragraph does not require a person to whom sub-paragraph (5) applies to agree to the exercise of any code right on land other than the land mentioned in that sub- paragraph.

(5) This sub-paragraph applies to a person who is the occupier of, or owns an interest in, land which is—

(a) a street in England and Wales or Northern Ireland, (b) a road in Scotland, or (c) tidal water or lands within the meaning of Part 9 of this code.

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Code rights and land registration 14 Where an enactment requires interests, charges or other obligations affecting land

to be registered, the provisions of this code about who is bound by a code right have effect whether or not that right is registered.

PART 3

ASSIGNMENT OF CODE RIGHTS, AND UPGRADING AND SHARING OF APPARATUS

Introductory 15 This Part of this code makes provision for—

(a) operators to assign agreements under Part 2, (b) operators to upgrade electronic communications apparatus to which such

an agreement relates, and (c) operators to share the use of any such electronic communications apparatus.

Assignment of code rights 16 (1) Any agreement under Part 2 of this code is void to the extent that—

(a) it prevents or limits assignment of the agreement to another operator, or (b) it makes assignment of the agreement to another operator subject to

conditions (including a condition requiring the payment of money).

(2) Sub-paragraph (1) does not apply to a term that requires the assignor to enter into a guarantee agreement (see sub-paragraph (7)).

(3) In this paragraph references to “the assignor” or “the assignee” are to the operator by whom or to whom an agreement under Part 2 of this code is assigned or proposed to be assigned.

(4) From the time when the assignment of an agreement under Part 2 of this code takes effect, the assignee is bound by the terms of the agreement.

(5) The assignor is not liable for any breach of a term of the agreement that occurs after the assignment if (and only if), before the breach took place, the assignor or the assignee gave a notice in writing to the other party to the agreement which—

(a) identified the assignee, and (b) provided an address for service (for the purposes of paragraph 91(2)(a)) for

the assignee.

(6) Sub-paragraph (5) is subject to the terms of any guarantee agreement.

(7) A “guarantee agreement” is an agreement, in connection with the assignment of an agreement under Part 2 of this code, under which the assignor guarantees to any extent the performance by the assignee of the obligations that become binding on the assignee under sub-paragraph (4) (the “relevant obligations”).

(8) An agreement is not a guarantee agreement to the extent that it purports— (a) to impose on the assignor a requirement to guarantee in any way the

performance of the relevant obligations by a person other than the assignee, or

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(b) to impose on the assignor any liability, restriction or other requirement of any kind in relation to a time after the relevant obligations cease to be binding on the assignee.

(9) Subject to sub-paragraph (8), a guarantee agreement may— (a) impose on the assignor any liability as sole or principal debtor in respect of

the relevant obligations; (b) impose on the assignor liabilities as guarantor in respect of the assignee's

performance of the relevant obligations which are no more onerous than those to which the assignor would be subject in the event of the assignor being liable as sole or principal debtor in respect of any relevant obligation;

(c) make provision incidental or supplementary to any provision within paragraph (a) or (b).

(10) In the application of this paragraph to Scotland references to assignment of an agreement are to be read as references to assignation of an agreement.

(11) Nothing in the Landlord and Tenant Amendment (Ireland) Act 1860 applies in relation to an agreement under Part 2 of this code so as to—

(a) prevent or limit assignment of the agreement to another operator, or (b) relieve the assignor from liability for any breach of a term of the agreement

that occurs after the assignment.

Power for operator to upgrade or share apparatus 17 (1) An operator (“the main operator”) who has entered into an agreement under Part 2

of this code may, if the conditions in sub-paragraphs (2) and (3) are met— (a) upgrade the electronic communications apparatus to which the agreement

relates, or (b) share the use of such electronic communications apparatus with another

operator.

(2) The first condition is that any changes as a result of the upgrading or sharing to the electronic communications apparatus to which the agreement relates have no adverse impact, or no more than a minimal adverse impact, on its appearance.

(3) The second condition is that the upgrading or sharing imposes no additional burden on the other party to the agreement.

(4) For the purposes of sub-paragraph (3) an additional burden includes anything that— (a) has an additional adverse effect on the other party's enjoyment of the land, or (b) causes additional loss, damage or expense to that party.

(5) Any agreement under Part 2 of this code is void to the extent that— (a) it prevents or limits the upgrading or sharing, in a case where the conditions

in sub-paragraphs (2) and (3) are met, of the electronic communications apparatus to which the agreement relates, or

(b) it makes upgrading or sharing of such apparatus subject to conditions to be met by the operator (including a condition requiring the payment of money).

(6) References in this paragraph to sharing electronic communications apparatus include carrying out works to the apparatus to enable such sharing to take place.

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Effect of agreements enabling sharing between operators and others 18 (1) This paragraph applies where—

(a) this code has been applied by a direction under section 106 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 the person has become a party to it) is a relevant agreement.

(2) The limitation does not 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 relevant 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 an agreement, an enactment or otherwise) on that person.

(4) In this paragraph— “consent requirement”, in relation to a person, means a requirement for

the person to obtain consent or permission to or in connection with— (a) the installation by the person of apparatus, or (b) the doing by the person of any other thing in relation to apparatus the

use of which the person 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).

(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, 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 the person 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 regulations made by the Secretary of

State;

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

PART 4

POWER OF COURT TO IMPOSE AGREEMENT

Introductory 19 This Part of this code makes provision about—

(a) the circumstances in which the court can impose an agreement on a person by which the person confers or is otherwise bound by a code right,

(b) the test to be applied by the court in deciding whether to impose such an agreement,

(c) the effect of such an agreement and its terms, (d) the imposition of an agreement on a person on an interim or temporary

basis.

When can the court impose an agreement? 20 (1) This paragraph applies where the operator requires a person (a “relevant person”)

to agree— (a) to confer a code right on the operator, or (b) to be otherwise bound by a code right which is exercisable by the operator.

(2) The operator may give the relevant person a notice in writing— (a) setting out the code right, and all of the other terms of the agreement that

the operator seeks, and (b) stating that the operator seeks the person's agreement to those terms.

(3) The operator may apply to the court for an order under this paragraph if— (a) the relevant person does not, before the end of 28 days beginning with the

day on which the notice is given, agree to confer or be otherwise bound by the code right, or

(b) at any time after the notice is given, the relevant person gives notice in writing to the operator that the person does not agree to confer or be otherwise bound by the code right.

(4) An order under this paragraph is one which imposes on the operator and the relevant person an agreement between them which—

(a) confers the code right on the operator, or (b) provides for the code right to bind the relevant person.

What is the test to be applied by the court? 21 (1) Subject to sub-paragraph (5), the court may make an order under paragraph 20 if

(and only if) the court thinks that both of the following conditions are met.

(2) The first condition is that the prejudice caused to the relevant person by the order is capable of being adequately compensated by money.

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(3) The second condition is that the public benefit likely to result from the making of the order outweighs the prejudice to the relevant person.

(4) In deciding whether the second condition is met, the court must have regard to the public interest in access to a choice of high quality electronic communications services.

(5) The court may not make an order under paragraph 20 if it thinks that the relevant person intends to redevelop all or part of the land to which the code right would relate, or any neighbouring land, and could not reasonably do so if the order were made.

What is the effect of an agreement imposed under paragraph 20? 22 An agreement imposed by an order under paragraph 20 takes effect for all purposes

of this code as an agreement under Part 2 of this code between the operator and the relevant person.

What are the terms of an agreement imposed under paragraph 20? 23 (1) An order under paragraph 20 may impose an agreement which gives effect to the code

right sought by the operator with such modifications as the court thinks appropriate.

(2) An order under paragraph 20 must require the agreement to contain such terms as the court thinks appropriate, subject to sub-paragraphs (3) to (8).

(3) The terms of the agreement must include terms as to the payment of consideration by the operator to the relevant person for the relevant person's agreement to confer or be bound by the code right (as the case may be).

(4) Paragraph 24 makes provision about the determination of consideration under sub- paragraph (3).

(5) The terms of the agreement must include the terms the court thinks appropriate for ensuring that the least possible loss and damage is caused by the exercise of the code right to persons who—

(a) occupy the land in question, (b) own interests in that land, or (c) are from time to time on that land.

(6) Sub-paragraph (5) applies in relation to a person regardless of whether the person is a party to the agreement.

(7) The terms of the agreement must include terms specifying for how long the code right conferred by the agreement is exercisable.

(8) The court must determine whether the terms of the agreement should include a term—

(a) permitting termination of the agreement (and, if so, in what circumstances); (b) enabling the relevant person to require the operator to reposition or

temporarily to remove the electronic communications equipment to which the agreement relates (and, if so, in what circumstances).

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How is consideration to be determined under paragraph 23? 24 (1) The amount of consideration payable by an operator to a relevant person under an

agreement imposed by an order under paragraph 20 must be an amount or amounts representing the market value of the relevant person's agreement to confer or be bound by the code right (as the case may be).

(2) For this purpose the market value of a person's agreement to confer or be bound by a code right is, subject to sub-paragraph (3), the amount that, at the date the market value is assessed, a willing buyer would pay a willing seller for the agreement—

(a) in a transaction at arm's length, (b) on the basis that the buyer and seller were acting prudently and with full

knowledge of the transaction, and (c) on the basis that the transaction was subject to the other provisions of the

agreement imposed by the order under paragraph 20.

(3) The market value must be assessed on these assumptions— (a) that the right that the transaction relates to does not relate to the provision or

use of an electronic communications network; (b) that paragraphs 16 and 17 (assignment, and upgrading and sharing) do not

apply to the right or any apparatus to which it could apply; (c) that the right in all other respects corresponds to the code right; (d) that there is more than one site which the buyer could use for the purpose

for which the buyer seeks the right.

(4) The terms of the agreement may provide for consideration to be payable— (a) as a lump sum or periodically, (b) on the occurrence of a specified event or events, or (c) in such other form or at such other time or times as the court may direct.

What rights to the payment of compensation are there? 25 (1) If the court makes an order under paragraph 20 the court may also order the operator

to pay compensation to the relevant person for any loss or damage that has been sustained or will be sustained by that person as a result of the exercise of the code right to which the order relates.

(2) An order under sub-paragraph (1) may be made— (a) at the time the court makes an order under paragraph 20, or (b) at any time afterwards, on the application of the relevant person.

(3) An order under sub-paragraph (1) may— (a) specify the amount of compensation to be paid by the operator, or (b) give directions for the determination of any such amount.

(4) Directions under sub-paragraph (3)(b) may provide— (a) for the amount of compensation to be agreed between the operator and the

relevant person; (b) for any dispute about that amount to be determined by arbitration.

(5) An order under this paragraph may provide for the operator— (a) to make a lump sum payment, (b) to make periodical payments,

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(c) to make a payment or payments on the occurrence of an event or events, or (d) to make a payment or payments in such other form or at such other time or

times as the court may direct.

(6) Paragraph 84 makes further provision about compensation in the case of an order under paragraph 20.

Interim code rights 26 (1) An operator may apply to the court for an order which imposes on the operator and

a person, on an interim basis, an agreement between them which— (a) confers a code right on the operator, or (b) provides for a code right to bind that person.

(2) An order under this paragraph imposes an agreement on the operator and a person on an interim basis if it provides for them to be bound by the agreement—

(a) for the period specified in the order, or (b) until the occurrence of an event specified in the order.

(3) The court may make an order under this paragraph if (and only if) the operator has given the person mentioned in sub-paragraph (1) a notice which complies with paragraph 20(2) stating that an agreement is sought on an interim basis and—

(a) the operator and that person have agreed to the making of the order and the terms of the agreement imposed by it, or

(b) the court thinks that there is a good arguable case that the test in paragraph 21 for the making of an order under paragraph 20 is met.

(4) Subject to sub-paragraphs (5) and (6), the following provisions apply in relation to an order under this paragraph and an agreement imposed by it as they apply in relation to an order under paragraph 20 and an agreement imposed by it—

(a) paragraph 20(3) (time at which operator may apply for agreement to be imposed);

(b) paragraph 22 (effect of agreement imposed under paragraph 20); (c) paragraph 23 (terms of agreement imposed under paragraph 20); (d) paragraph 24 (payment of consideration); (e) paragraph 25 (payment of compensation); (f) paragraph 84 (compensation where agreement imposed).

(5) The court may make an order under this paragraph even though the period mentioned in paragraph 20(3)(a) has not elapsed (and paragraph 20(3)(b) does not apply) if the court thinks that the order should be made as a matter of urgency.

(6) Paragraphs 23, 24 and 25 apply by virtue of sub-paragraph (4) as if— (a) references to the relevant person were to the person mentioned in sub-

paragraph (1) of this paragraph, and (b) the duty in paragraph 23 to include terms as to the payment of consideration

to that person in an agreement were a power to do so.

(7) Sub-paragraph (8) applies if— (a) an order has been made under this paragraph imposing an agreement relating

to a code right on an operator and a person in respect of any land, and

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(b) the period specified under sub-paragraph (2)(a) has expired or, as the case may be, the event specified under sub-paragraph (2)(b) has occurred without (in either case) an agreement relating to the code right having been imposed on the person by order under paragraph 20.

(8) From the time when the period expires or the event occurs, that person has the right, subject to and in accordance with Part 6 of this code, to require the operator to remove any electronic communications apparatus placed on the land under the agreement imposed under this paragraph.

Temporary code rights 27 (1) This paragraph applies where—

(a) an operator gives a notice under paragraph 20(2) to a person in respect of any land,

(b) the notice also requires that person's agreement on a temporary basis in respect of a right which is to be exercisable (in whole or in part) in relation to electronic communications apparatus which is already installed on, under or over the land, and

(c) the person has the right to require the removal of the apparatus in accordance with paragraph 37 or as mentioned in paragraph 40(1) but the operator is not for the time being required to remove the apparatus.

(2) The court may, on the application of the operator, impose on the operator and the person an agreement between them which confers on the operator, or provides for the person to be bound by, such temporary code rights as appear to the court reasonably necessary for securing the objective in sub-paragraph (3).

(3) That objective is that, until the proceedings under paragraph 20 and any proceedings under paragraph 40 are determined, the service provided by the operator's network is maintained and the apparatus is properly adjusted and kept in repair.

(4) Subject to sub-paragraphs (5) and (6), the following provisions apply in relation to an order under this paragraph and an agreement imposed by it as they apply in relation to an order under paragraph 20 and an agreement imposed by it—

(a) paragraph 20(3) (time at which operator may apply for agreement to be imposed);

(b) paragraph 22 (effect of agreement imposed under paragraph 20); (c) paragraph 23 (terms of agreement imposed under paragraph 20); (d) paragraph 24 (payment of consideration); (e) paragraph 25 (payment of compensation); (f) paragraph 84 (compensation where agreement imposed).

(5) The court may make an order under this paragraph even though the period mentioned in paragraph 20(3)(a) has not elapsed (and paragraph 20(3)(b) does not apply) if the court thinks that the order should be made as a matter of urgency.

(6) Paragraphs 23, 24 and 25 apply by virtue of sub-paragraph (4) as if— (a) references to the relevant person were to the person mentioned in sub-

paragraph (1) of this paragraph, and (b) the duty in paragraph 23 to include terms as to the payment of consideration

to that person in an agreement were a power to do so.

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(7) Sub-paragraph (8) applies where, in the course of the proceedings under paragraph 20, it is shown that a person with an interest in the land was entitled to require the removal of the apparatus immediately after it was installed.

(8) The court must, in determining for the purposes of paragraph 20 whether the apparatus should continue to be kept on, under or over the land, disregard the fact that the apparatus has already been installed there.

PART 5

TERMINATION AND MODIFICATION OF AGREEMENTS

Introductory 28 This Part of this code makes provision about—

(a) the continuation of code rights after the time at which they cease to be exercisable under an agreement,

(b) the procedure for bringing an agreement to an end, (c) the procedure for changing an agreement relating to code rights, and (d) the arrangements for the making of payments under an agreement whilst

disputes under this Part are resolved.

Application of this Part 29 (1) This Part of this code applies to an agreement under Part 2 of this code, subject to

sub-paragraphs (2) to (4).

(2) This Part of this code does not apply to a lease of land in England and Wales if— (a) its primary purpose is not to grant code rights, and (b) it is a lease to which Part 2 of the Landlord and Tenant Act 1954 (security

of tenure for business, professional and other tenants) applies.

(3) In determining whether a lease is one to which Part 2 of the Landlord and Tenant Act 1954 applies, any agreement under section 38A (agreements to exclude provisions of Part 2) of that Act is to be disregarded.

(4) This Part of this code does not apply to a lease of land in Northern Ireland if— (a) its primary purpose is not to grant code rights, and (b) it is a lease to which the Business Tenancies (Northern Ireland) Order 1996

(SI 1996/725 (NI 5)) applies.

(5) An agreement to which this Part of this code applies is referred to in this code as a “code agreement”.

Continuation of code rights 30 (1) Sub-paragraph (2) applies if—

(a) a code right is conferred by, or is otherwise binding on, a person (the “site provider”) as the result of a code agreement, and

(b) under the terms of the agreement—

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(i) the right ceases to be exercisable or the site provider ceases to be bound by it, or

(ii) the site provider may bring the code agreement to an end so far as it relates to that right.

(2) Where this sub-paragraph applies the code agreement continues so that— (a) the operator may continue to exercise that right, and (b) the site provider continues to be bound by the right.

(3) Sub-paragraph (2) does not apply to a code right which is conferred by, or is otherwise binding on, a person by virtue of an order under paragraph 26 (interim code rights) or 27 (temporary code rights).

(4) Sub-paragraph (2) is subject to the following provisions of this Part of this code.

How may a person bring a code agreement to an end? 31 (1) A site provider who is a party to a code agreement may bring the agreement to an

end by giving a notice in accordance with this paragraph to the operator who is a party to the agreement.

(2) The notice must— (a) comply with paragraph 89 (notices given by persons other than operators), (b) specify the date on which the site provider proposes the code agreement

should come to an end, and (c) state the ground on which the site provider proposes to bring the code

agreement to an end.

(3) The date specified under sub-paragraph (2)(b) must fall— (a) after the end of the period of 18 months beginning with the day on which

the notice is given, and (b) after the time at which, apart from paragraph 30, the code right to which the

agreement relates would have ceased to be exercisable or to bind the site provider or at a time when, apart from that paragraph, the code agreement could have been brought to an end by the site provider.

(4) The ground stated under sub-paragraph (2)(c) must be one of the following— (a) that the code agreement ought to come to an end as a result of substantial

breaches by the operator of its obligations under the agreement; (b) that the code agreement ought to come to an end because of persistent delays

by the operator in making payments to the site provider under the agreement; (c) that the site provider intends to redevelop all or part of the land to which the

code agreement relates, or any neighbouring land, and could not reasonably do so unless the code agreement comes to an end;

(d) that the operator is not entitled to the code agreement because the test under paragraph 21 for the imposition of the agreement on the site provider is not met.

What is the effect of a notice under paragraph 31? 32 (1) Where a site provider gives a notice under paragraph 31, the code agreement to which

it relates comes to an end in accordance with the notice unless—

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(a) within the period of three months beginning with the day on which the notice is given, the operator gives the site provider a counter-notice in accordance with sub-paragraph (3), and

(b) within the period of three months beginning with the day on which the counter-notice is given, the operator applies to the court for an order under paragraph 34.

(2) Sub-paragraph (1) does not apply if the operator and the site provider agree to the continuation of the code agreement.

(3) The counter-notice must state— (a) that the operator does not want the existing code agreement to come to an

end, (b) that the operator wants the site provider to agree to confer or be otherwise

bound by the existing code right on new terms, or (c) that the operator wants the site provider to agree to confer or be otherwise

bound by a new code right in place of the existing code right.

(4) If, on an application under sub-paragraph (1)(b), the court decides that the site provider has established any of the grounds stated in the site provider's notice under paragraph 31, the court must order that the code agreement comes to an end in accordance with the order.

(5) Otherwise the court must make one of the orders specified in paragraph 34.

How may a party to a code agreement require a change to the terms of an agreement which has expired?

33 (1) An operator or site provider who is a party to a code agreement by which a code right is conferred by or otherwise binds the site provider may, by notice in accordance with this paragraph, require the other party to the agreement to agree that—

(a) the code agreement should have effect with modified terms, (b) where under the code agreement more than one code right is conferred by

or otherwise binds the site provider, that the agreement should no longer provide for an existing code right to be conferred by or otherwise bind the site provider,

(c) the code agreement should— (i) confer an additional code right on the operator, or

(ii) provide that the site provider is otherwise bound by an additional code right, or

(d) the existing code agreement should be terminated and a new agreement should have effect between the parties which—

(i) confers a code right on the operator, or (ii) provides for a code right to bind the site provider.

(2) The notice must— (a) comply with paragraph 88 or 89, according to whether the notice is given

by an operator or a site provider, (b) specify—

(i) the day from which it is proposed that the modified terms should have effect,

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(ii) the day from which the agreement should no longer provide for the code right to be conferred by or otherwise bind the site provider,

(iii) the day from which it is proposed that the additional code right should be conferred by or otherwise bind the site provider, or

(iv) the day on which it is proposed the existing code agreement should be terminated and from which a new agreement should have effect,

(as the case may be), and (c) set out details of—

(i) the proposed modified terms, (ii) the code right it is proposed should no longer be conferred by or

otherwise bind the site provider, (iii) the proposed additional code right, or (iv) the proposed terms of the new agreement,

(as the case may be).

(3) The day specified under sub-paragraph (2)(b) must fall— (a) after the end of the period of 6 months beginning with the day on which the

notice is given, and (b) after the time at which, apart from paragraph 30, the code right to which the

existing code agreement relates would have ceased to be exercisable or to bind the site provider or at a time when, apart from that paragraph, the code agreement could have been brought to an end by the site provider.

(4) Sub-paragraph (5) applies if, after the end of the period of 6 months beginning with the day on which the notice is given, the operator and the site provider have not reached agreement on the proposals in the notice.

(5) Where this paragraph applies, the operator or the site provider may apply to the court for the court to make an order under paragraph 34.

What orders may a court make on an application under paragraph 32 or 33? 34 (1) This paragraph sets out the orders that the court may make on an application under

paragraph 32(1)(b) or 33(5).

(2) The court may order that the operator may continue to exercise the existing code right in accordance with the existing code agreement for such period as may be specified in the order (so that the code agreement has effect accordingly).

(3) The court may order the modification of the terms of the code agreement relating to the existing code right.

(4) Where under the code agreement more than one code right is conferred by or otherwise binds the site provider, the court may order the modification of the terms of the code agreement so that it no longer provides for an existing code right to be conferred by or otherwise bind the site provider.

(5) The court may order the terms of the code agreement relating to the existing code right to be modified so that—

(a) it confers an additional code right on the operator, or (b) it provides that the site provider is otherwise bound by an additional code

right.

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(6) The court may order the termination of the code agreement relating to the existing code right and order the operator and the site provider to enter into a new agreement which—

(a) confers a code right on the operator, or (b) provides for a code right to bind the site provider.

(7) The existing code agreement continues until the new agreement takes effect.

(8) This code applies to the new agreement as if it were an agreement under Part 2 of this code.

(9) The terms conferring or providing for an additional code right under sub- paragraph (5), and the terms of a new agreement under sub-paragraph (6), are to be such as are agreed between the operator and the site provider.

(10) If the operator and the site provider are unable to agree on the terms, the court must on an application by either party make an order specifying those terms.

(11) Paragraphs 23(2) to (8), 24, 25 and 84 apply— (a) to an order under sub-paragraph (3), (4) or (5), so far as it modifies or

specifies the terms of the agreement, and (b) to an order under sub-paragraph (10)

as they apply to an order under paragraph 20.

(12) In the case of an order under sub-paragraph (10) the court must also have regard to the terms of the existing code agreement.

(13) In determining which order to make under this paragraph, the court must have regard to all the circumstances of the case, and in particular to—

(a) the operator's business and technical needs, (b) the use that the site provider is making of the land to which the existing code

agreement relates, (c) any duties imposed on the site provider by an enactment, and (d) the amount of consideration payable by the operator to the site provider

under the existing code agreement.

(14) Where the court makes an order under this paragraph, it may also order the operator to pay the site provider the amount (if any) by which A exceeds B, where—

(a) A is the amount of consideration that would have been payable by the operator to the site provider for the relevant period if that amount had been assessed on the same basis as the consideration payable as the result of the order, and

(b) B is the amount of consideration payable by the operator to the site provider for the relevant period.

(15) In sub-paragraph (14) the relevant period is the period (if any) that— (a) begins on the date on which, apart from the operation of paragraph 30, the

code right to which the existing code agreement relates would have ceased to be exercisable or to bind the site provider or from which, apart from that paragraph, the code agreement could have been brought to an end by the site provider, and

(b) ends on the date on which the order is made.

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What arrangements for payment can be made pending determination of the application? 35 (1) This paragraph applies where—

(a) a code right continues to be exercisable under paragraph 30 after the time at which, apart from the operation of that paragraph, the code right would have ceased to be exercisable or to bind the site provider or from which, apart from that paragraph, the code agreement relating to the right could have been brought to an end by the site provider, and

(b) the operator or the site provider has applied to the court for an order under paragraph 32(1)(b) or 33(5).

(2) The site provider may— (a) agree with the operator that, until the application has been finally

determined, the site provider will continue to receive the payments of consideration from the operator to which the site provider is entitled under the agreement relating to the existing code right,

(b) agree with the operator that, until that time, the site provider will receive different payments of consideration under that agreement, or

(c) apply to the court for the court to determine the payments of consideration to be made by the operator to the site provider under that agreement until that time.

(3) The court must determine the payments under sub-paragraph (2)(c) on the basis set out in paragraph 24 (calculation of consideration).

PART 6

RIGHTS TO REQUIRE REMOVAL OF ELECTRONIC COMMUNICATIONS APPARATUS

Modifications etc. (not altering text) C58 Sch. 3A Pt. 6 applied by 1985 c. 68, s. 298(2) (as amended (28.12.2017) by Digital Economy Act 2017

(c. 30), s. 118(6), Sch. 3 para. 19; S.I. 2017/1286, reg. 2(d)) C59 Sch. 3A Pt. 6 excluded by 1996 c. 61, Sch. 15 Pt. 4 para. 2(1) (as amended (28.12.2017) by Digital

Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 38(3); S.I. 2017/1286, reg. 2(d))

Introductory 36 This Part of this code makes provision about—

(a) the cases in which a person has the right to require the removal of electronic communications apparatus or the restoration of land,

(b) the means by which a person can discover whether apparatus is on land pursuant to a code right, and

(c) the means by which a right to require removal of apparatus or restoration of land can be enforced.

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When does a landowner have the right to require removal of electronic communications apparatus?

37 (1) A person with an interest in land (a “landowner”) has the right to require the removal of electronic communications apparatus on, under or over the land if (and only if) one or more of the following conditions are met.

(2) The first condition is that the landowner has never since the coming into force of this code been bound by a code right entitling an operator to keep the apparatus on, under or over the land.

(3) The second condition is that a code right entitling an operator to keep the apparatus on, under or over the land has come to an end or has ceased to bind the landowner—

(a) as mentioned in paragraph 26(7) and (8), (b) as the result of paragraph 32(1), or (c) as the result of an order under paragraph 32(4) or 34(4) or (6), or (d) where the right was granted by a lease to which Part 5 of this code does not

apply.

This is subject to sub-paragraph (4).

(4) The landowner does not meet the first or second condition if— (a) the land is occupied by a person who—

(i) conferred a code right (which is in force) entitling an operator to keep the apparatus on, under or over the land, or

(ii) is otherwise bound by such a right, and (b) that code right was not conferred in breach of a covenant enforceable by the

landowner.

(5) In the application of sub-paragraph (4)(b) to Scotland the reference to a covenant enforceable by the landowner is to be read as a reference to a contractual term which is so enforceable.

(6) The third condition is that— (a) an operator has the benefit of a code right entitling the operator to keep the

apparatus on, under or over the land, but (b) the apparatus is not, or is no longer, used for the purposes of the operator's

network, and (c) there is no reasonable likelihood that the apparatus will be used for that

purpose.

(7) The fourth condition is that— (a) this code has ceased to apply to a person so that the person is no longer

entitled under this code to keep the apparatus on, under or over the land, (b) the retention of the apparatus on, under or over the land is not authorised by

a scheme contained in an order under section 117, and (c) there is no other person with a right conferred by or under this code to keep

the apparatus on, under or over the land.

(8) The fifth condition is that— (a) the apparatus was kept on, under or over the land pursuant to—

(i) a transport land right (see Part 7), or (ii) a street work right (see Part 8),

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(b) that right has ceased to be exercisable in relation to the land by virtue of paragraph 54(9), and

(c) there is no other person with a right conferred by or under this code to keep the apparatus on, under or over the land.

(9) This paragraph does not affect rights to require the removal of apparatus under another enactment (see paragraph 41).

When does a landowner or occupier of neighbouring land have the right to require removal of electronic communications apparatus?

38 (1) A landowner or occupier of any land (“neighbouring land”) has the right to require the removal of electronic communications apparatus kept on, under or over other land in exercise of a right mentioned in paragraph 13(1), if both of the following conditions are met.

(2) The first condition is that the apparatus interferes with or obstructs a means of access to or from the neighbouring land.

(3) The second condition is that the landowner or occupier of the neighbouring land is not bound by a code right within paragraph 3(h) entitling an operator to cause the interference or obstruction.

(4) A landowner of neighbouring land who is not the occupier of the land does not meet the second condition if—

(a) the land is occupied by a person who— (i) conferred a code right (which is in force) entitling an operator to

cause the interference or obstruction, or (ii) is otherwise bound by such a right, and

(b) that code right was not conferred in breach of a covenant enforceable by the landowner.

(5) In the application of sub-paragraph (4)(b) to Scotland the reference to a covenant enforceable by the landowner is to be read as a reference to a contractual term which is so enforceable.

How does a landowner or occupier find out whether apparatus is on land pursuant to a code right?

39 (1) A landowner may by notice require an operator to disclose whether— (a) the operator owns electronic communications apparatus on, under or over

land in which the landowner has an interest or uses such apparatus for the purposes of the operator's network, or

(b) the operator has the benefit of a code right entitling the operator to keep electronic communications apparatus on, under or over land in which the landowner has an interest.

(2) A landowner or occupier of neighbouring land may by notice require an operator to disclose whether—

(a) the operator owns electronic communications apparatus on, under or over land that forms (or, but for the apparatus, would form) a means of access to the neighbouring land, or uses such apparatus for the purposes of the operator's network, or

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(b) the operator has the benefit of a code right entitling the operator to keep electronic communications apparatus on, under or over land that forms (or, but for the apparatus, would form) a means of access to the neighbouring land.

(3) The notice must comply with paragraph 89 (notices given by persons other than operators).

(4) Sub-paragraph (5) applies if— (a) the operator does not, before the end of the period of three months beginning

with the date on which the notice under sub-paragraph (1) or (2) was given, give a notice to the landowner or occupier that—

(i) complies with paragraph 88 (notices given by operators), and (ii) discloses the information sought by the landowner or occupier,

(b) the landowner or occupier takes action under paragraph 40 to enforce the removal of the apparatus, and

(c) it is subsequently established that— (i) the operator owns the apparatus or uses it for the purposes of the

operator's network, and (ii) the operator has the benefit of a code right entitling the operator to

keep the apparatus on, under or over the land.

(5) The operator must nevertheless bear the costs of any action taken by the landowner or occupier under paragraph 40 to enforce the removal of the apparatus.

How does a landowner or occupier enforce removal of apparatus? 40 (1) The right of a landowner or occupier to require the removal of electronic

communications apparatus on, under or over land, under paragraph 37 or 38, is exercisable only in accordance with this paragraph.

(2) The landowner or occupier may give a notice to the operator whose apparatus it is requiring the operator—

(a) to remove the apparatus, and (b) to restore the land to its condition before the apparatus was placed on, under

or over the land.

(3) The notice must— (a) comply with paragraph 89 (notices given by persons other than operators),

and (b) specify the period within which the operator must complete the works.

(4) The period specified under sub-paragraph (3) must be a reasonable one.

(5) Sub-paragraph (6) applies if, within the period of 28 days beginning with the day on which the notice was given, the landowner or occupier and the operator do not reach agreement on any of the following matters—

(a) that the operator will remove the apparatus; (b) that the operator will restore the land to its condition before the apparatus

was placed on, under or over the land; (c) the time at which or period within which the apparatus will be removed; (d) the time at which or period within which the land will be restored.

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(6) The landowner or occupier may make an application to the court for— (a) an order under paragraph 44(1) (order requiring operator to remove

apparatus etc), or (b) an order under paragraph 44(3) (order enabling landowner to sell apparatus

etc).

(7) If the court makes an order under paragraph 44(1), but the operator does not comply with the agreement imposed on the operator and the landowner or occupier by virtue of paragraph 44(7), the landowner or occupier may make an application to the court for an order under paragraph 44(3).

(8) On an application under sub-paragraph (6) or (7) the court may not make an order in relation to apparatus if an application under paragraph 20(3) has been made in relation to the apparatus and has not been determined.

How are other rights to require removal of apparatus enforced? 41 (1) The right of a person (a “third party”) under an enactment other than this

code, or otherwise than under an enactment, to require the removal of electronic communications apparatus on, under or over land is exercisable only in accordance with this paragraph.

(2) The third party may give a notice to the operator whose apparatus it is, requiring the operator—

(a) to remove the apparatus, and (b) to restore the land to its condition before the apparatus was placed on, under

or over the land.

(3) The notice must— (a) comply with paragraph 89 (notices given by persons other than operators),

and (b) specify the period within which the operator must complete the works.

(4) The period specified under sub-paragraph (3) must be a reasonable one.

(5) Within the period of 28 days beginning with the day on which notice under sub- paragraph (2) is given, the operator may give the third party notice (“counter-notice”) —

(a) stating that the third party is not entitled to require the removal of the apparatus, or

(b) specifying the steps which the operator proposes to take for the purpose of securing a right as against the third party to keep the apparatus on the land.

(6) If the operator does not give counter-notice within that period, the third party is entitled to enforce the removal of the apparatus.

(7) If the operator gives the third party counter-notice within that period, the third party may enforce the removal of the apparatus only in pursuance of an order of the court that the third party is entitled to enforce the removal of the apparatus.

(8) If the counter-notice specifies steps under paragraph (5)(b), the court may make an order under sub-paragraph (7) only if it is satisfied—

(a) that the operator is not intending to take those steps or is being unreasonably dilatory in taking them; or

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(b) that taking those steps has not secured, or will not secure, for the operator as against the third party any right to keep the apparatus installed on, under or over the land or to re-install it if it is removed.

(9) Where the third party is entitled to enforce the removal of the apparatus, under sub- paragraph (6) or under an order under sub-paragraph (7), the third party may make an application to the court for—

(a) an order under paragraph 44(1) (order requiring operator to remove apparatus etc), or

(b) an order under paragraph 44(3) (order enabling third party to sell apparatus etc).

(10) If the court makes an order under paragraph 44(1), but the operator does not comply with the agreement imposed on the operator and the third party by virtue of paragraph 44(7), the third party may make an application to the court for an order under paragraph 44(3).

(11) An order made on an application under this paragraph need not include provision within paragraph 44(1)(b) or (3)(d) unless the court thinks it appropriate.

(12) Sub-paragraph (9) is without prejudice to any other method available to the third party for enforcing the removal of the apparatus.

How does paragraph 40 apply if a person is entitled to require apparatus to be altered in consequence of street works?

42 (1) This paragraph applies where the third party's right in relation to which paragraph 41 applies is a right to require the alteration of the apparatus in consequence of the stopping up, closure, change or diversion of a street or road or the extinguishment or alteration of a public right of way.

(2) The removal of the apparatus in pursuance of paragraph 41 constitutes compliance with a requirement to make any other alteration.

(3) A counter-notice under paragraph 41(5) may state (in addition to, or instead of, any of the matters mentioned in paragraph 41(5)(b)) that the operator requires the third party to reimburse the operator in respect of any expenses incurred by the operator in or in connection with the making of any alteration in compliance with the requirements of the third party.

(4) An order made under paragraph 41 on an application by the third party in respect of a counter-notice containing a statement under sub-paragraph (3) must, unless the court otherwise thinks fit, require the third party to reimburse the operator in respect of the expenses referred to in the statement.

(5) Paragraph 44(3)(b) to (e) do not apply.

(6) In this paragraph— “road” means a road in Scotland; “street” means a street in England and Wales or Northern Ireland.

When can a separate application for restoration of land be made? 43 (1) This paragraph applies if—

(a) the condition of the land has been affected by the exercise of a code right, and

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(b) restoration of the land to its condition before the code right was exercised does not involve the removal of electronic communications apparatus from any land.

(2) The occupier of the land, the owner of the freehold estate in the land or the lessee of the land (“the relevant person”) has the right to require the operator to restore the land if the relevant person is not for the time being bound by the code right.

(3) The relevant person does not have that right if— (a) the land is occupied by a person who—

(i) conferred a code right (which is in force) entitling the operator to affect the condition of the land in the same way as the right mentioned in sub-paragraph (1), or

(ii) is otherwise bound by such a right, and (b) that code right was not conferred in breach of a covenant enforceable by the

relevant person.

(4) In the application of sub-paragraph (3)(b) to Scotland the reference to a covenant enforceable by the relevant person is to be read as a reference to a contractual term which is so enforceable.

(5) A person who has the right conferred by this paragraph may give a notice to the operator requiring the operator to restore the land to its condition before the code right was exercised.

(6) The notice must— (a) comply with paragraph 89 (notices given by persons other than operators),

and (b) specify the period within which the operator must complete the works.

(7) The period specified under sub-paragraph (6) must be a reasonable one.

(8) Sub-paragraph (9) applies if, within the period of 28 days beginning with the day on which the notice was given, the landowner and the operator do not reach agreement on any of the following matters—

(a) that the operator will restore the land to its condition before the code right was exercised;

(b) the time at which or period within which the land will be restored.

(9) The landowner may make an application to the court for— (a) an order under paragraph 44(2) (order requiring operator to restore land), or (b) an order under paragraph 44(4) (order enabling landowner to recover cost

of restoring land).

(10) If the court makes an order under paragraph 44(2), but the operator does not comply with the agreement imposed on the operator and the landowner by virtue of paragraph 44(7), the landowner may make an application to the court for an order under paragraph 44(4).

(11) In the application of sub-paragraph (2) to Scotland the reference to a person who is the owner of the freehold estate in the land is to be read as a reference to a person who is the owner of the land.

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What orders may the court make on an application under paragraphs 40 to 43? 44 (1) An order under this sub-paragraph is an order that the operator must, within the period

specified in the order— (a) remove the electronic communications apparatus, and (b) restore the land to its condition before the apparatus was placed on, under

or over the land.

(2) An order under this sub-paragraph is an order that the operator must, within the period specified in the order, restore the land to its condition before the code right was exercised.

(3) An order under this sub-paragraph is an order that the landowner, occupier or third party may do any of the following—

(a) remove or arrange the removal of the electronic communications apparatus; (b) sell any apparatus so removed; (c) recover the costs of any action under paragraph (a) or (b) from the operator; (d) recover from the operator the costs of restoring the land to its condition

before the apparatus was placed on, under or over the land; (e) retain the proceeds of sale of the apparatus to the extent that these do

not exceed the costs incurred by the landowner, occupier or third party as mentioned in paragraph (c) or (d).

(4) An order under this sub-paragraph is an order that the landowner may recover from the operator the costs of restoring the land to its condition before the code right was exercised.

(5) An order under this paragraph on an application under paragraph 40 may require the operator to pay compensation to the landowner for any loss or damage suffered by the landowner as a result of the presence of the apparatus on the land during the period when the landowner had the right to require the removal of the apparatus from the land but was not able to exercise that right.

(6) Paragraph 84 makes further provision about compensation under sub-paragraph (5).

(7) An order under sub-paragraph (1) or (2) takes effect as an agreement between the operator and the landowner, occupier or third party that—

(a) requires the operator to take the steps specified in the order, and (b) otherwise contains such terms as the court may so specify.

PART 7

CONFERRAL OF TRANSPORT LAND RIGHTS AND THEIR EXERCISE

Introductory 45 This Part of this code makes provision about—

(a) the conferral of transport land rights, and (b) the exercise of transport land rights.

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Transport land and transport undertakers 46 In this Part of this code—

“transport land” means land which is used wholly or mainly— (a) as a railway, canal or tramway, or (b) in connection with a railway, canal or tramway on the land;

“transport undertaker”, in relation to transport land, means the person carrying on the railway, canal or tramway undertaking.

Conferral of transport land rights 47 (1) An operator may exercise a transport land right for the statutory purposes.

(2) But that is subject to the following provisions of this Part of this code.

The transport land rights 48 (1) For the purposes of this code a “transport land right”, in relation to an operator, is—

(a) a right to cross any transport land with a line; (b) a right, for the purposes of crossing any transport land with a line—

(i) to install and keep the line and any other electronic communications apparatus on, under or over the transport land;

(ii) to inspect, maintain, adjust, alter, repair, upgrade or operate electronic communications apparatus on, under or over the transport land;

(iii) a right to carry out any works on the transport land for or in connection with the exercise of a right under sub-paragraph (i) or (ii);

(iv) a right to enter the transport land to inspect, maintain, adjust, alter, repair, upgrade or operate the line or other electronic communications apparatus.

(2) A line installed in the exercise of a transport land right need not cross the transport land in question by a direct route or the shortest route from the point at which the line enters the transport land.

(3) But the line must not cross the transport land by any route which, in the horizontal plane, exceeds that shortest route by more than 400 metres.

(4) The transport land rights do not authorise an operator to install a line or other electronic communications apparatus in any position on transport land in which the line or other apparatus would interfere with traffic on the railway, canal or tramway.

Non-emergency works: when can an operator exercise the transport land rights? 49 (1) Before exercising a transport land right in order to carry out non-emergency works,

the operator must give the transport undertaker notice of the intention to carry out the works (“notice of proposed works”).

(2) Notice of proposed works must contain a plan and section of the works; but, if the transport undertaker agrees, the notice may instead contain a description of the works (whether or not in the form of a diagram).

(3) The operator must not begin the proposed works until the notice period has ended.

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(4) But the operator's power to carry out the proposed works is subject to paragraph 50.

(5) In this paragraph— “non-emergency works” means any works which are not emergency

works under paragraph 51; “notice period” means the period of 28 days beginning with the day on

which notice of proposed works is given.

What is the effect of the transport undertaker giving notice of objection to the operator? 50 (1) This paragraph applies if an operator gives a transport undertaker notice of proposed

works under paragraph 49.

(2) The transport undertaker may, within the notice period, give the operator notice objecting to the proposed works (“notice of objection”).

(3) If notice of objection is given, the operator or the transport undertaker may, within the arbitration notice period, give the other notice that the objection is to be referred to arbitration under paragraph 52 (“arbitration notice”).

(4) In a case where notice of objection is given, the operator may exercise a transport land right in order to carry out the proposed works only if they are permitted under sub-paragraph (5) or (6).

(5) Works are permitted in a case where— (a) the arbitration notice period has ended, and (b) no arbitration notice has been given.

(6) In a case where arbitration notice has been given, works are permitted in accordance with an award made on the arbitration.

(7) In this paragraph— (a) “arbitration notice period” means the period of 28 days beginning with the

day on which objection notice is given; (b) expressions defined in paragraph 49 have the same meanings as in that

paragraph.

Emergency works: when can an operator exercise the transport land rights? 51 (1) An operator may exercise a transport land right in order to carry out emergency

works.

(2) If the operator exercises a transport land right to carry out emergency works, the operator must give the transport undertaker an emergency works notice as soon as reasonably practicable after starting the works.

(3) An “emergency works notice” is a notice which— (a) identifies the emergency works; (b) contains a statement of the reason why the works are emergency works; and (c) contains either—

(i) the matters which would be included in a notice of proposed works (if one were given in relation to the works), or

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(ii) a reference to a notice of proposed works which relates to the works that are emergency works (if one has been given).

(4) A transport undertaker may, within the compensation notice period, give the operator notice which requires the operator to pay compensation for loss or damage sustained in consequence of the carrying out of emergency works (“compensation notice”).

(5) The operator must pay the transport undertaker any compensation which is required by a compensation notice (if given within the compensation notice period).

(6) The amount of compensation payable under sub-paragraph (5) is to be agreed between the operator and the transport undertaker.

(7) But if— (a) the compensation agreement period has ended, and (b) the operator and the transport undertaker have not agreed the amount of

compensation payable under sub-paragraph (6), the operator or the transport undertaker may give the other notice that the disagreement is to be referred to arbitration under paragraph 52.

(8) A reference in this paragraph to emergency works includes a reference to any works which are included in a notice of proposed works but become emergency works before the operator is authorised by paragraph 50 or 51 to carry them out.

(9) In this paragraph— “compensation agreement period” means the period of 28 days beginning

with the day on which a compensation notice is given; “compensation notice period” means the period of 28 days beginning with

the day on which an emergency works notice is given; “emergency works” means works carried out in order to stop anything

already occurring, or to prevent anything imminent from occurring, which is likely to cause—

(a) danger to persons or property, (b) the interruption of any service provided by the operator's network, or (c) substantial loss to the operator,

and any other works which it is reasonable (in all the circumstances) to carry out with those works;

“notice of proposed works” means such notice given under paragraph 49.

What happens if a dispute about the transport land rights is referred to arbitration? 52 (1) This paragraph applies if notice is given under paragraph 50(3) or 51(7) that the

following matter (the “matter in dispute”) is to be referred to arbitration— (a) an objection to proposed works; (b) a disagreement about an amount of compensation.

(2) The matter in dispute is to be referred to the arbitration of a single arbitrator appointed—

(a) by agreement between the parties, or (b) in the absence of such agreement, by the President of the Institution of Civil

Engineers.

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(3) If the matter in dispute is an objection to proposed works, the arbitrator has the following powers—

(a) power to require the operator to give the arbitrator a plan and section in such form as the arbitrator thinks appropriate;

(b) power to require the transport undertaker to give the arbitrator any observations on such a plan or section in such form as the arbitrator thinks appropriate;

(c) power to impose on either party any other requirements which the arbitrator thinks appropriate (including a requirement to provide information in such form as the arbitrator thinks appropriate);

(d) power to make an award— (i) requiring modifications to the proposed works, and

(ii) specifying the terms on which, and the conditions subject to which, the proposed works may be carried out;

(e) power to award one or both of the following, payable to the transport undertaker—

(i) compensation for loss or damage sustained by that person in consequence of the carrying out of the works;

(ii) consideration for the right to carry out the works.

(4) If the matter in dispute is a disagreement about an amount of compensation, the arbitrator has the following powers—

(a) power to impose on either party any requirements which the arbitrator thinks appropriate (including a requirement to provide information in such form as the arbitrator thinks appropriate);

(b) power to award compensation, payable to the transport undertaker, for loss or damage sustained by that person in consequence of the carrying out of the emergency works.

(5) The arbitrator may make an award conditional upon a party complying with a requirement imposed under sub-paragraph (3)(a), (b) or (c) or (4)(a).

(6) In determining what award to make, the matters to which the arbitrator must have regard include the public interest in there being access to a choice of high quality electronic communications services.

(7) The arbitrator's power under sub-paragraph (3) or (4) to award compensation for loss includes power to award compensation for any increase in the expenses incurred by the transport undertaker in carrying on its railway, canal or tramway undertaking.

(8) An award of consideration under sub-paragraph (3)(e)(ii) must be determined on the basis of what would have been fair and reasonable if the transport undertaker had willingly given authority for the works to be carried out on the same terms, and subject to the same conditions (if any), as are contained in the award.

(9) In this paragraph “party” means— (a) the operator, or (b) the transport undertaker.

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When can a transport undertaker require an operator to alter communications apparatus? 53 (1) A transport undertaker may give an operator notice which requires the operator to

alter a line or other electronic communications apparatus specified in the notice (“notice requiring alterations”) on the ground that keeping the apparatus on, under or over transport land interferes with, or is likely to interfere with—

(a) the carrying on of the transport undertaker's railway, canal or tramway undertaking, or

(b) anything done or to be done for the purposes of its railway, canal or tramway undertaking.

(2) The operator may, within the notice period, give the transport undertaker notice (“counter-notice”) specifying the respects in which the operator is not prepared to comply with the notice requiring alterations.

(3) The operator must comply with the notice requiring alterations, within a reasonable time and to the reasonable satisfaction of the transport undertaker, if—

(a) the notice period has ended, and (b) no counter-notice has been given.

(4) If counter-notice has been given (within the notice period), the transport undertaker may apply to the court for an order requiring the operator to alter any of the specified apparatus.

(5) The court must not make an order unless it is satisfied that the order is necessary on one of the grounds mentioned in sub-paragraph (1).

(6) In determining whether to make an order, the matters to which the court must also have regard include the public interest in there being access to a choice of high quality electronic communications services.

(7) An order under this paragraph may take such form and be on such terms as the court thinks fit.

(8) In particular, the order— (a) may impose such conditions, and (b) may contain such directions to the operator or the transport undertaker,

as the court thinks necessary for resolving any difference between the operator and the transport undertaker and for protecting their respective interests.

(9) In this paragraph— “notice period” means the period of 28 days beginning with the day on

which notice requiring alterations is given; “specified apparatus” means the line or other electronic communications

apparatus specified in notice requiring alterations.

What happens to the transport land rights if land ceases to be transport land? 54 (1) This paragraph applies if an operator is exercising a transport land right in relation

to land immediately before a time when it ceases to be transport land.

(2) After that time, this Part of this code — except for paragraph 53 — continues to apply to the land as if it were still transport land (and, accordingly, the operator may continue to exercise any transport land right in relation to the land as if it were still transport land).

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(3) But sub-paragraph (2) is subject to sub-paragraphs (4) to (9).

(4) In the application of this Part of this code to land in accordance with sub- paragraph (2), references to the transport undertaker have effect as references to the occupier of the land.

(5) The application of this Part of this code to land in accordance with sub-paragraph (2) does not authorise the operator—

(a) to cross the land with any line that is not in place at the time when the land ceases to be transport land, or

(b) to install and keep any line or other electronic communications apparatus that is not in place at the time when the land ceases to be transport land.

(6) But sub-paragraph (5) does not affect the power of the operator to replace an existing line or other apparatus (whether in place at the time when the land ceased to be transport land or a replacement itself authorised by this sub-paragraph) with a new line or apparatus which—

(a) is not substantially different from the existing line or apparatus, and (b) is not in a significantly different position.

(7) The occupier of the land may, at any time after the land ceases to be transport land, give the operator notice specifying a date on which this Part of this code is to cease to apply to the land in accordance with this paragraph (“notice of termination”).

(8) That date specified in the notice of termination must fall after the end of the period of 12 months beginning with the day on which the notice of termination is given.

(9) On the date specified in notice of termination in accordance with sub-paragraph (8), the transport land rights cease to be exercisable in relation to the land in accordance with this paragraph.

Offence: operators who do not comply with this Part of this code 55 (1) An operator is guilty of an offence if the operator starts any works in contravention

of any provision of paragraph 49, paragraph 50 or paragraph 51.

(2) An operator guilty of an offence under this paragraph is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(3) In a case where this Part of this code applies in accordance with paragraph 54, the reference in this paragraph to paragraph 49, paragraph 50 or paragraph 51 is a reference to that paragraph as it applies in accordance with paragraph 54.

PART 8

CONFERRAL OF STREET WORK RIGHTS AND THEIR EXERCISE

Introductory 56 This Part of this code makes provision about—

(a) the conferral of street work rights, and (b) the exercise of street work rights.

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Streets and roads 57 In this Part of this code—

“road” means— (a) a road in Scotland which is a public road; (b) a road in Northern Ireland;

“street” means a street in England and Wales which is a maintainable highway (within the meaning of Part 3 of New Roads and Street Works Act 1991), other than one which is a footpath, bridleway or restricted byway that crosses, and forms part of, any agricultural land or any land which is being brought into use for agriculture.

Conferral of street work rights 58 (1) An operator may exercise a street work right for the statutory purposes.

(2) But that is subject to the following provisions of this Part of this code.

The street work rights 59 (1) For the purposes of this code a “street work right”, in relation to an operator, is—

(a) a right to install and keep electronic communications apparatus in, on, under, over, along or across a street or a road;

(b) a right to inspect, maintain, adjust, alter, repair, upgrade or operate electronic communications apparatus which is installed or kept by the exercise of the right under paragraph (a);

(c) a right to carry out any works in, on, under, over, along or across a street or road for or in connection with the exercise of a right under paragraph (a) or (b);

(d) a right to enter any street or road to inspect, maintain, adjust, alter, repair, upgrade or operate electronic communications apparatus which is installed or kept by the exercise of the right under paragraph (a).

(2) The works that may be carried out under sub-paragraph (1)(c) include— (a) breaking up or opening a street or a road; (b) tunnelling or boring under a street or a road; (c) breaking up or opening a sewer, drain or tunnel.

PART 9

CONFERRAL OF TIDAL WATER RIGHTS AND THEIR EXERCISE

Modifications etc. (not altering text) C60 Sch. 3A Pt. 9 applied by 2010 asp 5, s. 36(1) (as amended (28.12.2017) by Digital Economy Act 2017

(c. 30), s. 118(6), Sch. 3 para. 56; S.I. 2017/1286, reg. 2(d)) C61 Sch. 3A Pt. 9 excluded by 1985 c. 48, s. 8A (as amended (28.12.2017) by Digital Economy Act 2017

(c. 30), s. 118(6), Sch. 3 para. 22; S.I. 2017/1286, reg. 2(d))

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Introductory 60 This Part of this code makes provision about—

(a) the conferral of tidal water rights, and (b) the exercise of tidal water rights.

Tidal water or lands 61 In this Part of this code “tidal water or lands” includes—

(a) any estuary or branch of the sea, (b) the shore below mean high water springs, and (c) the bed of any tidal water.

Conferral of tidal water rights 62 (1) An operator may exercise a tidal water right for the statutory purposes.

(2) But that is subject to the following provisions of this Part of this code.

The tidal water rights 63 (1) For the purposes of this code a “tidal water right”, in relation to an operator, is—

(a) a right to install and keep electronic communications apparatus on, under or over tidal water or lands;

(b) a right to inspect, maintain, adjust, alter, repair, upgrade or operate electronic communications apparatus on, under or over the tidal water or lands;

(c) a right to carry out any works on, under or over any tidal water or lands for or in connection with the exercise of a right under paragraph (a) or (b);

(d) a right to enter any tidal water or lands to inspect, maintain, adjust, alter, repair, upgrade or operate electronic communications apparatus which is installed or kept by the exercise of the right under paragraph (a).

(2) The works that may be carried out under sub-paragraph (1)(c) include placing a buoy or seamark.

Exercise of tidal water right: Crown land 64 (1) An operator may not exercise a tidal water right in relation to land in which a Crown

interest subsists unless agreement to the exercise of the right in relation to the land has been given in respect of that interest by the appropriate authority in accordance with paragraph 104.

(2) Where, in connection with an agreement between the operator and the appropriate authority for the exercise of such a right, the operator and the appropriate authority cannot agree the consideration to be paid by the operator, the operator or the appropriate authority may apply to the appointed valuer for a determination of the market value of the right.

(3) An application under sub-paragraph (2) must be made in writing and must include— (a) the proposed terms of the agreement, and (b) the reasoned evidence of the operator and of the appropriate authority as to

the market value of the right.

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(4) As soon as reasonably practicable after receiving such an application, the appointed valuer must—

(a) determine the market value of the tidal water right; and (b) notify the operator and the appropriate authority in writing of its

determination and the reasons for it.

(5) If the agreement mentioned in sub-paragraph (2) or an agreement in substantially the same terms is concluded following a determination under sub-paragraph (4), the consideration payable by the operator must not be more than the market value notified under sub-paragraph (4)(b).

(6) For this purpose the market value of a tidal water right is, subject to sub- paragraph (7), the amount that, at the date the market value is assessed, a willing buyer would pay a willing seller for the right—

(a) in a transaction at arm's length, (b) on the basis that the buyer and seller were acting prudently and with full

knowledge of the transaction, and (c) on the basis that the transaction was subject to the proposed terms set out

in the application.

(7) The market value must be assessed on these assumptions— (a) that the right that the transaction relates to does not relate to the provision or

use of an electronic communications network; (b) that the right in all other respects corresponds to the tidal water right; (c) that there is more than one site which the buyer could use for the purpose

for which the buyer seeks the right.

(8) The appointed valuer may charge a fee in respect of the consideration of an application under sub-paragraph (4) and may apportion the fee between the operator and the appropriate authority as the appointed valuer considers appropriate.

(9) In this paragraph “the appointed valuer” means— (a) such person as the operator and the appropriate authority may agree; (b) if no person is agreed, such person as may be nominated, on the application

of the operator or the appropriate authority, by the President of the Royal Institution of Chartered Surveyors.

PART 10

UNDERTAKER'S WORKS AFFECTING ELECTRONIC COMMUNICATIONS APPARATUS

Modifications etc. (not altering text) C62 Sch. 3A Pt. 10 applied by 1984 c. 54, s. 50(3) (as amended (28.12.2017) by Digital Economy Act 2017

(c. 30), s. 118(6), Sch. 3 para. 14(2); S.I. 2017/1286, reg. 2(d)) C63 Sch. 3A Pt. 10 applied by 1958 c. 69, s. 45(2) (as amended (28.12.2017) by Digital Economy Act 2017

(c. 30), s. 118(6), Sch. 3 para. 5(2); S.I. 2017/1286, reg. 2(d)) C64 Sch. 3A Pt. 10 applied by 1986 c. 31, s. 62(1) (as amended (28.12.2017) by Digital Economy Act 2017

(c. 30), s. 118(6), Sch. 3 para. 25(2); S.I. 2017/1286, reg. 2(d)) C65 Sch. 3A Pt. 10 applied by 1962 c. 58, s. 40(2) (as amended (28.12.2017) by Digital Economy Act 2017

(c. 30), s. 118(6), Sch. 3 para. 7; S.I. 2017/1286, reg. 2(d))

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C66 Sch. 3A Pt. 10 applied by 1964 c. 40, s. 53 (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 8; S.I. 2017/1286, reg. 2(d))

C67 Sch. 3A Pt. 10 applied by 1993 c. 42, Sch. 2 para. 16 (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 33; S.I. 2017/1286, reg. 2(d))

C68 Sch. 3A Pt. 10 applied by 1991 c. 56, Sch. 13 para. 4 (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 30(a)(b); S.I. 2017/1286, reg. 2(d))

C69 Sch. 3A Pt. 10 applied by S.I. 1996/275 (N.I. 2), Sch. 3 para. 3(2) (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 39(3); S.I. 2017/1286, reg. 2(d))

C70 Sch. 3A Pt. 10 applied by 1991 c. 57, Sch. 22 para. 5 (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 31(a); S.I. 2017/1286, reg. 2(d))

C71 Sch. 3A Pt. 10 applied by S.I. 1992/231 N.I. 1), Sch. 4 para. 3(2) (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 32; S.I. 2017/1286, reg. 2(d))

C72 Sch. 3A Pt. 10 applied by 1995 c. 45, Sch. 4 para. 2(7) (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 37; S.I. 2017/1286, reg. 2(d))

C73 Sch. 3A Pt. 10 applied by 1980 c. 66, s. 177(12) (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 11; S.I. 2017/1286, reg. 2(d))

C74 Sch. 3A Pt. 10 applied by 1989 c. 22, Sch. 4 para. 4 (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 27; S.I. 2017/1286, reg. 2(d))

C75 Sch. 3A Pt. 10 applied by 1984 c. 54, s. 75(9) (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 15(2); S.I. 2017/1286, reg. 2(d))

C76 Sch. 3A Pt. 10 applied by 1989 c. 29, Sch. 16 para. 1(6) (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 28; S.I. 2017/1286, reg. 2(d))

C77 Sch. 3A Pt. 10 applied by 1958 c. 24, s. 17 (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 6; S.I. 2017/1286, reg. 2(d))

C78 Sch. 3A Pt. 10 applied by 1980 c. 66, s. 334(8) (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 12(2); S.I. 2017/1286, reg. 2(d))

C79 Sch. 3A Pt. 10 applied by S.I. 1994/426 (N.I. 1), art. 12(1) (as amended (28.12.2017) by Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 35(2); S.I. 2017/1286, reg. 2(d))

C80 Sch. 3A Pt. 10 applied (with modifications) (4.3.2020) by The Midland Metro (Birmingham Eastside Extension) Order 2020 (S.I. 2020/141), art. 1, Sch. 9 para. 3(2) (with arts. 47, 48, Sch. 10 para. 19)

Introductory 65 This Part of this code makes provision about the carrying out of undertaker's works

by undertakers or operators.

Key definitions 66 (1) In this Part of this code—

“undertaker” means a person (including a local authority) of a description set out in any of the entries in the first column of the following table;

“undertaker's works”, in relation to an undertaker of a description set out in a particular entry in the first column of the table, means works of the description set out in the corresponding entry in the second column of the table.

“undertaker” “undertaker's works” A person authorised by any enactment (whether public general or local) or by any order or scheme made under or confirmed by any enactment to

Works that the undertaker is authorised to carry out for the purposes of, or in connection with, the undertaking which it carries on

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carry on any railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking A person (apart from the operator) to whom this code is applied by a direction under section 106 of the Communications Act 2003

Works that the undertaker is authorised to carry out by or in accordance with any provision of this code

Any person to whom this Part of this code is applied by any enactment (whenever passed or made)

Works for the purposes of which this paragraph is applied to the undertaker

(2) In this Part of this code— (a) a reference to undertaker's works which interfere with a network is a

reference to any undertaker's works which involve, or are likely to involve, an alteration of any electronic communications apparatus kept on, under or over any land for the purposes of an operator's network;

(b) a reference to an alteration of any electronic communications apparatus is a reference to a temporary or permanent alteration of the apparatus.

When can an undertaker carry out non-emergency undertaker's works? 67 (1) Before carrying out non-emergency undertaker's works which interfere with a

network, an undertaker must give the operator notice of the intention to carry out the works (“notice of proposed works”).

(2) Notice of proposed works must specify— (a) the nature of the proposed undertaker's works, (b) the alteration of the electronic communications apparatus which the works

involve or are likely to involve, and (c) the time and place at which the works will begin.

(3) The undertaker must not begin the proposed undertaker's works (including the proposed alteration of electronic communications apparatus) until the notice period has ended.

(4) But the undertaker's power to alter electronic communications apparatus (in carrying out the proposed undertaker's works) is subject to paragraph 68.

(5) In this paragraph— “non-emergency undertaker's works” means any undertaker's works

which are not emergency works under paragraph 71; “notice period” means the period of 10 days beginning with the day on

which notice of proposed works is given.

What is the effect of the operator giving counter-notice to the undertaker? 68 (1) This paragraph applies if an undertaker gives an operator notice of proposed works

under paragraph 67.

(2) The operator may, within the notice period, give the undertaker notice (“counter- notice”) stating either—

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(a) that the operator requires the undertaker to make any alteration of the electronic communications apparatus that is necessary or expedient because of the proposed undertaker's works—

(i) under the supervision of the operator, and (ii) to the satisfaction of the operator; or

(b) that the operator intends to make any alteration of the electronic communications apparatus that is necessary or expedient because of the proposed undertaker's works.

(3) In a case where counter-notice contains a statement under sub-paragraph (2)(a), the undertaker must act in accordance with the counter-notice when altering electronic communications apparatus (in carrying out the proposed undertaker's works).

(4) But, if the operator unreasonably fails to provide the required supervision, the undertaker must act in accordance with the counter-notice only insofar as it requires alterations to be made to the satisfaction of the operator.

(5) In a case where counter-notice contains a statement under sub-paragraph (2)(b) (operator intends to make alteration), the undertaker must not alter electronic communications apparatus (in carrying out the proposed undertaker's works).

(6) But that does not prevent the undertaker from making any alteration of electronic communications apparatus which the operator fails to make within a reasonable time.

(7) Expressions defined in paragraph 67 have the same meanings in this paragraph.

What expenses must the undertaker pay? 69 (1) This paragraph applies if an undertaker carries out any non-emergency undertaker's

works in accordance with paragraph 67 (including in a case where counter-notice is given under paragraph 68).

(2) The undertaker must pay the operator the amount of any loss or damage sustained by the operator in consequence of any alteration being made to electronic communications apparatus (in carrying out the works).

(3) The undertaker must pay the operator any expenses incurred by the operator in, or in connection with, supervising the undertaker when altering electronic communications apparatus (in carrying out the works).

(4) Any amount which is not paid in accordance with this paragraph is to be recoverable by the operator from the undertaker in any court of competent jurisdiction.

When can the operator alter apparatus in connection with non-emergency undertaker's works?

70 (1) An operator may make an alteration of electronic communications apparatus if— (a) notice of proposed works has been given, (b) the notice period has ended, and (c) counter-notice has been given which states (in accordance with paragraph

68(2)(b)) that the operator intends to make the alteration.

(2) If the operator makes any alteration in accordance with this paragraph, the undertaker must pay the operator—

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(a) any expenses incurred by the operator in, or in connection with, making the alteration; and

(b) the amount of any loss or damage sustained by the operator in consequence of the alteration being made.

(3) Any amount which is not paid in accordance with sub-paragraph (2) is to be recoverable by the operator from the undertaker in any court of competent jurisdiction.

(4) Expressions defined in paragraph 67 have the same meanings in this paragraph.

When can an undertaker carry out emergency undertaker's works? 71 (1) An undertaker may, in carrying out emergency undertaker's works, make an

alteration of any electronic communications apparatus kept on, under or over any land for the purposes of an operator's network.

(2) The undertaker must give the operator notice of the emergency undertaker's works as soon as practicable after beginning them.

(3) This paragraph does not authorise the undertaker to make an alteration of apparatus after any failure by the undertaker to give notice in accordance with sub- paragraph (2).

(4) The undertaker must make the alteration to the satisfaction of the operator.

(5) If the undertaker makes any alteration in accordance with this paragraph, the undertaker must pay the operator—

(a) any expenses incurred by the operator in, or in connection with, supervising the undertaker when making the alteration; and

(b) the amount of any loss or damage sustained by the operator in consequence of the alteration being made.

(6) Any amount which is not paid in accordance with sub-paragraph (5) is to be recoverable by the operator from the undertaker in any court of competent jurisdiction.

(7) In this paragraph “emergency undertaker's works” means undertaker's works carried out in order to stop anything already occurring, or to prevent anything imminent from occurring, which is likely to cause—

(a) danger to persons or property, (b) interference with the exercise of any functions conferred or imposed on the

undertaker by or under any enactment, or (c) substantial loss to the undertaker,

and any other works which it is reasonable (in all the circumstances) to carry out with those works.

Offence: undertakers who do not comply with this Part of this code 72 (1) An undertaker, or an agent of an undertaker, is guilty of an offence if that person—

(a) makes an alteration of electronic communications apparatus in carrying out non-emergency undertaker's works, and

(b) does so—

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(i) without notice of proposed works having been given in accordance with paragraph 67, or

(ii) (in a case where such notice is given) before the end of the notice period under paragraph 67.

(2) An undertaker, or an agent of an undertaker, is guilty of an offence if that person— (a) makes an alteration of electronic communications apparatus in carrying out

non-emergency undertaker's works, and (b) unreasonably fails to comply with any reasonable requirement of the

operator under this Part of this code when doing so.

(3) An undertaker, or an agent of an undertaker, is guilty of an offence if that person— (a) makes an alteration of electronic communications apparatus in carrying out

emergency undertaker's works, and (b) does so without notice of emergency undertaker's works having been given

in accordance with paragraph 71.

(4) A person guilty of an offence under this paragraph is liable on summary conviction to—

(a) a fine not exceeding level 4 on the standard scale, if the service provided by the operator's network is interrupted by the works or failure, or

(b) a fine not exceeding level 3 on the standard scale, if that service is not interrupted.

(5) This paragraph does not apply to a Northern Ireland department.

PART 11

OVERHEAD APPARATUS

Introductory 73 This Part of this code—

(a) confers a power on operators to install and keep certain overhead apparatus, and

(b) imposes a duty on operators to affix notices to certain overhead apparatus.

Power to fly lines 74 (1) This paragraph applies where any electronic communications apparatus is kept on or

over any land for the purposes of an operator's network.

(2) The operator has the right, for the statutory purposes, to install and keep lines which—

(a) pass over other land adjacent to, or in the vicinity of, the land on or over which the apparatus is kept,

(b) are connected to that apparatus, and (c) are not, at any point where they pass over the other land, less than three

metres above the ground or within two metres of any building over which they pass.

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(3) Sub-paragraph (2) does not authorise the installation or keeping on or over any land of—

(a) any electronic communications apparatus used to support, carry or suspend a line installed under sub-paragraph (2), or

(b) any line which, as a result of its position, interferes with the carrying on of any business carried on on that land.

(4) 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).

Duty to attach notices to overhead apparatus 75 (1) This paragraph applies where—

(a) an operator has, for the purposes of the operator's network, installed any electronic communications apparatus, and

(b) the whole or part of the apparatus is at a height of three metres or more above the ground.

(2) The operator must, before the end of the period of three days beginning with the day after that on which the installation is completed, in a secure and durable manner attach a notice—

(a) to every major item of apparatus installed, or (b) if no major item of apparatus is installed, to the nearest major item of

electronic communications apparatus to which the apparatus that is installed is directly or indirectly connected.

(3) A notice attached under sub-paragraph (2)— (a) must be attached in a position where it is reasonably legible, and (b) must give the name of the operator and an address in the United Kingdom at

which any notice of objection may be given under paragraph 77(5) in respect of the apparatus in question.

(4) Any person giving such a notice at that address in respect of that apparatus is to be treated as having given that address for the purposes of paragraph 91(2).

(5) An operator who breaches the requirements of this paragraph is guilty of an offence and liable on summary conviction to a fine not exceeding level 2 on the standard scale.

(6) In any proceedings for an offence under this paragraph it is a defence for the person charged to prove that the person took all reasonable steps and exercised all due diligence to avoid committing the offence.

PART 12

RIGHTS TO OBJECT TO CERTAIN APPARATUS

Introductory 76 This Part of this code makes provision conferring rights to object to certain kinds

of apparatus, and makes provision about— (a) the cases in which and persons by whom a right can be exercised, and

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(b) the power and procedures of the court if an objection is made.

When and by whom can a right to object be exercised? 77 (1) A right to object under this Part of this code is available where, pursuant to the right

in paragraph 62, an operator keeps electronic communications apparatus installed on, under or over tidal water or lands within the meaning of Part 9 of this code.

(2) In that case a person has a right to object under this Part of this code if the person— (a) is an occupier of, or has an interest in, the tidal water or lands, (b) is not bound by a code right enabling the operator to keep the apparatus

installed on, under or over the tidal water or lands, and (c) is not a person with the benefit of a Crown interest in the tidal water or lands.

(3) A right to object under this Part of this code is available where an operator keeps a line installed over land pursuant to the right in paragraph 74.

(4) In that case a person has a right to object under this Part of this code if the person— (a) is an occupier of, or has an interest in, the land, and (b) is not bound by a code right enabling the operator to keep the apparatus

installed over the land.

(5) A right to object under this Part of this code is available where— (a) electronic communications apparatus is kept on or over land for the purposes

of an operator's network, and (b) the whole or any part of that apparatus is at a height of three metres or more

above the ground.

(6) In that case a person has a right to object under this Part of this code if— (a) the person is an occupier of, or has an interest in, any neighbouring land, and (b) because of the nearness of the neighbouring land to the land on or over which

the apparatus is kept— (i) the enjoyment of the neighbouring land is capable of being

prejudiced by the apparatus, or (ii) any interest in that land is capable of being prejudiced by the

apparatus.

(7) There is no right to object under this Part of this code in respect of electronic communications apparatus if the apparatus—

(a) replaces any electronic communications apparatus which is not substantially different from the new apparatus, and

(b) is not in a significantly different position.

How may a right to object be exercised? 78 (1) A person with a right to object under this Part (“the objector”) may exercise the right

by giving a notice to the operator.

(2) The right to object that the person has, and the procedure that applies to that right, depends on whether—

(a) the notice is given before the end of the period of 12 months beginning with the date on which installation of the apparatus was completed (see paragraph 79), or

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(b) the notice is given after the end of that period (see paragraph 80).

What is the procedure if the objection is made within 12 months of installation? 79 (1) This paragraph applies if the notice is given before the end of the period of 12 months

beginning with the date on which installation of the apparatus was completed.

(2) At any time after the end of the period of two months beginning with the date on which the notice is given, but before the end of the period of four months beginning with that date, the objector may apply to the court to have the objection upheld.

(3) The court must uphold the objection if the following conditions are met.

(4) The first condition is that the apparatus appears materially to prejudice the objector's enjoyment of, or interest in, the land by reference to which the objection is made.

(5) The second condition is that the court is not satisfied that the only possible alterations of the apparatus will—

(a) substantially increase the cost or diminish the quality of the service provided by the operator's network to persons who have, or may in future have, access to it,

(b) involve the operator in substantial additional expenditure (disregarding any expenditure caused solely by the fact that any proposed alteration was not adopted originally or, as the case may be, that the apparatus has been unnecessarily installed), or

(c) give to any person a case at least as good as the objector has to have an objection under this paragraph upheld.

(6) If the court upholds an objection under this paragraph it may by order do any of the following—

(a) direct the alteration of the apparatus to which the objection relates; (b) authorise the installation (instead of the apparatus to which the objection

relates), in a manner and position specified in the order, of any apparatus specified in the order;

(c) direct that no objection may be made under this paragraph in respect of any apparatus the installation of which is authorised by the court.

(7) Where an objector has both given a notice under paragraph 78 and applied for compensation under any of the other provisions of this code—

(a) the court may give such directions as it thinks fit for ensuring that no compensation is paid until any proceedings under this paragraph have been disposed of, and

(b) if the court makes an order under this paragraph, it may provide in that order for some or all of the compensation otherwise payable under this code to the objector not to be so payable, or, if the case so requires, for some or all of any compensation paid under this code to the objector to be repaid to the operator.

(8) For the purposes of sub-paragraph (5)(c), the court has the power on an application under this paragraph to give the objector directions for bringing the application to the notice of such other interested persons as it thinks fit.

(9) This paragraph is subject to paragraph 81.

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What is the procedure if the objection is made later than 12 months after installation? 80 (1) This paragraph applies if the notice is given after the end of the period of 12 months

beginning with the date on which installation of the apparatus was completed.

(2) At any time after the end of the period of two months beginning with the date on which the notice is given, but before the end of the period of four months beginning with that date, the objector may apply to the court to have the objection upheld.

(3) The court may uphold the objection only if it is satisfied that— (a) the alteration is necessary to enable the objector to carry out a proposed

improvement of the land by reference to which the objection is made, and (b) the alteration will not substantially interfere with any service which is or is

likely to be provided using the operator's network.

(4) If the court upholds an objection under this paragraph it may by order direct the alteration of the apparatus to which the objection relates.

(5) An order under this paragraph may provide for the alteration to be carried out with such modifications, on such terms and subject to such conditions as the court thinks fit.

(6) But the court must not include any such modifications, terms or conditions in its order without the consent of the objector, and if such consent is not given may refuse to make an order under this paragraph.

(7) An order made under this paragraph must, unless the court otherwise thinks fit, require the objector to reimburse the operator in respect of any expenses which the operator incurs in or in connection with the execution of any works in compliance with the order.

(8) This paragraph is subject to paragraph 81.

(9) In this paragraph “improvement” includes development and change of use.

What limitations are there on the court's powers under paragraph 79 or 80? 81 (1) This paragraph applies where the court is considering making—

(a) an order under paragraph 79 directing the alteration of any apparatus or authorising the installation of any apparatus, or

(b) an order under paragraph 80 directing the alteration of any apparatus.

(2) The court must not make the order unless it is satisfied— (a) that the operator has all such rights as it appears to the court appropriate that

the operator should have for the purpose of making the alteration or, as the case may be, installing the apparatus, or

(b) that— (i) the operator would have all those rights if the court, on an application

under paragraph 20, imposed an agreement on the operator and another person, and

(ii) it would be appropriate for the court, on such an application, to impose such an agreement.

(3) For the purposes of avoiding the need for the agreement of any person to the alteration or installation of any apparatus, the court has the same powers as it would have if

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an application had been duly made under paragraph 20 for an order imposing such an agreement.

(4) For the purposes of this paragraph, the court has the power on an application under paragraph 79 or 80 to give the objector directions for bringing the application to the notice of such other interested persons as it thinks fit.

PART 13

RIGHTS TO LOP TREES

Rights to lop trees 82 (1) This paragraph applies where—

(a) a tree or other vegetation overhangs a street in England and Wales or Northern Ireland or a road in Scotland, and

(b) the tree or vegetation— (i) obstructs, or will or may obstruct, relevant electronic

communications apparatus, or (ii) interferes with, or will or may interfere with, such apparatus.

(2) In sub-paragraph (1) “relevant electronic communications apparatus” means electronic communications apparatus which—

(a) is installed, or about to be installed, on land, and (b) is used, or to be used, for the purposes of an operator's network.

(3) The operator may, by notice to the occupier of the land on which the tree or vegetation is growing, require the tree to be lopped or the vegetation to be cut back to prevent the obstruction or interference.

(4) If, within the period of 28 days beginning with the day on which the notice is given, the occupier gives the operator a counter-notice objecting to the lopping of the tree or cutting back of the vegetation, the notice has effect only if confirmed by an order of the court.

(5) Sub-paragraph (6) applies if at any time a notice under sub-paragraph (3) has not been complied with and—

(a) the period of 28 days beginning with the day on which the notice was given has expired without a counter-notice having been given, or

(b) an order of the court confirming the notice has come into force.

(6) The operator may cause the tree to be lopped or the vegetation to be cut back.

(7) Where the operator lops a tree or cuts back vegetation in exercise of the power in sub-paragraph (6) the operator must do so in a husband-like manner and in such a way as to cause the minimum damage to the tree or vegetation.

(8) Sub-paragraph (9) applies where— (a) a notice under sub-paragraph (3) is complied with (either without a counter-

notice having been given or after the notice has been confirmed), or (b) the operator exercises the power in sub-paragraph (6).

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(9) The court must, on an application made by a person who has sustained loss or damage in consequence of the lopping of the tree or cutting back of the vegetation or who has incurred expenses in complying with the notice, order the operator to pay that person such compensation in respect of the loss or damage as it thinks fit.

PART 14

COMPENSATION UNDER THE CODE

Introductory 83 This Part of this code makes provision about compensation under this code.

Compensation where agreement imposed or apparatus removed 84 (1) This paragraph applies to the following powers of the court to order an operator to

pay compensation to a person— (a) the power in paragraph 25(1) (compensation where order made imposing

agreement on person); (b) the power in paragraph 44(5) (compensation in relation to removal of the

apparatus from the land).

(2) Depending on the circumstances, the power of the court to order the payment of compensation for loss or damage includes power to order payment for—

(a) expenses (including reasonable legal and valuation expenses, subject to the provisions of any enactment about the powers of the court by whom the order for compensation is made to award costs or, in Scotland, expenses),

(b) diminution in the value of the land, and (c) costs of reinstatement.

(3) For the purposes of assessing such compensation for diminution in the value of land, the following provisions apply with any necessary modifications as they apply for the purposes of assessing compensation for the compulsory purchase of any interest in land—

(a) in relation to England and Wales, rules (2) to (4) set out in section 5 of the Land Compensation Act 1961;

(b) in relation to Scotland, rules (2) to (4) set out in section 12 of the Land Compensation (Scotland) Act 1963;

(c) in relation to Northern Ireland, rules (2) to (4) set out in Article 6(1) of the Land Compensation (Northern Ireland) Order 1982 (SI 1982/712 (NI 9)).

(4) In the application of this paragraph to England and Wales, section 10(1) to (3) of the Land Compensation Act 1973 (compensation in respect of mortgages, trusts of land and settled land) applies in relation to such compensation for diminution in the value of land as it applies in relation to compensation under Part 1 of that Act.

(5) In the application of this paragraph to Scotland, section 10(1) and (2) of the Land Compensation (Scotland) Act 1973 (compensation in respect of restricted interests in land) applies in relation to such compensation for diminution in the value of land as it applies in relation to compensation under Part 1 of that Act.

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(6) In the application of this paragraph to Northern Ireland, Article 13(1) to (3) of the Land Acquisition and Compensation (Northern Ireland) Order 1973 (SI 1973/1896 (NI 21)) (compensation in respect of mortgages, trusts for sale and settlements) applies in relation to such compensation for diminution in the value of land as it applies in relation to compensation under Part II of that Order.

(7) Where a person has a claim for compensation to which this paragraph applies and a claim for compensation under any other provision of this code in respect of the same loss, the compensation payable to that person must not exceed the amount of that person's loss.

Compensation for injurious affection to neighbouring land etc 85 (1) This paragraph applies where a right conferred by or in accordance with any

provision of Parts 2 to 9 of this code is exercised by an operator.

(2) In the application of this paragraph to England and Wales, compensation is payable by the operator under section 10 of the Compulsory Purchase Act 1965 (compensation for injurious affection to neighbouring land) as if that section applied in relation to injury caused by the exercise of such a right as it applies in relation to injury caused by the execution of works on land that has been compulsorily acquired.

(3) In the application of this paragraph to Scotland, compensation is payable by the operator under section 6 of the Railway Clauses Consolidation (Scotland) Act 1845 as if that section applied in relation to injury caused by the exercise of such a right as it applies in relation to injury caused by the execution of works on land that has been taken or used for the purpose of a railway.

(4) Any question as to a person's entitlement to compensation by virtue of sub- paragraph (3), or as to the amount of that compensation, is, in default of agreement, to be determined by the Lands Tribunal for Scotland.

(5) In the application of this paragraph to Northern Ireland, compensation is payable by the operator under Article 18 of the Land Compensation (Northern Ireland) Order 1982 (SI 1982/712 (NI 9)) as if that section applied in relation to injury caused by the exercise of such a right as it applies in relation to injury caused by the execution of works on land that has been compulsorily acquired.

(6) Any question as to a person's entitlement to compensation by virtue of sub- paragraph (5), or as to the amount of that compensation, is, in default of agreement, to be determined by the Lands Tribunal for Northern Ireland.

(7) Compensation is payable on a claim for compensation under this paragraph only if the amount of the compensation exceeds £50.

(8) Compensation is payable to a person under this paragraph irrespective of whether the person claiming the compensation has any interest in the land in relation to which the right referred to in sub-paragraph (1) is exercised.

(9) Compensation under this paragraph may include reasonable legal and valuation expenses, subject to the provisions of any enactment about the powers of the court or tribunal by whom an order for compensation is made to award costs or, in Scotland, expenses.

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No other compensation available 86 Except as provided by any provision of Parts 2 to 13 of this code or this Part, an

operator is not liable to compensate any person for, and is not subject to any other liability in respect of, any loss or damage caused by the lawful exercise of any right conferred by or in accordance with any provision of those Parts.

PART 15

NOTICES UNDER THE CODE

Introductory 87 This Part makes provision—

(a) about requirements for the form of notices given under this code by operators,

(b) about requirements for the form of notices given under this code by persons other than operators, and

(c) about procedures for giving notices.

Notices given by operators 88 (1) A notice given under this code by an operator must—

(a) explain the effect of the notice, (b) explain which provisions of this code are relevant to the notice, and (c) explain the steps that may be taken by the recipient in respect of the notice.

(2) If OFCOM have prescribed the form of a notice which may or must be given by an operator under a provision of this code, a notice given by an operator under that provision must be in that form.

(3) A notice which does not comply with this paragraph is not a valid notice for the purposes of this code.

(4) Sub-paragraph (3) does not prevent the person to whom the notice is given from relying on the notice if the person chooses to do so.

(5) In any proceedings under this code a certificate issued by OFCOM stating that a particular form of notice has been prescribed by them as mentioned in this paragraph is conclusive evidence of that fact.

Notices given by others 89 (1) Sub-paragraph (2) applies to a notice given under paragraph 31(1), 33(1), 39(1) or

40(2) by a person other than an operator.

(2) If OFCOM have prescribed the form of a notice given under the provision in question by a person other than an operator, the notice must be in that form.

(3) A notice which does not comply with sub-paragraph (2) is not a valid notice for the purposes of this code.

(4) Sub-paragraph (3) does not prevent the operator to whom the notice is given from relying on the notice if the operator chooses to do so.

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(5) Sub-paragraph (6) applies to a notice given under any other provision of this code by a person other than an operator if—

(a) OFCOM have prescribed the form of a notice given under that provision by a person other than an operator,

(b) the notice is given in response to a notice given by an operator, and (c) the operator has, in giving the notice, drawn the person's attention to the form

prescribed by OFCOM.

(6) The notice is a valid notice for the purposes of this code, but the person giving the notice must bear any costs incurred by the operator as a result of the notice not being in that form.

(7) In any proceedings under this code a certificate issued by OFCOM stating that a particular form of notice has been prescribed by them as mentioned in this paragraph is conclusive evidence of that fact.

Prescription of notices by OFCOM 90 (1) OFCOM must prescribe the form of a notice to be given under each provision of this

code that requires a notice to be given.

(2) OFCOM may from time to time amend or replace a form prescribed under sub- paragraph (1).

(3) Before prescribing a form for the purposes of this code, OFCOM must consult operators and such other persons as OFCOM think appropriate.

(4) Sub-paragraph (3) does not apply to the amendment or replacement of a form prescribed under sub-paragraph (1).

Procedures for giving notice 91 (1) A notice given under this code must not be sent by post unless it is sent by a registered

post service or by recorded delivery.

(2) For the purposes, in the case of a notice under this code, of section 394 of this Act (service of notifications and other documents) and section 7 of the Interpretation Act 1978 (references to service by post), the proper address of a person (“P”) is—

(a) if P has given the person giving the notice an address for service under this code, that address, and

(b) otherwise, the address given by section 394.

(3) Sub-paragraph (4) applies if it is not practicable, for the purposes of giving a notice under this code, to find out after reasonable enquiries the name and address of a person who is the occupier of land for the purposes of this code.

(4) A notice may be given under this code to the occupier — (a) by addressing it to a person by the description of “occupier” of the land (and

describing the land), and (b) by delivering it to a person who is on the land or, if there is no person on

the land to whom it can be delivered, by affixing it, or a copy of it, to a conspicuous object on the land.

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(5) Sub-paragraph (6) applies if it is not practicable, for the purposes of giving a notice under this code, to find out after reasonable enquiries the name and address of the owner of an interest in land.

(6) A notice may be given under this code to the owner— (a) by addressing it to a person by the description of “owner” of the interest (and

describing the interest and the land), and (b) by delivering it to a person who is on the land or, if there is no person on

the land to whom it can be delivered, by affixing it, or a copy of it, to a conspicuous object on the land.

PART 16

ENFORCEMENT AND DISPUTE RESOLUTION

Introductory 92 This Part of this code makes provision about—

(a) the court or tribunal by which agreements and rights under this code may be enforced,

(b) the meaning of references to “the court” in this code, and (c) the power of the Secretary of State by regulations to confer jurisdiction

under this code on other tribunals.

Enforcement of agreements and rights 93 An agreement under this code, and any right conferred by this code, may be

enforced— (a) in the case of an agreement imposed by a court or tribunal, by the court or

tribunal which imposed the agreement, (b) in the case of any agreement or right, by any court or tribunal which for the

time being has the power to impose an agreement under this code, or (c) in the case of any agreement or right, by any court of competent

jurisdiction.

Meaning of “the court” 94 (1) In this code “the court” means—

(a) in relation to England and Wales, the county court, (b) in relation to Scotland, the sheriff court, and (c) in relation to Northern Ireland, a county court.

(2) Sub-paragraph (1) is subject to provision made by regulations under paragraph 95.

Power to confer jurisdiction on other tribunals 95 (1) The Secretary of State may by regulations provide for a function conferred by this

code on the court to be exercisable by any of the following— (a) in relation to England, the First-tier Tribunal; (b) in relation to England and Wales, the Upper Tribunal;

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(c) in relation to Scotland, the Lands Tribunal for Scotland; (d) in relation to Northern Ireland, the Lands Tribunal for Northern Ireland.

(2) Regulations under sub-paragraph (1) may make provision for the function to be exercisable by a tribunal to which the regulations apply—

(a) instead of by the court, or (b) as well as by the court.

(3) The Secretary of State may by regulations make provision— (a) requiring proceedings to which regulations under sub-paragraph (1) apply to

be commenced in the court or in a tribunal to which the regulations apply; (b) enabling the court or such a tribunal to transfer such proceedings to a tribunal

which has jurisdiction in relation to them by virtue of such regulations or to the court.

(4) The power in section 402(3)(c) for regulations under sub-paragraph (1) or (3) to make consequential provision includes power to make provision which amends, repeals or revokes or otherwise modifies the application of any enactment.

(5) Before making regulations under sub-paragraph (1) or (3) the Secretary of State must—

(a) so far as the regulations relate to Scotland, consult the Scottish Ministers; (b) so far as the regulations relate to Northern Ireland, consult the Department

of Justice in Northern Ireland.

Award of costs by tribunal 96 (1) Where in any proceedings a tribunal exercises functions by virtue of regulations

under paragraph 95(1), it may make such order as it thinks fit as to costs, or, in Scotland, expenses.

(2) The matters a tribunal must have regard to in making such an order include in particular the extent to which any party is successful in the proceedings.

Applications to the court 97 Regulation 3 of the Electronic Communications and Wireless Telegraphy

Regulations 2011 (SI 2011/1210) makes provision about the time within which certain applications to the court under this code must be determined.

Appeals in Northern Ireland 98 Article 60 of the County Courts (Northern Ireland) Order 1980 (ordinary appeals

from the county court in civil cases) is to apply in relation to any determination of the court in Northern Ireland under this code in the same manner as it applies in relation to any decree of the court made in the exercise of the jurisdiction conferred by Part 3 of that Order.

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PART 17

SUPPLEMENTARY PROVISIONS

Relationship between this code and existing law 99 (1) This code does not authorise the contravention of any provision of an enactment

passed or made before the coming into force of this code.

(2) Sub-paragraph (1) does not apply if and to the extent that an enactment makes provision to the contrary.

Relationship between this code and agreements with operators 100 (1) This code does not affect any rights or liabilities arising under an agreement to which

an operator is a party.

(2) Sub-paragraph (1) does not apply in relation to paragraph 99 or Parts 3 to 6 of this code.

Ownership of property 101 The ownership of property does not change merely because the property is installed

on or under, or affixed to, any land by any person in exercise of a right conferred by or in accordance with this code.

Conduits 102 (1) This code does not authorise an operator to do anything inside a relevant conduit

without the agreement of the authority with control of the conduit.

(2) The agreement of the authority with control of a public sewer is sufficient in all cases to authorise an operator to exercise any of the rights under this code in order to do anything wholly inside that sewer.

(3) In this paragraph the following expressions have the same meanings as in section 98 of the Telecommunications Act 1984—

(a) “public sewer” and “relevant conduit”; (b) references to the authority with control of a relevant conduit.

Duties for OFCOM to prepare codes of practice 103 (1) OFCOM must prepare and publish a code of practice dealing with—

(a) the provision of information for the purposes of this code by operators to persons who occupy or have an interest in land;

(b) the conduct of negotiations for the purposes of this code between operators and such persons;

(c) the conduct of operators in relation to persons who occupy or have an interest in land adjoining land on, under or over which electronic communications apparatus is installed;

(d) such other matters relating to the operation of this code as OFCOM think appropriate.

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(2) OFCOM must prepare and publish standard terms which may (but need not) be used in agreements under this code.

(3) OFCOM may from time to time— (a) amend or replace a code of practice or standard terms published under this

paragraph; (b) publish the code or terms as amended or (as the case may be) the replacement

code or terms.

(4) Before publishing a code of practice or standard terms under this paragraph, OFCOM must consult operators and such other persons as OFCOM think appropriate.

(5) Sub-paragraph (4) does not apply to— (a) the publication of amendments to a code of practice or standard terms, or (b) the publication of a replacement code or replacement terms.

Modifications etc. (not altering text) C81 Sch. 3A para. 103(2) applied by S.I. 1993/3160 (N.I. 15), Sch. 9 para. 2(2) (as amended (28.12.2017) by

Digital Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 34(2); S.I. 2017/1286, reg. 2(d)) C82 Sch. 3A para. 103(2) applied by 2003 asp 2, Sch. 1 para. 12 (as amended (28.12.2017) by Digital

Economy Act 2017 (c. 30), s. 118(6), Sch. 3 para. 49(2); S.I. 2017/1286, reg. 2(d)) C83 Sch. 3A para. 103(2) applied by 1997 c. 8, s. 212(7) (as amended (28.12.2017) by Digital Economy Act

2017 (c. 30), s. 118(6), Sch. 3 para. 41(2); S.I. 2017/1286, reg. 2(d)) C84 Sch. 3A para. 103(2) applied by 1984 c. 54, s. 132(4) (as amended (28.12.2017) by Digital Economy

Act 2017 (c. 30), s. 118(6), Sch. 3 para. 16(3); S.I. 2017/1286, reg. 2(d)) C85 Sch. 3A para. 103(2) applied by 1990 c. 8, s. 256(5) (as amended (28.12.2017) by Digital Economy Act

2017 (c. 30), s. 118(6), Sch. 3 para. 29(2); S.I. 2017/1286, reg. 2(d))

Application of this code to the Crown 104 (1) This code applies in relation to land in which there subsists, or at any material time

subsisted, a Crown interest as it applies in relation to land in which no such interest subsists.

(2) In this code “Crown interest” means— (a) an interest which belongs to Her Majesty in right of the Crown, (b) an interest which belongs to Her Majesty in right of the Duchy of Lancaster, (c) an interest which belongs to the Duchy of Cornwall, (d) an interest which belongs to a government department or which is held in

trust for Her Majesty for the purposes of a government department, or (e) an interest which belongs to an office-holder in the Scottish Administration

or which is held in trust for Her Majesty for the purposes of the Scottish Administration by such an office-holder.

(3) This includes, in particular— (a) an interest which belongs to Her Majesty in right of Her Majesty's

Government in Northern Ireland, and (b) an interest which belongs to a Northern Ireland department or which is held

in trust for Her Majesty for the purposes of a Northern Ireland department.

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(4) Where an agreement is required by this code to be given in respect of any Crown interest subsisting in any land, the agreement must be given by the appropriate authority.

(5) Where a notice under this code is required to be given in relation to land in which a Crown interest subsists, the notice must be given by or to the appropriate authority (as the case may require).

(6) In this paragraph “the appropriate authority” means— (a) in the case of land belonging to Her Majesty in right of the Crown, the

Crown Estate Commissioners or the relevant person or, as the case may be, the government department or office-holder in the Scottish Administration having the management of the land in question;

(b) in the case of land belonging to Her Majesty in right of the Duchy of Lancaster, the Chancellor of the Duchy of Lancaster;

(c) in the case of land belonging to the Duchy of Cornwall, such person as the Duke of Cornwall, or the possessor for the time being of the Duchy of Cornwall, appoints;

(d) in the case of land belonging to an office-holder in the Scottish Administration or held in trust for Her Majesty by such an office-holder for the purposes of the Scottish Administration, the office-holder;

(e) in the case of land belonging to Her Majesty in right of Her Majesty's Government in Northern Ireland, the Northern Ireland department having the management of the land in question;

(f) in the case of land belonging to a government department or a Northern Ireland department or held in trust for Her Majesty for the purposes of a government department or a Northern Ireland department, that department.

(7) In sub-paragraph (6)(a) “relevant person”, in relation to land to which section 90B(5) of the Scotland Act 1998 applies, means the person having the management of that land.

(8) Any question as to the authority that is the appropriate authority in relation to any land is to be referred to the Treasury, whose decision is final.

(9) Paragraphs 55 (offence in relation to transport land rights) and 75(5) (offence in relation to notices on overhead apparatus) do not apply where this code applies in the case of the Secretary of State or a Northern Ireland department by virtue of section 106(3)(b).

(10) References in this paragraph to an office-holder in the Scottish Administration are to be construed in accordance with section 126(7) of the Scotland Act 1998.

Meaning of “occupier” 105 (1) References in this code to an occupier of land are to the occupier of the land for the

time being.

(2) References in this code to an occupier of land, in relation to a footpath or bridleway that crosses and forms part of agricultural land, are to the occupier of that agricultural land.

(3) Sub-paragraph (4) applies in relation to land which is—

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(a) a street in England and Wales or Northern Ireland, other than a footpath or bridleway within sub-paragraph (2), or

(b) a road in Scotland, other than such a footpath or bridleway.

(4) References in this code to an occupier of land— (a) in relation to such a street in England and Wales, are to the street managers

within the meaning of Part 3 of the New Roads and Street Works Act 1991, (b) in relation to such a street in Northern Ireland, are to the street managers

within the meaning of the Street Works (Northern Ireland) Order 1995 (SI 1995/3210 (NI 19)), and

(c) in relation to such a road in Scotland, are to the road managers within the meaning of Part 4 of the New Roads and Street Works Act 1991.

(5) Sub-paragraph (6) applies in relation to land which— (a) is unoccupied, and (b) is not a street in England and Wales or Northern Ireland or a road in Scotland.

(6) References in this code to an occupier of land, in relation to land within sub- paragraph (5), are to—

(a) the person (if any) who for the time being exercises powers of management or control over the land, or

(b) if there is no person within paragraph (a), to every person whose interest in the land would be prejudicially affected by the exercise of a code right in relation to the land.

(7) In this paragraph— (a) “agricultural land” includes land which is being brought into use for

agriculture, and (b) references in relation to England and Wales to a footpath or bridleway

include a restricted byway.

Lands Tribunal for Scotland procedure rules 106 The power to make rules under section 3(6) of the Lands Tribunal Act 1949 (Lands

Tribunal for Scotland procedure rules) for the purposes of this code or regulations made under it is exercisable by the Scottish Ministers instead of by the Secretary of State (and any reference there to the approval of the Treasury does not apply).

Arbitrations in Scotland 107 Until the Arbitration (Scotland) Act 2010 is in force in relation to any arbitrations

carried out under or by virtue of this code, that Act applies as if it were in force in relation to those arbitrations.

General interpretation 108 (1) In this code—

“agriculture” and “agricultural”— (a) in relation to England and Wales, have the same meanings as in the

Highways Act 1980, (b) in relation to Scotland, have the same meanings as in the Town and

Country Planning (Scotland) Act 1997, and

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(c) in relation to Northern Ireland, have the same meanings as in the Agriculture Act (Northern Ireland) 1949;

“bridleway” and “footpath”— (a) in relation to England and Wales, have the same meanings as in the

Highways Act 1980, (b) in relation to Scotland, have the same meanings as Part 3 of the

Countryside (Scotland) Act 1967, and (c) in relation to Northern Ireland, mean a way over which the public

have, by virtue of the Access to the Countryside (Northern Ireland) Order 1983 (SI 1983/1895 (NI 18)), a right of way (respectively) on horseback and on foot;

“code agreement” has the meaning given by paragraph 29(5); “Crown interest” has the meaning given by paragraph 104(2) and (3); “enactment” includes—

(a) an enactment comprised in subordinate legislation within the meaning of the Interpretation Act 1978,

(b) an enactment comprised in, or in an instrument made under, a Measure or Act of the National Assembly for Wales,

(c) an enactment comprised in, or in an instrument made under, an Act of the Scottish Parliament, and

(d) an enactment comprised in, or in an instrument made under, Northern Ireland legislation;

“land” does not include electronic communications apparatus; “landowner” has the meaning given by paragraph 37(1); “lease” includes—

(a) in relation to England and Wales and Northern Ireland, any leasehold tenancy (whether in the nature of a head lease, sub-lease or underlease) and any agreement to grant such a tenancy but not a mortgage by demise or sub-demise, and

(b) in relation to Scotland, any sub-lease and any agreement to grant a sub- lease,

and “lessee” is to be construed accordingly; “relevant person” has the meaning given by paragraph 20(1); “restricted byway” has the same meaning as in Part 2 of the Countryside and Rights of Way Act 2000; “road”—

(a) in relation to Scotland, has the same meaning as in Part 4 of the New Roads and Street Works Act 1991;

(b) in relation to Northern Ireland, has the same meaning as in the Roads (Northern Ireland) Order 1993 (SI 1993/3160 (NI 15));

“site provider” has the meaning given by paragraph 30(1); “street”—

(a) in relation to England and Wales, has the same meaning as in Part 3 of the New Roads and Street Works Act 1991, and

(b) in relation to Northern Ireland, has the same meaning as in the Street Works (Northern Ireland) Order 1995 (SI 1995/3210 (NI 19)).

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(2) In this code, references to the alteration of any apparatus include references to the moving, removal or replacement of the apparatus.]

SCHEDULE 4 Section 118

COMPULSORY PURCHASE AND ENTRY FOR EXPLORATORY PURPOSES

Interpretation 1 In this Schedule—

“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).

Commencement Information I615 Sch. 4 para. 1 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I616 Sch. 4 para. 1 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

General duties with respect to powers under Schedule 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— (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.

Commencement Information I617 Sch. 4 para. 2 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I618 Sch. 4 para. 2 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

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Compulsory purchase of land: England and Wales 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—

(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.

Commencement Information I619 Sch. 4 para. 3 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I620 Sch. 4 para. 3 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Compulsory purchase of land: Scotland 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— (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.

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(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.

Commencement Information I621 Sch. 4 para. 4 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I622 Sch. 4 para. 4 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Compulsory purchase of land: Northern Ireland 5 (1) Where a code operator proposes to acquire, otherwise than by agreement, any land

in Northern Ireland required by him— (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),

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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.)).

Commencement Information I623 Sch. 4 para. 5 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I624 Sch. 4 para. 5 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Entry on land for exploratory purposes: England and Wales 6 (1) A person—

(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—

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(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.

Commencement Information I625 Sch. 4 para. 6 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I626 Sch. 4 para. 6 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Entry on land for exploratory purposes: Scotland 7 (1) A person—

(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 paragraph—

(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).

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(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.

Commencement Information I627 Sch. 4 para. 7 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I628 Sch. 4 para. 7 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Entry on land for exploratory purposes: Northern Ireland 8 (1) A person—

(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—

Communications Act 2003 (c. 21) SCHEDULE 4 – Compulsory purchase and entry for exploratory purposes Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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(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.

Commencement Information I629 Sch. 4 para. 8 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I630 Sch. 4 para. 8 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Acquisition of land by agreement 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.

(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.

Commencement Information I631 Sch. 4 para. 9 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I632 Sch. 4 para. 9 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

616 Communications Act 2003 (c. 21) SCHEDULE 5 – Procedure for grants of recognised spectrum access

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content and are referenced with annotations. (See end of Document for details) View outstanding changes

F742SCHEDULE 5 Section 159

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F742 Schs. 5-7 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1 (with

Sch. 8 Pt. 1)

PROSPECTIVE

F742SCHEDULE 6 Section 180

FIXED PENALTIES FOR WIRELESS TELEGRAPHY OFFENCES

Offences to which this Schedule applies F7421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Fixed penalties and fixed penalty notices F7422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Issuing of fixed penalty notice F7423 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Content of fixed penalty notice F7424 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Withdrawal of fixed penalty notice F7425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Notification to person to whom payment is to be made F7426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Effect of fixed penalty notice F7427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Payment of fixed penalty F7428 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Communications Act 2003 (c. 21) SCHEDULE 7 – Seizure and forfeiture of apparatus Document Generated: 2021-03-19

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Effect of payment F7429 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Service of statement and proof of service F74210 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Certificate about payment F74211 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulations F74212 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation F74213 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F742SCHEDULE 7 Section 182

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

SCHEDULE 8 Section 192

DECISIONS NOT SUBJECT TO APPEAL

Prosecutions and civil proceedings 1 A decision to institute, bring or carry on any criminal or civil proceedings.

Commencement Information I633 Sch. 8 para. 1 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I634 Sch. 8 para. 1 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

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

Commencement Information I635 Sch. 8 para. 2 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3))

618 Communications Act 2003 (c. 21) SCHEDULE 8 – Decisions not subject to appeal

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content and are referenced with annotations. (See end of Document for details) View outstanding changes

I636 Sch. 8 para. 2 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

This Act 3 A decision relating to the making or revision of a statement under section 38.

Commencement Information I637 Sch. 8 para. 3 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I638 Sch. 8 para. 3 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

4 A decision required to be published in a notification under section 44(4).

Commencement Information I639 Sch. 8 para. 4 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I640 Sch. 8 para. 4 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

5 A decision given effect to by an order under section 55.

Commencement Information I641 Sch. 8 para. 5 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I642 Sch. 8 para. 5 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

6 A decision given effect to by regulations under section 66.

Commencement Information I643 Sch. 8 para. 6 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I644 Sch. 8 para. 6 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

7 A decision given effect to by regulations under section 71.

Commencement Information I645 Sch. 8 para. 7 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I646 Sch. 8 para. 7 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Communications Act 2003 (c. 21) SCHEDULE 8 – Decisions not subject to appeal Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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8 A decision required to be published in a notification under section 108(4).

Commencement Information I647 Sch. 8 para. 8 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I648 Sch. 8 para. 8 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

9 A decision given effect to by an order under section 122.

Commencement Information I649 Sch. 8 para. 9 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I650 Sch. 8 para. 9 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

[F7439A A decision relating to any of sections 124A to 124N or to anything done under them.]

Textual Amendments F743 Sch. 8 para. 9A inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 16(3), 47(1)

10 A decision relating to the making or revision of a statement under section 131.

Commencement Information I651 Sch. 8 para. 10 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I652 Sch. 8 para. 10 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

11 A decision given effect to by an order under section 134(6).

Commencement Information I653 Sch. 8 para. 11 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I654 Sch. 8 para. 11 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

12 A decision relating to the making or revision of a statement under section 145.

Commencement Information I655 Sch. 8 para. 12 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

620 Communications Act 2003 (c. 21) SCHEDULE 8 – Decisions not subject to appeal

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content and are referenced with annotations. (See end of Document for details) View outstanding changes

I656 Sch. 8 para. 12 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F74413 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74414 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74415 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74416 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74417 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74418 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74419 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Communications Act 2003 (c. 21) SCHEDULE 8 – Decisions not subject to appeal Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74420 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74421 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74422 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74423 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74424 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74425 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74426 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

622 Communications Act 2003 (c. 21) SCHEDULE 8 – Decisions not subject to appeal

Document Generated: 2021-03-19 Status: This version of this Act contains provisions that are prospective.

Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Communications Act 2003. Any changes that have already been made by the team appear in the

content and are referenced with annotations. (See end of Document for details) View outstanding changes

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

Wireless Telegraphy Act 1949 F74427 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74428 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74429 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74430 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74431 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74432 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

Communications Act 2003 (c. 21) SCHEDULE 8 – Decisions not subject to appeal Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Wireless Telegraphy Act 1998 F74433 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74434 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74435 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

F74436 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F744 Sch. 8 paras. 13-36 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 7 para.

36, Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

[F745Wireless Telegraphy Act 2006

Textual Amendments F745 Sch. 8 paras. 37-46 and cross-heading inserted (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s.

126(2), Sch. 7 para. 36

37 A decision relating to the publication of the United Kingdom Plan for Frequency Authorisation.

38 A decision in exercise of the functions conferred on OFCOM by section 1 as to— (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.

39 A decision under section 4 or 7. 40 A decision given effect to—

624 Communications Act 2003 (c. 21) SCHEDULE 8 – Decisions not subject to appeal

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content and are referenced with annotations. (See end of Document for details) View outstanding changes

(a) by regulations under section 8(3), 12, 14, 18, 21, 23, 27, 30, 45 [F746 , 53A(7), 53D ] or 54 or paragraph 1 of Schedule 1 or paragraph 1 of Schedule 2;

(b) by an order under section 29 or 62.

Textual Amendments F746 Words in Sch. 8 para. 40(a) inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 8(5)(a), 118(6);

S.I. 2017/765, reg. 2(c)

41 A decision relating to the recovery of a sum payable to OFCOM under section 15[F747 , 24 or 53D(6) ].

Textual Amendments F747 Words in Sch. 8 para. 41 substituted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 8(5)(b), 118(6);

S.I. 2017/765, reg. 2(c)

42 A decision given effect to by regulations under section 31 and any decision under any such regulations.

43 A decision relating to the making or revision of a statement under— (a) section 34, F748... (b) section 44[F749, or (c) section 53H.]

Textual Amendments F748 Word in Sch. 8 para. 43 omitted (31.7.2017) by virtue of Digital Economy Act 2017 (c. 30), ss. 8(5)(c),

118(6); S.I. 2017/765, reg. 2(c) F749 Sch. 8 para. 43(c) and word inserted (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 8(5)(c), 118(6);

S.I. 2017/765, reg. 2(c)

44 A decision to impose a penalty under section 42(1) [F750for a relevant multiplex contravention].

Textual Amendments F750 Words in Sch. 8 para. 44 inserted (27.6.2017) by Digital Economy Act 2017 (c. 30), ss. 9(11), 118(2)

(with s. 9(13))

45 A decision for the purposes of section 59. 46 A decision relating to an authority under section 62(5).]

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SCHEDULE 9 Section 199

ARRANGEMENTS ABOUT CARRYING ON OF C4C’S ACTIVITIES

Notification of requirement to submit proposals 1 (1) It shall be the duty of OFCOM to give a notification under this paragraph to C4C—

(a) as soon as practicable after the commencement of this Schedule, [F751(aa) as soon as practicable after the day on which section 198A comes into force,]

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.

Textual Amendments F751 Sch. 9 para. 1(1)(aa) inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 22(3)(a), 47(1)

Commencement Information I657 Sch. 9 para. 1 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Submission of proposed arrangements 2 (1) This paragraph applies where C4C have received a notification under paragraph 1.

(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

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some other financial or practical connection between otherwise separated activities.

(5) The matters to which the proposals submitted under this paragraph 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).

Commencement Information I658 Sch. 9 para. 2 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Consideration and approval of proposals 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— (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.

Commencement Information I659 Sch. 9 para. 3 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Duration of approval and modification of arrangements 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.

(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.

Commencement Information I660 Sch. 9 para. 4 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Publication of approved arrangements 5 (1) OFCOM must publish all arrangements approved by them under this Schedule.

(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.

Commencement Information I661 Sch. 9 para. 5 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Duty of C4C to act in accordance with the approved arrangements 6 It shall be the duty of C4C to act in accordance with the arrangements for the time

being in force under this Schedule.

Commencement Information I662 Sch. 9 para. 6 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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nforcement of duties 7 (1) This paragraph applies to—

(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.

Commencement Information I663 Sch. 9 para. 7 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Penalty for contravention of the arrangements 8 (1) OFCOM may impose a penalty on C4C if C4C have contravened—

(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.

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Commencement Information I664 Sch. 9 para. 8 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

OFCOM’s duty to take account of need to support C4C’s primary functions 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—

(a) identified; (b) evaluated; and (c) properly managed.

Commencement Information I665 Sch. 9 para. 9 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Interpretation of Schedule 10 In this Schedule—

“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;

(aa) [F752in relation to the notification under paragraph 1(1)(aa), the period beginning on the day on which section 198A comes into force and ending on the last day of the first licence period to expire after that day;] and

(b) in relation to [F753any other notification under paragraph 1] , the first licence period to begin after the giving of the notification;

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

Textual Amendments F752 Words in Sch. 9 para. 10 inserted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 22(3)(b), 47(1) F753 Words in Sch. 9 para. 10 substituted (8.6.2010) by Digital Economy Act 2010 (c. 24), ss. 22(3)(c), 47(1)

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Commencement Information I666 Sch. 9 para. 10 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

SCHEDULE 10 Section 219

LICENSING THE PUBLIC TELETEXT SERVICE

Modifications etc. (not altering text) C86 Sch. 10 excluded (8.12.2003) by The Office of Communications Act 2002 (Commencement No. 3) and

Communications Act 2003 (Commencement No. 2) Order 2003 (S.I. 2003/3142), art. 8(1) (with art. 11)

PART 1

APPLICATIONS FOR AND AWARD OF LICENCE

Notice of proposal to grant licence 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.

(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.

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Commencement Information I667 Sch. 10 para. 1 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Guidance as to applications 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.

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

Commencement Information I668 Sch. 10 para. 2 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Applications for the licence 3 (1) An application made in response to a notice under paragraph 1 must be accompanied

by— (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;

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(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.

Commencement Information I669 Sch. 10 para. 3 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Notice inviting public representations 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— (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.

Commencement Information I670 Sch. 10 para. 4 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Determination of applications 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.

(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

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(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.

Commencement Information I671 Sch. 10 para. 5 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Revocation of award 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— (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.

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(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.

Commencement Information I672 Sch. 10 para. 6 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

PART 2

CONDITIONS AND ENFORCEMENT OF LICENCE

Payments to be made in respect of the public teletext service 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)—

(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

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(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.

Commencement Information I673 Sch. 10 para. 7 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Corrections and statements of findings by the public teletext provider 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.

(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.

Commencement Information I674 Sch. 10 para. 8 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of the licence for the public teletext service 9 (1) If OFCOM are satisfied that the holder of the licence to provide the public teletext

service has—

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(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.

Commencement Information I675 Sch. 10 para. 9 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Power to shorten licence period 10 (1) If OFCOM are satisfied that the holder of the licence to provide the public teletext

service has— (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.

Commencement Information I676 Sch. 10 para. 10 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Revocation for contravention of condition or direction 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.

Commencement Information I677 Sch. 10 para. 11 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Penalty on revocation 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.

(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.

Commencement Information I678 Sch. 10 para. 12 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

638 Communications Act 2003 (c. 21) SCHEDULE 10 – Licensing the public teletext service

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Power to modify penalties in paragraph 12 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).

(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.

Commencement Information I679 Sch. 10 para. 13 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

PART 3

INTERPRETATION OF SCHEDULE 14 In this Schedule “licence period”, in relation to a licence, means the period for

which the licence is in force.

Commencement Information I680 Sch. 10 para. 14 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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—

(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,

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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.

Commencement Information I681 Sch. 10 para. 15 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

SCHEDULE 11 Sections 291 and 294

APPROVAL, IMPOSITION AND MODIFICATION OF NETWORKING ARRANGEMENTS

Application of Schedule 1 (1) This Schedule applies where OFCOM’s approval of networking arrangements

entered into by the holders of regional Channel 3 licences is required— (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.

Commencement Information I682 Sch. 11 para. 1 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Approval required for modifications 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.

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

Commencement Information I683 Sch. 11 para. 2 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Procedure for giving approval 3 (1) This paragraph applies where arrangements or modifications are submitted to

OFCOM for their approval.

(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.

Commencement Information I684 Sch. 11 para. 3 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Decision of OFCOM whether or not to approve arrangements or modifications 4 (1) The decision made by OFCOM under paragraph 3(4) has to be one of the following—

(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 [F754Competition and Markets Authority] ; 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.

Textual Amendments F754 Words in Sch. 11 substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013

(Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 165 (with art. 3)

Communications Act 2003 (c. 21) SCHEDULE 11 – Approval, imposition and modification of networking arrangements Document Generated: 2021-03-19

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Commencement Information I685 Sch. 11 para. 4 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Notification of decisions on imposition of arrangements 5 (1) Where OFCOM impose arrangements they must prepare and publish a report setting

out details of the imposed arrangements.

(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 [F754Competition and Markets Authority] ; 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.

Textual Amendments F754 Words in Sch. 11 substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013

(Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 165 (with art. 3)

Commencement Information I686 Sch. 11 para. 5 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Competition tests applying to OFCOM’s decisions 6 (1) OFCOM must not—

(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 [F754Competition and Markets Authority] .

(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—

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(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 [F755the Treaty on the Functioning of the

European Union and the European Court, and any decisions of that court, that are relevant to the construction of Article 101 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.

Textual Amendments F754 Words in Sch. 11 substituted (1.4.2014) by The Enterprise and Regulatory Reform Act 2013

(Competition) (Consequential, Transitional and Saving Provisions) Order 2014 (S.I. 2014/892), art. 1(1), Sch. 1 para. 165 (with art. 3)

F755 Words in Sch. 11 para. 6(7)(a) substituted (1.8.2012) by The Treaty of Lisbon (Changes in Terminology or Numbering) Order 2012 (S.I. 2012/1809), art. 2(1), Sch. Pt. 1 (with art. 2(2))

Commencement Information I687 Sch. 11 para. 6 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Other matters to be taken into account 7 (1) OFCOM must not—

(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.

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(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.

Commencement Information I688 Sch. 11 para. 7 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Duty to refuse approval in certain cases 8 (1) This paragraph applies to a decision by OFCOM—

(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.

Commencement Information I689 Sch. 11 para. 8 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Appeals against decisions relating to competition test 9 (1) A person holding a regional Channel 3 licence may appeal to the Tribunal against

the following decisions by OFCOM— (a) a decision on how to dispose of an application for the approval of

arrangements or modifications;

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(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 have 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.

Commencement Information I690 Sch. 11 para. 9 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Decisions on an appeal 10 (1) Appeals to the Tribunal under paragraph 9 are to be disposed of in accordance with

this paragraph.

(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.

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(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 paragraph, 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.

Commencement Information I691 Sch. 11 para. 10 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Appeals against decisions of the Tribunal 11 (1) A decision of the Tribunal on an appeal under paragraph 9 may itself be appealed.

(2) An appeal under this paragraph— (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 paragraph may be brought by a party to the proceedings before the Tribunal.

(4) An appeal under this paragraph requires the permission of the Tribunal or of the court to which it is to be made.

(5) In this paragraph references to a decision of the Tribunal include references to a direction given by it under paragraph 10(4).

Commencement Information I692 Sch. 11 para. 11 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Information for OFCOM 12 (1) OFCOM may by notice require a person—

(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.

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(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.

Commencement Information I693 Sch. 11 para. 12 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of information provisions 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.

(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

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(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.

Commencement Information I694 Sch. 11 para. 13 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Confidentiality and defamation 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).

(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.

Commencement Information I695 Sch. 11 para. 14 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Interpretation of Schedule 15 In this Schedule—

“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).

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Commencement Information I696 Sch. 11 para. 15 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F756SCHEDULE 11A

RESTRICTIONS ON PRODUCT PLACEMENT

Textual Amendments F756 Sch. 11A inserted (16.4.2010) by The Audiovisual Media Services (Product Placement) Regulations

2010 (S.I. 2010/831), regs. 1(1), 9

Introductory 1. (1) In this Part “product placement”, in relation to a programme included in a television

programme service, means the inclusion in the programme of, or of a reference to, a product, service or trade mark, where the inclusion—

(a) is for a commercial purpose; (b) is in return for the making of any payment, or the giving of other valuable

consideration, to any relevant provider or any person connected with a relevant provider; and

(c) is not prop placement.

(2) “Prop placement”, in relation to such a programme, means the inclusion in the programme of, or of a reference to, a product, service or trade mark where—

(a) the provision of the product, service or trade mark has no significant value; and

(b) no relevant provider, or person connected with a relevant provider, has received any payment or other valuable consideration in relation to its inclusion in, or the reference to it in, the programme, disregarding the costs saved by including the product, service or trademark, or a reference to it, in the programme.

2. The product placement requirements are— (a) that the product placement does not fall within any of paragraphs 3 to 6; (b) that all of the conditions in paragraph 7 are met; and (c) that, where paragraph 8 applies, the condition in that paragraph is also met.

Prohibitions of product placement 3. [F757(1) Product placement falls within this paragraph if it is in a—

(a) children’s programme; (b) news or current affairs programme; (c) consumer affairs programme; or (d) religious programme.]

(2) In sub-paragraph (1) “children’s programme” means a programme made—

Communications Act 2003 (c. 21) SCHEDULE 11A – Restrictions on product placement Document Generated: 2021-03-19

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(a) for a television programme service or for an on-demand programme service, and

(b) for viewing primarily by persons under the age of sixteen.

Textual Amendments F757 Sch. 11A para. 3(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 18(a) (with Pt. 7)

4. Product placement falls within this paragraph if it is— (a) of cigarettes or other tobacco products; (b) by or on behalf of an undertaking whose principal activity is the

manufacture or sale of cigarettes or other tobacco products; F758... [

F759(ba) of electronic cigarettes or electronic cigarette refill containers; F760...]

[ F761(bb)

by or on behalf of an undertaking whose principal activity is the manufacture or sale of electronic cigarettes or electronic cigarette refill containers; or]

(c) of prescription-only medicines.

Textual Amendments F758 Word in Sch. 11A para. 4(b) omitted (20.5.2016) by virtue of The Tobacco and Related Products

Regulations 2016 (S.I. 2016/507), regs. 1(2), 45(2)(a) (with reg. 57) F759 Sch. 11A para. 4(ba) inserted (20.5.2016) by virtue of The Tobacco and Related Products Regulations

2016 (S.I. 2016/507), regs. 1(2), 45(2)(a) (with reg. 57) F760 Word in Sch. 11A para. 4(ba) omitted (1.11.2020) by virtue of The Audiovisual Media Services

Regulations 2020 (S.I. 2020/1062), regs. 1(2), 18(b) (with Pt. 7) F761 Sch. 11A para. 4(bb) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 18(c) (with Pt. 7)

5. Product placement of alcoholic drinks falls within this paragraph if— (a) it is aimed specifically at persons under the age of eighteen; or (b) it encourages immoderate consumption of such drinks.

6. (1) Product placement falls within this paragraph if it is in a programme to which this paragraph applies and—

F762(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (b) the product placement is of anything within sub-paragraph (2); or (c) the product placement is otherwise unsuitable.

(2) The following are within this sub-paragraph— (a) F763... cigarette lighters, cigarette papers or pipes intended for smoking; (b) medicinal products; (c) alcoholic drinks; (d) infant formulae or follow-on formulae; (e) a food or drink high in fat, salt or sugar; (f) gambling services.

(3) This paragraph applies to—

650 Communications Act 2003 (c. 21) SCHEDULE 11A – Restrictions on product placement

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(a) a programme that has been produced or commissioned by the provider of the television programme service in which it is included, or by a person connected with that provider, and that is not a film made for cinema; and

(b) a programme that has been produced or commissioned by any other person with a view to its first showing taking place in a television programme service which is provided by a person under the jurisdiction of the United Kingdom for the purposes of the Audiovisual Media Services Directive.

Textual Amendments F762 Sch. 11A para. 6(1)(a) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 18(d) (with Pt. 7) F763 Words in Sch. 11A para. 6(2)(a) omitted (20.5.2016) by virtue of The Tobacco and Related Products

Regulations 2016 (S.I. 2016/507), regs. 1(2), 45(2)(c) (with reg. 57)

Conditions applying to product placement 7. (1) These are the conditions referred to in paragraph 2(b).

F764(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) Condition B is that the product placement has not influenced the content or scheduling of the programme in a way that affects the editorial independence of the provider of the television programme service in which the programme is included.

(4) Condition C is that the product placement does not directly encourage the purchase or rental of goods or services, whether by making promotional reference to those goods or services or otherwise.

(5) Condition D is that the programme does not give undue prominence to the products, services or trade marks concerned.

(6) Condition E is that the product placement does not use techniques which exploit the possibility of conveying a message subliminally or surreptitiously.

(7) Condition F is that the way in which the product, service or trade mark, or the reference to it, is included in the programme by way of product placement does not—

(a) prejudice respect for human dignity; (b) promote discrimination based on sex, racial or ethnic origin, nationality,

religion or belief, disability, age or sexual orientation; (c) encourage behaviour prejudicial to health or safety; (d) encourage behaviour grossly prejudicial to the protection of the

environment; (e) cause physical [F765, mental] or moral detriment to persons under the age of

eighteen; [

F766(ea) directly exhort such persons to purchase or rent goods or services in a manner which exploits their inexperience or credulity;]

(f) directly encourage such persons to persuade their parents or others to purchase or rent goods or services;

(g) exploit the trust of such persons in parents, teachers or others; or (h) unreasonably show such persons in dangerous situations.

Communications Act 2003 (c. 21) SCHEDULE 11A – Restrictions on product placement Document Generated: 2021-03-19

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Textual Amendments F764 Sch. 11A para. 7(2) omitted (1.11.2020) by virtue of The Audiovisual Media Services Regulations 2020

(S.I. 2020/1062), regs. 1(2), 18(e) (with Pt. 7) F765 Word in Sch. 11A para. 7(7)(e) inserted (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 18(f)(i) (with Pt. 7) F766 Sch. 11A para. 7(7)(ea) inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 18(f)(ii) (with Pt. 7)

8. (1) This paragraph applies where the programme featuring the product placement has been produced or commissioned by the provider of the television programme service in which it is included or by a person connected with that provider.

(2) The condition referred to in paragraph 2(c) is that the television programme service in which the programme is included signals appropriately the fact that product placement is contained in a programme no less frequently than—

(a) at the start and end of such a programme; and (b) in the case of a television programme service which includes advertising

breaks within it, at the recommencement of the programme after each such advertising break.

Minor definitions 9. In this Schedule—

“connected” has the same meaning as it has in the Broadcasting Act 1990 by virtue of section 202 of that Act;

[F767“electronic cigarette” has the meaning given in section 368R; “electronic cigarette refill container” has the meaning given in

section 368R;] “film made for cinema” means a film made with a view to its being shown

to the general public first in a cinema; “follow-on formulae” has the meaning given in Article 2 of Commission

Directive 2006/141/EC on infant formulae and follow-on formulae and amending Directive 1999/21/EC;

“infant formulae” has the meaning given in Article 2 of Commission Directive 2006/141/EC on infant formulae and follow-on formulae and amending Directive 1999/21/EC;

“medicinal product” has the meaning given in section 130 of the Medicines Act 1968;

“prescription-only medicine” means a medicinal product of a description or falling within a class specified in an order made under section 58 of the Medicines Act 1968;

“producer”, in relation to a programme, means the person by whom the arrangements necessary for the making of the programme are undertaken;

“programme” does not include an advertisement; “relevant provider”, in relation to a programme, means—

(a) the provider of the television programme service in which the programme is included; and

(b) the producer of the programme;

652 Communications Act 2003 (c. 21) SCHEDULE 12 – Corresponding obligations of the BBC and Welsh Authority

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“residual value” means any monetary or other economic value in the hands of the relevant provider other than the cost saving of including the product, service or trademark, or a reference to it, in a programme;

“significant value” means a residual value that is more than trivial; “tobacco product” has the meaning given in section 1 of the Tobacco

Advertising and Promotion Act 2002; “trade mark”, in relation to a business, includes any image (such as a logo)

or sound commonly associated with that business or its products or services.]

Textual Amendments F767 Words in Sch. 11A para. 9 inserted (20.5.2016) by The Tobacco and Related Products Regulations 2016

(S.I. 2016/507), regs. 1(2), 45(2)(d) (with reg. 57)

SCHEDULE 12 Section 338

CORRESPONDING OBLIGATIONS OF THE BBC AND WELSH AUTHORITY

PART 1

THE BBC

Quotas for independent productions 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.

(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).

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(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.

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(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.

Commencement Information I697 Sch. 12 para. 1 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Duty to publicise complaints procedures etc. 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).

(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 [F768or about compliance by the BBC with the requirements imposed by section 368D][F769and section 368E(4)].

Textual Amendments F768 Words in Sch. 12 para. 2(2)(b) inserted (19.12.2009) by Audiovisual Media Services Regulations 2009

(S.I. 2009/2979), regs. 1(1), 3(2) F769 Words in Sch. 12 para. 2(2)(b) inserted (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 45(a) (with Pt. 7)

Commencement Information I698 Sch. 12 para. 2 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

PART 2

THE WELSH AUTHORITY

Public service remits of the Welsh Authority services 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.

(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

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(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.

Commencement Information I699 Sch. 12 para. 3 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Statements of programme policy 4 (1) It shall be the duty of the Welsh Authority—

(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.

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(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.

Commencement Information I700 Sch. 12 para. 4 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

PROSPECTIVE

Must-offer obligations in relation to networks and satellite services 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)— (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

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(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

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(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 paragraph 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.

PROSPECTIVE

Supply of services by satellite in certain areas 6 It shall be the duty of the Welsh Authority—

(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 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.

(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.

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(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—

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“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.

Commencement Information I701 Sch. 12 para. 7 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Programme quotas for original productions 8 (1) It shall be the duty of the Welsh Authority, in relation to their designated public

services (taken together) to secure— (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.

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(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 paragraph— “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.

Commencement Information I702 Sch. 12 para. 8 in force at 1.7.2004 by S.I. 2003/3142, art. 4(4)(c) (with art. 11) (as amended (4.3.2004)

by S.I. 2004/545, art. 2(2)(3)(c))

News and current affairs programmes 9 (1) It shall be the duty of the Welsh Authority, in relation to their designated public

services, to secure— (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,

662 Communications Act 2003 (c. 21) SCHEDULE 12 – Corresponding obligations of the BBC and Welsh Authority

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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.

Commencement Information I703 Sch. 12 para. 9 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Code relating to programme commissioning 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.

Communications Act 2003 (c. 21) SCHEDULE 12 – Corresponding obligations of the BBC and Welsh Authority Document Generated: 2021-03-19

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(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.

664 Communications Act 2003 (c. 21) SCHEDULE 12 – Corresponding obligations of the BBC and Welsh Authority

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(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.

Commencement Information I704 Sch. 12 para. 10 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Co-operation with the public teletext provider 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.

(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.

Commencement Information I705 Sch. 12 para. 11 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Programme standards 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.

Commencement Information I706 Sch. 12 para. 12 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Communications Act 2003 (c. 21) SCHEDULE 12 – Corresponding obligations of the BBC and Welsh Authority Document Generated: 2021-03-19

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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.

Commencement Information I707 Sch. 12 para. 13 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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).

(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); F770...

(c) the methods of sponsorship to be excluded from those services (whether generally or in particular circumstances) [F771; and

(d) the forms and methods of product placement to be excluded from those services (including descriptions of products, services or trade marks product placement of which is to be excluded) (whether generally or in particular circumstances).]

Textual Amendments F770 Word in Sch. 12 para. 14(2)(b) omitted (16.4.2010) by virtue of The Audiovisual Media Services (Product

Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 10(3)(a) F771 Sch. 12 para. 14(2)(d) and word inserted (16.4.2010) by The Audiovisual Media Services (Product

Placement) Regulations 2010 (S.I. 2010/831), regs. 1(1), 10(3)(b)

Modifications etc. (not altering text) C87 Sch. 12 para. 14(1) modified (20.7.2004) by Contracting Out (Functions relating to Broadcast

Advertising) and Specification of Relevant Functions Order 2004 (S.I. 2004/1975), art. 1, Sch. para. 1(d) (with art. 5)

Commencement Information I708 Sch. 12 para. 14 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

15 (1) This paragraph applies if OFCOM are satisfied— [F772(a) that the Welsh Authority have failed in any respect to perform any of their

duties under— (i) paragraphs 12 to 14,

(ii) paragraph 23A, (iii) section 368D(1) except so far as it relates to advertising, (iv) section 368D(2), (v) section 368D(3)(zza), (zb), (a) or (b), or

(vi) section 368E(4) except so far as it relates to advertising; and]

666 Communications Act 2003 (c. 21) SCHEDULE 12 – Corresponding obligations of the BBC and Welsh Authority

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(b) that the failure can be appropriately remedied by the inclusion in any or all of the Authority’s public television services [F773or on-demand programme 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 [F774or on- demand programme 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 [F775or on-demand programme 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 paragraph a statement of findings, in relation to a case in which OFCOM are satisfied that the Welsh Authority have failed to perform a duty [F776mentioned in sub-paragraph (1)(a)] , is a statement of OFCOM’s findings in relation to that failure.

Textual Amendments F772 Sch. 12 para. 15(1)(a) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 45(b) (with Pt. 7) F773 Words in Sch. 12 para. 15(1)(b) inserted (19.12.2009) by Audiovisual Media Services Regulations 2009

(S.I. 2009/2979), regs. 1(1), 4(2)(b) F774 Words in Sch. 12 para. 15(2) inserted (19.12.2009) by Audiovisual Media Services Regulations 2009

(S.I. 2009/2979), regs. 1(1), 4(2)(b) F775 Words in Sch. 12 para. 15(5) inserted (19.12.2009) by Audiovisual Media Services Regulations 2009

(S.I. 2009/2979), regs. 1(1), 4(2)(b) F776 Words in Sch. 12 para. 15(6) substituted (18.3.2010) by The Audiovisual Media Services Regulations

2010 (S.I. 2010/419), regs. 1(1), 14(3)

Modifications etc. (not altering text) C88 Sch. 12 para. 15(2) modified (20.7.2004) by Contracting Out (Functions relating to Broadcast

Advertising) and Specification of Relevant Functions Order 2004 (S.I. 2004/1975), art. 1, Sch. para. 2(d) (with art. 5)

Commencement Information I709 Sch. 12 para. 15 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Directions with respect to advertising 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).

(2) Those matters are—

Communications Act 2003 (c. 21) SCHEDULE 12 – Corresponding obligations of the BBC and Welsh Authority Document Generated: 2021-03-19

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(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.

Commencement Information I710 Sch. 12 para. 16 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Fairness standards 17 It shall be the duty of the Welsh Authority to secure the observance—

(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).

Commencement Information I711 Sch. 12 para. 17 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Party political broadcasts 18 (1) It shall be the duty of the Welsh Authority to include—

(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;

668 Communications Act 2003 (c. 21) SCHEDULE 12 – Corresponding obligations of the BBC and Welsh Authority

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(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.

Modifications etc. (not altering text) C89 Sch. 12 para. 18 excluded (13.2.2013) by The Scotland Act 1998 (Modification of Schedule 5) Order

2013 (S.I. 2013/242), arts. 2, 4(3)(c)

Commencement Information I712 Sch. 12 para. 18 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Duty to publicise complaints procedures etc. 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).

(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

Communications Act 2003 (c. 21) SCHEDULE 12 – Corresponding obligations of the BBC and Welsh Authority Document Generated: 2021-03-19

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(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 [F777or about compliance by the Authority with the requirements imposed by section 368D [F778and section 368E(4)], except the [F779requirements mentioned in sub-paragraph (3)]].

[F780(3) The requirements mentioned in this sub-paragraph are— (a) the requirements imposed by sections 368D(1) and 368E(4) so far as they

relate to advertising, and (b) the requirement imposed by section 368D(3)(za).]

Textual Amendments F777 Words in Sch. 12 para. 19(2)(b) inserted (19.12.2009) by Audiovisual Media Services Regulations 2009

(S.I. 2009/2979), regs. 1(1), 4(3) F778 Words in Sch. 12 para. 19(2)(b) substituted (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 45(c)(i) (with Pt. 7) F779 Words in Sch. 12 para. 19(2)(b) substituted (18.3.2010) by virtue of The Audiovisual Media Services

Regulations 2010 (S.I. 2010/419), regs. 1(1), 14(4) F780 Sch. 12 para. 19(3) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 45(c)(ii) (with Pt. 7)

Commencement Information I713 Sch. 12 para. 19 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Monitoring of programmes 20 (1) It shall be the duty of the Welsh Authority—

(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.

Commencement Information I714 Sch. 12 para. 20 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Compliance with international obligations 21 (1) OFCOM may give the Welsh Authority such directions as OFCOM consider

appropriate for securing that all relevant international obligations are complied with.

(2) It shall be the duty of the Authority to comply with a direction under this paragraph.

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(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.

Commencement Information I715 Sch. 12 para. 21 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Services for [F781people with disabilities]

Textual Amendments F781 Words in Sch. 12 para. 22 heading substituted (1.11.2020) by The Audiovisual Media Services

Regulations 2020 (S.I. 2020/1062), regs. 1(2), 19 (with Pt. 7)

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—

(a) S4C Digital; and (b) so much of any of the Welsh Authority’s other public television services

as is provided in digital form.

Commencement Information I716 Sch. 12 para. 22 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Equality of opportunity 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—

(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);

Communications Act 2003 (c. 21) SCHEDULE 12 – Corresponding obligations of the BBC and Welsh Authority Document Generated: 2021-03-19

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(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 [F782the Equality Act 2010 or, in

Northern Ireland,] the Disability Discrimination Act 1995 (c. 50); “racial group” has the same meaning as in the [F783the Equality Act 2010]

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.

Textual Amendments F782 Words in Sch. 12 para. 23(6) inserted by virtue of 2010 c. 15, Sch. 26 Pt. 1 para. 56(a) (as inserted

(E.W.S.) (1.10.2010) by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 5) (see S.I. 2010/2317, art. 2)

F783 Words in Sch. 12 para. 23(6) substituted by 2010 c. 15, Sch. 26 Pt. 1 para. 56(b) (as inserted (E.W.S.) (1.10.2010) by The Equality Act 2010 (Consequential Amendments, Saving and Supplementary Provisions) Order 2010 (S.I. 2010/2279), art. 1(2), Sch. 1 para. 5) (see S.I. 2010/2317, art. 2)

Commencement Information I717 Sch. 12 para. 23 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F784On-demand programme services

Textual Amendments F784 Sch. 12 para. 23A and cross-heading inserted (19.12.2009) by Audiovisual Media Services Regulations

2009 (S.I. 2009/2979), regs. 1(1), 4(4)

23A. (1) It is the duty of the Welsh Authority to comply with a direction given to them by OFCOM in relation to the establishment of procedures for the handling and resolution of complaints about compliance by the Authority with the requirements imposed by section 368D or [F785section 368E(4)].

[F786(2) But OFCOM must not give any such direction in relation to the handling and resolution of complaints about compliance with—

(a) the requirements imposed by section 368D(1) or 368E(4) so far as they relate to advertising, or

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(b) the requirement imposed by section 368D(3)(za).]]

Textual Amendments F785 Words in Sch. 12 para. 23A(1) substituted (1.11.2020) by The Audiovisual Media Services Regulations

2020 (S.I. 2020/1062), regs. 1(2), 45(d)(i) (with Pt. 7) F786 Sch. 12 para. 23A(2) substituted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I.

2020/1062), regs. 1(2), 45(d)(ii) (with Pt. 7)

Meaning of Welsh Authority’s public services 24 (1) In this Part of this Schedule, references to the Welsh Authority’s public services are

references to the following— (a) S4C; (b) S4C Digital; and (c) the services the provision of which by the Authority is authorised by or under

section 205.

(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.

Commencement Information I718 Sch. 12 para. 24 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

SCHEDULE 13 Section 345

FINANCIAL PENALTIES UNDER THE BROADCASTING ACTS

PART 1

BROADCASTING ACT 1990

Preliminary 1 The 1990 Act shall be amended as follows.

Commencement Information I719 Sch. 13 para. 1 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Revocation of television services licence 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 ”.

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(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.

Commencement Information I720 Sch. 13 para. 2 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licences for Channel 3 services and for Channels 4 and 5 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—

“(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.”

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(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.

Commencement Information I721 Sch. 13 para. 3 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Restricted services licences 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) ”.

(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.

Commencement Information I722 Sch. 13 para. 4 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Additional television services licences 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—

“(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

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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.

Commencement Information I723 Sch. 13 para. 5 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Revocation of national sound broadcasting licence 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 ”.

(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.

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Commencement Information I724 Sch. 13 para. 6 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licences for analogue sound services 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—

“(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.

Commencement Information I725 Sch. 13 para. 7 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Additional radio services licences 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—

“(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,

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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.

Commencement Information I726 Sch. 13 para. 8 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Power to amend penalties under the 1990 Act 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.

(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.

Commencement Information I727 Sch. 13 para. 9 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

PART 2

BROADCASTING ACT 1996

Preliminary 10 The 1996 Act shall be amended as follows.

Commencement Information I728 Sch. 13 para. 10 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Revocation of television multiplex licences 11 (1) In subsection (5) of section 11 (penalty on revocation of television multiplex licence),

the words from “not exceeding” onwards shall be omitted.

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(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.

Commencement Information I729 Sch. 13 para. 11 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Attribution of television multiplex revenue 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) ”.

(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.

Commencement Information I730 Sch. 13 para. 12 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Multiplex licences 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). ”

(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.

Commencement Information I731 Sch. 13 para. 13 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Digital television programme licences 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). ”

(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 ”.

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(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.

Commencement Information I732 Sch. 13 para. 14 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Digital additional television services licences 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). ”

(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.

Commencement Information I733 Sch. 13 para. 15 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Power to amend digital television penalties 16 For section 36(2) and (3) (provisions that may be amended and negative resolution

procedure) there shall be substituted—

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“(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.”

Commencement Information I734 Sch. 13 para. 16 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Revocation of radio multiplex licences 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 ”.

(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.

Commencement Information I735 Sch. 13 para. 17 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Attribution of radio multiplex revenue 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) ”.

(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.

Commencement Information I736 Sch. 13 para. 18 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Contraventions of conditions of radio multiplex licences 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). ”

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(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.

Commencement Information I737 Sch. 13 para. 19 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Digital sound programme licences 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). ”

(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—

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“(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.

Commencement Information I738 Sch. 13 para. 20 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licences for digital additional sound services 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). ”

(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).”

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(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.

Commencement Information I739 Sch. 13 para. 21 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Power to amend digital television penalties 22 For section 69(2) and (3) (provisions that may be amended and negative resolution

procedure) there shall be substituted—

“(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.”

Commencement Information I740 Sch. 13 para. 22 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

SCHEDULE 14 Section 350

MEDIA OWNERSHIP RULES

PART 1

CHANNEL 3 SERVICES

Ban on newspaper proprietors holding Channel 3 licences 1 (1) A person is not to hold a licence to provide a Channel 3 service if—

(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.

F787(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(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.

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Textual Amendments F787 Sch. 14 para. 1(2) omitted (15.6.2011) by virtue of The Media Ownership (Radio and Cross-media) Order

2011 (S.I. 2011/1503), arts. 1, 3

Commencement Information I741 Sch. 14 para. 1 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Restrictions on participation 2 (1) A person who is—

(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.

Commencement Information I742 Sch. 14 para. 2 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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National and local newspapers and their respective national and local market shares 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.

(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.

F788(5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6) In [F789sub-paragraph (4)] “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 [F790sub-paragraph (4)] , the number of copies of a newspaper sold in the United KingdomF791... 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.

Textual Amendments F788 Sch. 14 para. 3(5) omitted (15.6.2011) by virtue of Media Ownership (Radio and Cross-media) Order

2011 (S.I. 2011/1503), arts. 1, 6(2) F789 Words in Sch. 14 para. 3(6) substituted (15.6.2011) by Media Ownership (Radio and Cross-media) Order

2011 (S.I. 2011/1503), arts. 1, 6(3) F790 Words in Sch. 14 para. 3(7) substituted (15.6.2011) by Media Ownership (Radio and Cross-media) Order

2011 (S.I. 2011/1503), arts. 1, 6(4) F791 Words in Sch. 14 para. 3(7) omitted (15.6.2011) by virtue of Media Ownership (Radio and Cross-media)

Order 2011 (S.I. 2011/1503), arts. 1, 6(4)

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Modifications etc. (not altering text) C90 Sch. 14 para. 3 applied (29.12.2003) by Media Ownership (Local Radio and Appointed News Provider)

Order 2003 (S.I. 2003/3299), arts. 1(2), 4(4)

Commencement Information I743 Sch. 14 para. 3 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Construction of references to running a newspaper 4 For the purposes of this Part of this Schedule a person runs a F792... newspaper if—

(a) he is the proprietor of the newspaper; or (b) he controls a body which is the proprietor of the newspaper.

Textual Amendments F792 Words in Sch. 14 para. 4 omitted (15.6.2011) by virtue of Media Ownership (Radio and Cross-media)

Order 2011 (S.I. 2011/1503), arts. 1, 7

Modifications etc. (not altering text) C91 Sch. 14 para. 4 applied (29.12.2003) by Media Ownership (Local Radio and Appointed News Provider)

Order 2003 (S.I. 2003/3299), arts. 1(2), 4(4)

Commencement Information I744 Sch. 14 para. 4 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Coverage area for a Channel 3 service F7935 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F793 Sch. 14 para. 5 omitted (15.6.2011) by virtue of Media Ownership (Radio and Cross-media) Order 2011

(S.I. 2011/1503), arts. 1, 8

Commencement Information I745 Sch. 14 para. 5 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Power to amend Part 1 of Schedule 6 The Secretary of State may by order repeal or otherwise modify any of the

restrictions imposed by this Part of this Schedule.

Commencement Information I746 Sch. 14 para. 6 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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F794PART 2

F794...

Textual Amendments F794 Sch. 14 Pt. 2 omitted (15.6.2011) by virtue of Media Ownership (Radio and Cross-media) Order 2011

(S.I. 2011/1503), arts. 1, 3

F794... F7947 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commencement Information I747 Sch. 14 para. 7 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F794... F7948 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commencement Information I748 Sch. 14 para. 8 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F794... F7949 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commencement Information I749 Sch. 14 para. 9 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F794... F79410 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commencement Information I750 Sch. 14 para. 10 in force at 12.12.2003 by S.I. 2003/3142, art. 2 (with art. 11)

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PART 3

LOCAL SOUND PROGRAMME SERVICES

Restriction on holding of local sound broadcasting licences 11 (1) The Secretary of State may by order impose—

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

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

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

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

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

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

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

(i) the number of those other persons; (ii) the coverage areas of their services;

(iii) the sizes of the potential audiences for their services; and (iv) the times when their services are or will be made available;

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

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

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

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

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Commencement Information I751 Sch. 14 para. 11 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Restriction applying to local digital sound programme services 12 (1) The Secretary of State may by order impose requirements, on persons holding local

digital sound programme licences, prohibiting the provision by the same person, in the circumstances described in the order, of more than the number of local digital sound programme services that is determined in the manner set out in the order.

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

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

(b) the capacity used by those services on the relevant multiplexes; (c) the sizes of the potential audiences for those services and the times when

those services would be made available; (d) whether and to what extent members of the potential audiences for those

services would also be members of the potential audiences for local digital sound programme services provided by other persons;

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

(i) the number of those other persons; (ii) the coverage areas of their services;

(iii) the capacity used by their services on the relevant multiplexes; (iv) the sizes of the potential audiences for their services; and (v) the times when their services are or will be made available.

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

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

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

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

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

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Commencement Information I752 Sch. 14 para. 12 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Powers supplemental to powers under paragraphs 11 and 12 13 (1) An order under paragraph 11 or 12 may make provision for treating—

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

who is connected with a person who holds a licence, and (c) persons who (whether alone or together with such persons as may be

described in the order) participate in a body which holds a licence or is treated as doing so by virtue of paragraph (a) or (b),

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

(2) An order under paragraph 12 may make provision for treating— (a) persons who are connected with a person who provides a local digital sound

programme service, (b) persons who are associates of a person who provides such a service or of a

person who is connected with a person who provides such a service, and (c) persons who (whether alone or together with such persons as may be

described in the order) participate in a body who provides such a service or is treated as doing so by virtue of paragraph (a) or (b),

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

(3) An order under paragraph 11 or 12 may also make provision for treating— (a) persons who are connected with each other, (b) persons who are associates of each other, and (c) persons who (whether alone or together with such persons as may be

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

(4) An order under paragraph 11 may make provision— (a) as to the circumstances in which a newspaper is to be treated as a national

newspaper or a local newspaper for the purposes of a requirement imposed under that paragraph;

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

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

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

and provision made by virtue of this paragraph may apply, with or without modifications, any of the provisions of paragraph 3 or 4 of this Schedule [F795or section 5(6AA) to (6AD) of the Broadcasting Act 1990] .

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(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.

Textual Amendments F795 Words in Sch. 14 para. 13(4) inserted (15.6.2011) by The Media Ownership (Radio and Cross-media)

Order 2011 (S.I. 2011/1503), arts. 1, 9

Commencement Information I753 Sch. 14 para. 13 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Transitional provision for orders under paragraphs 11 and 12 14 (1) This paragraph applies where—

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

(b) immediately before the coming into force of the order, that person— (i) held one or more relevant licences; but

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

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

(3) In sub-paragraphs (1) and (2) the reference to a relevant licence is— (a) in relation to the coming into force of an order under paragraph 11, a local

sound broadcasting licence; and (b) in relation to the coming into force of an order under paragraph 12, a local

digital sound programme licence.

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

(a) after the coming into force of the order; and (b) before there is a relevant change of circumstances.

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

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(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.

Commencement Information I754 Sch. 14 para. 14 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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PART 4

RELIGIOUS BODIES ETC.

Approval required for religious bodies etc. to hold licences 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—

(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.

Commencement Information I755 Sch. 14 para. 15 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2 (with art. 5)

Power to amend Part 4 of Schedule 16 The Secretary of State may by order repeal or otherwise modify the restriction

imposed by this Part of this Schedule.

Commencement Information I756 Sch. 14 para. 16 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2 (with art. 5)

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PART 5

SUPPLEMENTAL PROVISIONS OF SCHEDULE

Procedure for orders 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.

(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.

Commencement Information I757 Sch. 14 para. 17 in force at 18.9.2003 for specified purposes by S.I. 2003/1900, art. 2(2), Sch. 2 (with

art. 5) I758 Sch. 14 para. 17 in force at 12.12.2003 in so far as not already in force by S.I. 2003/3142, art. 2 (with

art. 11) I759 Sch. 14 para. 17 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch.

1 (with art. 11)

Interpretation of Schedule 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.

(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.

Commencement Information I760 Sch. 14 para. 18 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

SCHEDULE 15 Section 360

AMENDMENTS OF BROADCASTING ACTS

PART 1

AMENDMENTS OF THE 1990 ACT

Licences under Part 1 1 (1) Section 3 of the 1990 Act (licensing under Part 1) shall be amended as follows.

(2) For “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

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(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).”

Commencement Information I761 Sch. 15 para. 1 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

General licence conditions 2 (1) Section 4 of the 1990 Act (general licence conditions) shall be amended as follows.

(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) ”.

Commencement Information I762 Sch. 15 para. 2 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Restrictions on licence holding 3 (1) Section 5 of the 1990 Act (restrictions on licence holding) shall be amended as

follows.

(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—

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“(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 ”.

Commencement Information I763 Sch. 15 para. 3 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Repeal of previous regulatory regime 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.

Commencement Information I764 Sch. 15 para. 4 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Prohibition on providing television services without a licence 5 (1) Section 13 of the 1990 Act (prohibition on providing television services without a

licence) shall be amended as follows.

698 Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts

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(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 ”.

Commencement Information I765 Sch. 15 para. 5 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Television broadcasting on Channel 3 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 ”.

Commencement Information I766 Sch. 15 para. 6 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Applications for Channel 3 licences 7 (1) Section 15 of the 1990 Act (applications for Channel 3 licences) shall be amended

as follows.

(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”;

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(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) ”.

Commencement Information I767 Sch. 15 para. 7 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Procedure on consideration of applications for Channel 3 licences 8 (1) Section 16 of the 1990 Act (consideration of applications for Channel 3 licences)

shall be amended as follows.

(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.

Commencement Information I768 Sch. 15 para. 8 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Television broadcasting on Channel 3 9 (1) Section 17 of the 1990 Act (award of licences to person submitting highest bid) shall

be amended as follows.

(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”.

Commencement Information I769 Sch. 15 para. 9 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Financial conditions of licence and failures to begin a service 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 ”.

Commencement Information I770 Sch. 15 para. 10 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Changes of control in period after award of licence 11 (1) Section 21 of the 1990 Act (changes of control in period immediately after award of

licence) shall be amended as follows.

(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 ”.

Commencement Information I771 Sch. 15 para. 11 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Temporary provision of Channel 3 service for an additional area 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 ”.

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Commencement Information I772 Sch. 15 para. 12 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Appointment of members of C4 Corporation 13 In section 23 of the 1990 Act (appointment of C4C members), for “the

Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I773 Sch. 15 para. 13 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Channel 4 licence 14 In section 24(3) of the 1990 Act (Channel 4 licence), for “the Commission” there

shall be substituted “ OFCOM ”.

Commencement Information I774 Sch. 15 para. 14 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Channel 5 15 In section 28 of the 1990 Act (Channel 5), for “The Commission” and “the

Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I775 Sch. 15 para. 15 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Application to Channel 5 of Channel 3 provisions 16 (1) In section 29 of the 1990 Act (application to Channel 5 of Channel 3 provisions)—

(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 ”.

Commencement Information I776 Sch. 15 para. 16 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Announcement of programme Schedules 17 In section 37(1) of the 1990 Act (conditions requiring announcement of programme

Schedules), for “the Commission” there shall be substituted “ OFCOM ”.

Commencement Information I777 Sch. 15 para. 17 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of conditions of Channel 3, Channel 4 and Channel 5 licences 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 ”.

(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 ”.

Commencement Information I778 Sch. 15 para. 18 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Restricted services 19 In section 42B(1) of the 1990 Act (licensing of restricted services), for “the

Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I779 Sch. 15 para. 19 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Additional television services 20 (1) Section 48 of the 1990 Act (additional services) shall be further amended as follows.

(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—

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“(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.

Commencement Information I780 Sch. 15 para. 20(1)(2)(a) in force at 25.7.2003 by S.I. 2003/1900, art. 2(1), Sch. 1 I781 Sch. 15 para. 20(2)(b) (3)-(8) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licensing of additional television services 21 (1) Section 49 of the 1990 Act (licensing of additional television services) shall be

amended as follows.

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(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. ”

Modifications etc. (not altering text) C92 Sch. 15 para. 21(4) excluded (8.12.2003) by The Office of Communications Act 2002 (Commencement

No. 3) and Communications Act 2003 (Commencement No. 2) Order 2003 (S.I. 2003/3142), art. 8(2) (with art. 11)

Commencement Information I782 Sch. 15 para. 21 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Applications for additional services licences 22 (1) Section 50 of the 1990 Act (applications for additional services licences) shall be

amended as follows.

(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.

Commencement Information I783 Sch. 15 para. 22 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Procedure on application etc. for additional television services licences 23 (1) Section 51 of the 1990 Act (consideration of applications for licences for additional

television services) shall be amended as follows.

(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”.

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(4) Subsections (2) and (7) shall cease to have effect.

Commencement Information I784 Sch. 15 para. 23 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Additional payments in respect of additional television services licences 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 ”.

Commencement Information I785 Sch. 15 para. 24 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Duration of additional television services licences 25 (1) Section 53 of the 1990 Act (duration and renewal of additional television services

licences) shall be amended as follows.

(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.

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(13) In this section “the television transfer date” has the same meaning as in the Communications Act 2003.”

Commencement Information I786 Sch. 15 para. 25 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Additional television services not to interfere with other transmissions 26 (1) Section 54 of the 1990 Act (additional television services not to interfere with other

transmissions) shall be amended as follows.

(2) In subsection (1), for “the Commission” there shall be substituted “ OFCOM ”.

(3) Subsection (2) shall cease to have effect.

Commencement Information I787 Sch. 15 para. 26 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of additional television services licences 27 (1) Section 55 of the 1990 Act (further provision in relation to additional television

services licences) shall be amended as follows.

(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. ”

Commencement Information I788 Sch. 15 para. 27 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

The Welsh Authority 28 (1) Section 58 of the 1990 Act (sources of programmes for S4C) shall be amended as

follows.

(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 ”.

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(4) After subsection (5) there shall be inserted—

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

Commencement Information I789 Sch. 15 para. 28 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Distribution of licensed public service channels 29 (1) Section 66 of the 1990 Act (requirements relating to transmission and distribution of

services) shall be amended as follows.

(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”.

Commencement Information I790 Sch. 15 para. 29 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of licences held by BBC companies 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 ”.

Commencement Information I791 Sch. 15 para. 30 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Interpretation of Part 1 31 (1) Section 71 of the 1990 Act (interpretation) shall be amended as follows.

(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;”.

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Commencement Information I792 Sch. 15 para. 31 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licensing functions of OFCOM 32 (1) Section 85 of the 1990 Act (licensing of independent radio services) shall be amended

as follows.

(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.”

Commencement Information I793 Sch. 15 para. 32 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licences under Part 3 of the 1990 Act 33 (1) Section 86 of the 1990 Act (licences under Part 3) shall be amended as follows.

(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).”

Commencement Information I794 Sch. 15 para. 33 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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General licence conditions 34 (1) Section 87 of the 1990 Act (general licence conditions) shall be amended as follows.

(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.

Commencement Information I795 Sch. 15 para. 34 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Restrictions on holding licences 35 (1) Section 88 of the 1990 Act (restrictions on the holding of licences) shall be amended

as follows.

(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

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(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, ”.

Commencement Information I796 Sch. 15 para. 35 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Disqualification of persons convicted of transmission offences 36 (1) Section 89 of the 1990 Act (offences giving rise to disqualification) shall be amended

as follows.

(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.

Commencement Information I797 Sch. 15 para. 36 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Offence of providing regulated radio services 37 (1) Section 97 of the 1990 Act (prohibition on providing services without a licence) shall

be amended as follows.

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(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 ”.

Commencement Information I798 Sch. 15 para. 37 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Applications for national licences 38 (1) Section 98 of the 1990 Act (applications for national licences) shall be amended as

follows.

(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) ”.

Commencement Information I799 Sch. 15 para. 38 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Consideration of applications for a national licence 39 (1) Section 99 of the 1990 Act (consideration of applications for national licence) shall

be amended as follows.

(2) For “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

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(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 ”.

Commencement Information I800 Sch. 15 para. 39 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Award of national licences 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 ”.

Commencement Information I801 Sch. 15 para. 40 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Failure to begin providing licensed service 41 (1) Section 101 of the 1990 Act (failure to begin providing licensed service) shall be

amended as follows.

(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 ”.

Commencement Information I802 Sch. 15 para. 41 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Additional payments in respect of national licences 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 ”.

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Commencement Information I803 Sch. 15 para. 42 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Restrictions affecting change in control of holder of national licence 43 (1) Section 103 of the 1990 Act (restrictions on change of control of national licence)

shall be amended as follows.

(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. ”

Commencement Information I804 Sch. 15 para. 43 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Renewal of national licences 44 (1) Section 103A of the 1990 Act (renewal of national licences) shall be amended as

follows.

(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)—

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(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.”

(8) After subsection (10) there shall be inserted—

“(10A) In the case of a pre-transfer national 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 national licence granted by OFCOM under this Part after the radio transfer date.”

(9) 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.”

Commencement Information I805 Sch. 15 para. 44 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Applications for local licences 45 (1) Section 104 of the 1990 Act (application for local licences) shall be amended as

follows.

(2) For “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (6), for the words from the beginning to “shall be made” there shall be substituted “ An application for a licence to provide a restricted service shall be made ”.

Commencement Information I806 Sch. 15 para. 45 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Renewal of local licences 46 (1) Section 104A of the 1990 Act (renewal of local licences) shall be amended as follows.

(2) For “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1), for “eight” there shall be substituted “ twelve ”.

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(4) In subsection (3), after “not later than” there shall be inserted “ the day falling three months before ”.

(5) After subsection (12) there shall be inserted—

“(12A) 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.”

(6) In subsection (13)(d), for “paragraph 3A of Part I of Schedule 2” there shall be substituted “ paragraph 8(2) of Schedule 14 to the Communications Act 2003 ”.

(7) After subsection (13) there shall be inserted—

“(14) 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.”

Commencement Information I807 Sch. 15 para. 46 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Special procedure for applications for local licences 47 (1) Section 104B of the 1990 Act (special procedure for applications for local licences)

shall be amended as follows.

(2) For “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) After subsection (1) there shall be inserted—

“(1A) 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.”

Commencement Information I808 Sch. 15 para. 47 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Special requirements relating to grant of local licences 48 (1) Section 105 of the 1990 Act (special requirements relating to grant of local licences)

shall be amended as follows.

(2) For “the Authority” there shall be substituted “ OFCOM ”.

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(3) For paragraph (d) (duty to have regard to the extent to which proposed service supported by persons living in the area) there shall be substituted—

“(d) 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.”

Commencement Information I809 Sch. 15 para. 48 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Requirements as to character and coverage of services 49 In subsections (1) to (4) and (6) of section 106 of the 1990 Act (requirements as to

character and coverage of services), for “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I810 Sch. 15 para. 49 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of licences 50 In sections 109 to 111A of the 1990 Act (enforcement of licences), for “the

Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I811 Sch. 15 para. 50 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Power to suspend licences to provide radio licensable content services from a satellite 51 (1) Section 111B of the 1990 Act (power to suspend licence to provide satellite service)

shall be amended as follows.

(2) For “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1)— (a) in paragraph (a), for “satellite service” there shall be substituted “ radio

licensable content service ”; (b) in paragraph (b), for the words from “included in the licence” to the end of the

paragraph there shall be substituted “ which in compliance with section 263 of the Communications Act 2003 is included in the licence for the purpose of securing the objective mentioned in section 319(2)(b) of that Act, and ”.

Commencement Information I812 Sch. 15 para. 51 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Additional radio services 52 (1) Section 114 of the 1990 Act (additional radio services) shall be amended as follows.

(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 sound 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) At any time while an additional services licence is in force, OFCOM may, if they consider it appropriate to do so, modify or further modify the determination made for the purposes of that licence under subsection (2)(b); and where there has been such a modification or further modification, the licence shall have effect accordingly.

(2B) A modification or further modification under subsection (2A) must not reduce the amount of spare capacity made available for the licensed services.”

(5) In subsection (3), for the words from the beginning to “subsection (2)(a)” there shall be substituted “ OFCOM shall, when determining under subsection (2) ”.

(6) For subsection (6) there shall be substituted—

“(6) In this section “electronic signal” means a signal within the meaning of section 32 of the Communications Act 2003.

(7) In this section and section 115 “relevant frequency” means a frequency made available by OFCOM for the purposes of a sound broadcasting service.”

(7) This paragraph does not affect the validity of a licence granted or last renewed before the radio transfer date, or the services licensed by any such licence.

Commencement Information I813 Sch. 15 para. 52(1)(2)(a) in force at 25.7.2003 by S.I. 2003/1900, art. 2(1), Sch. 1 I814 Sch. 15 para. 52(2)(b) (3)-(7) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licensing of additional radio services 53 (1) Section 115 of the 1990 Act (licensing of additional radio services) shall be amended

as follows.

(2) For “The Authority” and “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

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(3) In subsection (1), for the words from “of the following” to “114(1)(b)” there shall be substituted “ relevant frequency ”.

(4) In subsection (4), at the end there shall be inserted “ and who would not be in contravention of the requirements imposed by or under Schedule 14 to the Communications Act 2003 if he held such a licence ”.

(5) In subsection (8), for “local, restricted or satellite service” there shall be substituted “ local or restricted service or to provide a radio licensable content service ”.

Commencement Information I815 Sch. 15 para. 53(1) (4) in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2 I816 Sch. 15 para. 53(2) (3) (5) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Applications for additional radio services licences 54 (1) Section 116 of the 1990 Act (applications for additional radio services licences) shall

be amended as follows.

(2) For “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1)(b)(iii), the words “(subject to the approval of the Secretary of State)” shall be omitted.

Commencement Information I817 Sch. 15 para. 54 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Procedure for awarding additional radio services licences 55 (1) Section 117 of the 1990 Act (procedure for awarding additional radio services

licences) shall be amended as follows.

(2) For “the Authority”, 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 116(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.

Commencement Information I818 Sch. 15 para. 55 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Additional payments in respect of additional radio services licences 56 In section 118 of the 1990 Act (additional payments in respect of additional

radio services licences), for “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I819 Sch. 15 para. 56 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Additional radio services not to interfere with other transmissions 57 (1) Section 119 of the 1990 Act (additional radio services not to interfere with other

transmissions) shall be amended as follows.

(2) In subsection (1), for “the Authority” there shall be substituted “ OFCOM ”.

(3) Subsection (2) shall cease to have effect.

Commencement Information I820 Sch. 15 para. 57 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of additional radio services licences 58 In section 120 of the 1990 Act (enforcement of additional radio services licences),

for “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I821 Sch. 15 para. 58 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Interpretation 59 In subsection (1) of section 126 of the 1990 Act (interpretation of Part 3)—

(a) for the definition of “independent radio service” there shall be substituted—

““independent radio service” means a service falling to be regulated under section 245 of the Communications Act 2003;”;

(b) for the definitions of “local service”, “national service”, “restricted service” and “satellite service” there shall be substituted—

““local service”, “national service” and “restricted service” each has the same meaning as in section 245 of the Communications Act 2003;

“pre-transfer local licence” and “pre-transfer national licence” each has the same meaning as in section 253 of that Act;

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“radio licensable content service” has the same meaning as in Part 3 of that Act;

“radio transfer date” has the same meaning as in that Act;”; (c) in the definition of “sound broadcasting service” for the words from “(as

defined” to the end there shall be substituted “ (within the meaning of Part 3 of the Communications Act 2003); ”.

Commencement Information I822 Sch. 15 para. 59 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Duty to provide advance information about programmes 60 In column 1 of the Table in section 176(7) of the 1990 Act (persons who are the

providers of services for the purposes of the obligations to give advance information about programmes)—

(a) for “regulation by the Independent Television Commission” there shall be substituted “ regulation by OFCOM ”;

(b) for “The television broadcasting service provided by the Welsh Authority and the service referred to in section 57(1A)(a)” there shall be substituted “ The public television services of the Welsh Authority (within the meaning of Part 2 of Schedule 12 to the Communications Act 2003) ”;

(c) for “section 84(2)(a)(i)” there shall be substituted “ section 126(1) ”; (d) for “the Radio Authority”, in both places, there shall be substituted “

OFCOM ”.

Commencement Information I823 Sch. 15 para. 60 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Proscription of foreign satellite services 61 (1) Section 177 of the 1990 Act (proscription of foreign satellite stations) shall be

amended as follows.

(2) In subsection (2), for “the Independent Television Commission or the Radio Authority consider that the quality of any relevant” there shall be substituted “ OFCOM consider that the quality of any ”.

(3) In subsection (3), for the words from the beginning to “Authority” there shall be substituted “ OFCOM ”.

(4) In subsection (6), the definition of “relevant foreign satellite service” shall be omitted.

Commencement Information I824 Sch. 15 para. 61 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Financing of Gaelic Broadcasting 62 (1) Section 183 of the 1990 Act (financing of Gaelic Broadcasting) shall be amended

as follows.

(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (2), for “by them under this section to be” there shall be substituted “ by the Independent Television Commission under this section and ”.

(4) This paragraph— (a) so far as it relates to subsection (1) of section 183 has effect in relation only

to financial years beginning after the television transfer date; and (b) so far as it relates to subsection (2) of that section does not apply to amounts

paid for earlier financial years.

Commencement Information I825 Sch. 15 para. 62 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Gaelic Broadcasting in Scotland 63 (1) Section 184 of the 1990 Act (broadcasting of programmes in Gaelic on Channel 3

in Scotland) shall be amended as follows.

(2) In subsection (1), for the words “subsection (2)” there shall be substituted “ subsection (1)(a) ”.

(3) In subsection (3), for the words from “The conditions” to “the purpose of” there shall be substituted “ The regulatory regime for a service to which this section applies includes the conditions that OFCOM consider appropriate for ”.

(4) After that subsection there shall be inserted—

“(3A) Section 263 of the Communications Act 2003 (regulatory regime) applies in relation to conditions included by virtue of subsection (3) in the regulatory regime for a licensed service as it applies in relation to conditions which are so included by virtue of a provision of Chapter 4 of Part 3 of that Act.”

(5) In subsection (4)(b), for “the Commission” there shall be substituted “ OFCOM ”.

Commencement Information I826 Sch. 15 para. 63 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Maintenance of the national television archive 64 (1) In section 185 of the 1990 Act (maintenance of the national television archive)—

(a) for “The Commission” and “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(b) in subsection (5), the definition of “the Commission” shall be omitted.

(2) This paragraph so far as it relates to subsection (1) of that section has effect in relation only to financial years beginning after the television transfer date.

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Commencement Information I827 Sch. 15 para. 64 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Modification of networking arrangements 65 (1) Section 193 of the 1990 Act (modification of networking arrangements in

consequence of competition legislation) shall be amended as follows.

(2) In subsection (1), for the words from “the Office of Fair Trading” to “relevant authority')” there shall be substituted “ the relevant authority ”.

(3) After subsection (2) there shall be inserted—

“(2A) In subsection (1), “relevant authority” means— (a) in relation to a relevant order falling within subsection (2)(a), the

Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State;

(b) in relation to a relevant order falling within subsection (2)(b), the Office of Fair Trading, the Competition Commission, the Secretary of State or (as the case may be) OFCOM.”

(4) In subsection (4), for “section 39(1) above” there shall be substituted “ section 290(4) of the Communications Act 2003 ”.

Commencement Information I828 Sch. 15 para. 65 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Search warrants 66 (1) Section 196 of the 1990 Act (grant of search warrant to person authorised by the

Independent Television Commission or the Radio Authority) shall be amended as follows.

(2) In subsection (1), for “the relevant authority” there shall be substituted “ OFCOM ”.

(3) Subsection (2) (definition of “relevant authority”) shall be omitted.

Commencement Information I829 Sch. 15 para. 66 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Notices 67 In section 199(5) of the 1990 Act (publication of notices), for paragraphs (a) and

(b) there shall be substituted “ by OFCOM under section 21, 41, 42, 55, 103, 109, 110, 111 or 120 ”.

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Commencement Information I830 Sch. 15 para. 67 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Interpretation 68 (1) Section 202 of the 1990 Act (general interpretation) shall be amended as follows.

(2) In subsection (1), after the definition of “modifications” there shall be inserted—

““OFCOM” means the Office of Communications;”.

(3) After subsection (6) there shall be inserted—

“(6A) Subsections (2) and (3) of section 362 of the Communications Act 2003 (persons by whom services provided) are to apply for the purposes of this Act as they apply for the purposes of Part 3 of that Act.”

Commencement Information I831 Sch. 15 para. 68 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Disqualified persons 69 (1) Schedule 2 to the 1990 Act (restrictions on the holding of licences) shall be amended

as follows.

(2) In paragraph 1(1) of Part 1, after the definition of “associate” there shall be inserted—

““Broadcasting Act licence” means a licence under Part 1 or 3 of this Act or Part 1 or 2 of the Broadcasting Act 1996;”.

(3) In paragraph 1(6) of Part 1 (meaning of “more than a 20 per cent. interest”), for “20 per cent.”, wherever occurring, there shall be substituted “ 5 per cent. ”.

(4) In Part 2 (disqualified persons), for “a licence granted by the Commission or the Authority”, wherever occurring, there shall be substituted “ a Broadcasting Act licence ”.

(5) In paragraph 1(1)(i) of Part 2 (bodies controlled by persons falling within paragraphs (a) to (g)), for “(a)” there shall be substituted “ (c) ”.

(6) In paragraph 3(1) of Part 2, for “by the Authority” there shall be substituted “ under Part 3 of this Act or Part 2 of the Broadcasting Act 1996 ”.

(7) In paragraph 4(1) of Part 2, for “that body” there shall be substituted “ OFCOM ”.

(8) In paragraph 4(2) of Part 2— (a) in paragraph (a), for “by the Commission, means a body” there shall be

substituted “ under Part 1 of this Act or Part 1 of the Broadcasting Act 1996, means a person ”; and

(b) in paragraph (b), for “by the Authority, means a body” there shall be substituted “ under Part 3 of this Act or Part 2 of the Broadcasting Act 1996, means a person ”.

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(9) In paragraph 5A of Part 2— (a) in sub-paragraph (1)(a), the words “granted by the Commission”, (b) sub-paragraph (1)(b) and the word “and” immediately preceding it, (c) in sub-paragraph (2), the words “granted by the Authority”,

shall be omitted.

Commencement Information I832 Sch. 15 para. 69 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

C4C 70 (1) Schedule 3 to the 1990 Act (provision about constitution and management of C4C)

shall be amended as follows.

(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In paragraph 2(1) (persons disqualified from membership of the Corporation), for paragraphs (b) to (d) there shall be substituted “or

(b) a member or employee of OFCOM.”

Commencement Information I833 Sch. 15 para. 70 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

The Welsh Authority 71 (1) Schedule 6 to the 1990 Act (provision about constitution and management of the

Welsh Authority) shall be amended as follows.

(2) In paragraph 2 (persons disqualified from membership of the Authority)— (a) sub-paragraph (1) shall be omitted; and (b) in sub-paragraph (2)(b), for “the Commission” there shall be substituted “

OFCOM ”.

(3) In paragraph 12(1A), for the words from “the general fund” onwards there shall be substituted “ the assets of the Authority that are not comprised in that fund; and accordingly, the statement must deal with liabilities separately according to whether they fall to be met from that fund or from those assets. ”

Commencement Information I834 Sch. 15 para. 71 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Computation of qualifying revenue 72 (1) Schedule 7 to the 1990 Act (computation of “qualifying revenue”) shall be amended

as follows.

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(2) In Part 1, for “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In Part 2, for “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I835 Sch. 15 para. 72 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

The Gaelic Television Committee 73 (1) Schedule 19 to the 1990 Act (Gaelic Television Committee) shall be amended as

follows.

(2) For “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) For “Committee”, wherever occurring, there shall be substituted “ Service ”.

(4) In paragraph 8(c), the words “and (where the expenses relate to the Commission’s functions in connection with sound programmes) the Radio Authority” shall be omitted.

(5) In paragraph 11(4), the words “or the Radio Authority” and “or (as the case may be) the Authority” shall be omitted.

Commencement Information I836 Sch. 15 para. 73 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

PART 2

AMENDMENTS OF THE 1996 ACT

Multiplex services and digital programme services 74 (1) Section 1 of the 1996 Act (interpretation) shall be amended as follows.

(2) For subsection (1) there shall be substituted—

“(1) In this Part “multiplex service” means (except where the context otherwise requires) a television multiplex service.”

(3) In subsection (4), for “for general reception” there shall be substituted “ so as to be available for reception by members of the public ”.

(4) For subsection (4A) there shall be substituted—

“(4A) In subsection (4), “available for reception by members of the public” means available for reception by members of the public (within the meaning of Part 3 of the Communications Act 2003) in the United Kingdom or another EEA State, or in an area of the United Kingdom or of such a State.”

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(5) For subsection (7) of that section there shall be substituted—

“(7) In this section “broadcast” means broadcast otherwise than from a satellite.”

Commencement Information I837 Sch. 15 para. 74 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Meaning of qualifying service 75 In section 2 of the 1996 Act (meaning of “qualifying service” etc.), for subsections

(2) to (6) there shall be substituted—

“(2) In this Part “qualifying service” means any of the following, so far as they are provided with a view to their being broadcast in digital form—

(a) a television broadcasting service included in Channel 3; (b) Channel 4; (c) Channel 5; (d) S4C Digital; (e) a television programme service provided by the Welsh Authority

with the approval of the Secretary of State under section 205 of the Communications Act 2003;

(f) the digital public teletext service.”

Commencement Information I838 Sch. 15 para. 75 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licences under Part 1 76 (1) Section 3 of the 1996 Act (licences under Part 1 of that Act) shall be amended as

follows.

(2) In subsection (1), for “the Independent Television Commission (in this Part referred to as the “the Commission”)” there shall be substituted “ OFCOM ”.

(3) In subsections (3) to (7), for “The Commission” and “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(4) For subsection (8) 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).”

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Commencement Information I839 Sch. 15 para. 76 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licence conditions 77 (1) Section 4 of the 1996 Act (general licence conditions) shall be amended as follows.

(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1), in each of paragraphs (a) and (c), for “the 1990 Act or this Act” there shall be substituted “ this Act, the 1990 Act or the Communications Act 2003 ”.

(4) In subsection (3) (fixing fees), the words from “and the amount” onwards shall be omitted.

Commencement Information I840 Sch. 15 para. 77 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Restrictions on digital licence holding 78 (1) Section 5 of the 1996 Act (restrictions on holding licences) shall be amended as

follows.

(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 to the 1990 Act; 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 ”.

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(b) in paragraph (b)(i), for “Parts III and IV of Schedule 2 to the 1990 Act” there shall be substituted “ the requirements imposed by or under Schedule 14 to the Communications Act 2003 ”.

(5) In subsection (7)— (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) In subsection (8), 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 the 1990 Act or a contravention of a requirement imposed by or under Schedule 14 to the Communications Act 2003, ”.

Commencement Information I841 Sch. 15 para. 78 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Multiplex licences 79 (1) Section 7 of the 1996 Act (multiplex licences) shall be amended as follows.

(2) For “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (4)— (a) after paragraph (c) there shall be inserted—

“(ca) the applicant’s proposals as to the number (if any) of digital sound programmes services which are to be broadcast, as to the characteristics of each of those services and as to the areas in which they would be provided;”

(b) in paragraph (d) for “those services” there shall be substituted “ the services mentioned in paragraphs (c) and (ca) ”.

Commencement Information I842 Sch. 15 para. 79 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Award of multiplex licences 80 (1) Section 8 of the 1996 Act (award of multiplex licences) shall be amended as follows.

(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (2)(f), after “digital programme service” there shall be inserted “ , digital sound programme service ”.

Commencement Information I843 Sch. 15 para. 80 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Power to require two or more multiplex licences to be granted to one person 81 In section 9 of the 1996 Act (grant of two or more multiplex licences to one person),

for “The Commission” and “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I844 Sch. 15 para. 81 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Award of multiplex licences subject to conditions 82 (1) Section 10 of the 1996 Act (award of multiplex licences subject to conditions) shall

be amended as follows.

(2) For “The Commission” and “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1)(a), for “the 1990 Act or this Act” there shall be substituted “ this Act, the 1990 Act or Part 3 of the Communications Act 2003 ”.

Commencement Information I845 Sch. 15 para. 82 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Failure to provide licensed service and revocation 83 In section 11 of the 1996 Act (failure to provide licensed service and revocation),

for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I846 Sch. 15 para. 83 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Conditions attached to multiplex licences 84 In section 12 of the 1996 Act (conditions attached to multiplex licences), for “the

Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I847 Sch. 15 para. 84 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Additional payments in respect of multiplex licences 85 In section 13 of the 1996 Act (additional payments in respect of multiplex licences),

for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

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Commencement Information I848 Sch. 15 para. 85 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Multiplex revenue 86 (1) Section 14 of the 1996 Act (multiplex revenue) shall be amended as follows.

(2) In subsection (1)— (a) for “section 13(1)” there shall be substituted “ this Part ”; (b) for “the holder of a multiplex licence” there shall be substituted “ the person

who is the multiplex provider in relation to any television multiplex service or any general multiplex service ”;

(c) in paragraph (a), for “the multiplex service to which the licence relates” there shall be substituted “ the relevant multiplex ”;

(d) in paragraph (b) for “of any qualifying service by means of the multiplex service” there shall be substituted “ by means of the multiplex service of any service which is a qualifying service or which (without being a qualifying service) is provided by the BBC ”;

(e) in paragraphs (c) and (d), for “the holder of the multiplex licence” and “the multiplex service”, in each place where they occur there shall be substituted, respectively, “ the multiplex provider ” and “ the relevant multiplex ”.

(3) In subsections (2) to (8)— (a) for the words “the holder of the multiplex licence” and “the licence holder”,

wherever occurring, there shall be substituted, in each case, “ the multiplex provider ”; and

(b) for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(4) In subsection (9)— (a) for “a multiplex licence”, in each place, there shall be substituted “ a

television multiplex service or a general multiplex service ”; (b) for “the multiplex service to which the licence relates”, in each place, there

shall be substituted “ that multiplex service ”; (c) after the definition of “additional services provider” there shall be inserted—

““multiplex provider”— (a) in relation to a television multiplex service for which a

person holds a licence under this Part, means the licence holder; and

(b) in relation to a television multiplex service which is not licensed under this Part or a general multiplex service, means the person who provides that service;”

(d) after the definition of “programme provider” there shall be inserted—

““the relevant multiplex”— (a) in relation to a multiplex provider falling within

paragraph (a) of the definition of that expression, means the television multiplex service to which his licence relates; and

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(b) in relation to any other multiplex provider, means the television multiplex service or general multiplex service which is provided by him;

and this section and section 15 shall have effect as if references in this section to digital programme services included references to digital sound programme services and references to digital additional services included references to digital additional services within the meaning of Part 2.”

Commencement Information I849 Sch. 15 para. 86 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Attribution of multiplex revenue to multiplex providers 87 (1) Section 15 of the 1996 Act (attribution of multiplex revenue to licence holder) shall

be amended as follows.

(2) In subsection (1)— (a) for “the holder of a multiplex licence” there shall be substituted “ the person

who is the multiplex provider in relation to any television multiplex service ”;

(b) for “of multiplex services in that period,” there shall be substituted “ in that period of television multiplex services, ”;

(c) for “the holder of the multiplex licence” there shall be substituted, “ the multiplex provider ”.

(3) In subsection (2)— (a) for “a multiplex service” there shall be substituted “ a television multiplex

service or a general multiplex service ”; (b) for “the holder of the multiplex licence”, wherever occurring, there shall be

substituted “ the multiplex provider ”.

(4) In subsection (3)— (a) for “the Commission” there shall be substituted “ OFCOM ”; and (b) for “the holder of the multiplex licence” there shall be substituted “ the

multiplex provider ”.

(5) In subsection (4)— (a) after “additional services provider” there shall be inserted “ , ‘multiplex

provider’ ”; and (b) for “a multiplex licence” there shall be substituted “ a television multiplex

service or a general multiplex service ”.

Commencement Information I850 Sch. 15 para. 87 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Duration of multiplex licences 88 (1) Section 16 of the 1996 Act (duration and renewal of multiplex licences) shall be

amended as follows.

(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (3), after “not later than” there shall be inserted “ the day falling three months before ”.

(4) After subsection (12), there shall be inserted—

“(12A) A determination for the purposes of subsection (12)— (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.”

Commencement Information I851 Sch. 15 para. 88 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of multiplex licences 89 In section 17 of the 1996 Act (enforcement of multiplex licences), for “the

Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I852 Sch. 15 para. 89 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licensing of digital programme services 90 (1) Section 18 of the 1996 Act (licensing of digital programme services) shall be

amended as follows.

(2) In subsections (1) to (4), for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) Subsections (5) and (6) (application of sections 6 to 12 of the 1990 Act) shall cease to have effect.

Commencement Information I853 Sch. 15 para. 90 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Conditions of licences for digital programme services 91 (1) Section 19 of the 1996 Act (conditions of licences for digital programme services)

shall be amended as follows.

(2) In subsection (3)—

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(a) for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”;

(b) in paragraphs (a) and (c), for “the holder of a multiplex licence” there shall be substituted, in each case, “ the provider of a television multiplex service or general multiplex service ”;

(c) in paragraph (a), for “by means of a multiplex service” there shall be substituted “ by means of that provider’s service ”; and

(d) in paragraph (a)(i), for “the identity of the multiplex service” there shall be substituted “ the identity of the service by means of which it will be broadcast ”.

(3) Subsections (2) and (4) to (10) of that section shall cease to have effect.

Commencement Information I854 Sch. 15 para. 91 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Duration and enforcement of multiplex licenses 92 (1) Section 23 of the 1996 Act (enforcement of digital programme licences) shall be

amended as follows.

(2) For “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (4), for the words from “multiplex service” onwards there shall be substituted “ television multiplex service or general multiplex service, means the last accounting period of the multiplex provider ”.

(4) In subsection (5), for “multiplex service, the first accounting period of the holder of the multiplex licence” there shall be substituted “ television multiplex service or general multiplex service, the first accounting period of the multiplex provider ”.

(5) After that subsection there shall be inserted—

“(5A) In subsections (4) and (5) “multiplex provider” has the same meaning as in section 14.”

(6) In subsection (8) for “apology” there shall be substituted “ statement of findings ”.

Commencement Information I855 Sch. 15 para. 92 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Digital additional services 93 (1) Section 24 of the 1996 Act (digital additional services) shall be amended as follows.

(2) In subsection (1), for paragraphs (a) and (b) there shall be substituted— “(a) is provided by a person with a view to its being broadcast in digital

form (whether by him or some other person) so as to be available for reception by members of the public;

(b) is so provided with a view either—

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(i) to the broadcasting being by means of a television multiplex service or by means of a general multiplex service; or

(ii) to the members of the public in question being or including members of the public in an EEA State other than the United Kingdom, or in an area of such a State;

and (c) is not a Channel 3 service, Channel 4, Channel 5, a public television

service of the Welsh Authority, the digital public teletext service, a digital programme service, a digital sound programme service, an ancillary service or a technical service.”

(3) In subsection (2) (meaning of ancillary service)— (a) for “an independent analogue broadcaster” there shall be substituted “ a

relevant public service broadcaster ”; and (b) for paragraphs (a) and (b) there shall be substituted—

“(a) assistance for disabled people in relation to some or all of the programmes included in a digital programme service or qualifying service provided by him;

(b) a service (apart from advertising) that relates to the promotion or listing of programmes included in such a service or in a digital sound programme service so provided; or

(c) any other service (apart from advertising) that is ancillary to one or more programmes so included, and relates directly to their contents.”

(4) In subsection (3)(a), after “digital programme services” there shall be inserted “ , digital sound programme services ”.

(5) After subsection (3) there shall be inserted—

“(3A) In this section—

“assistance for disabled people” has the same meaning as in Part 3 of the Communications Act 2003;

“available for reception by members of the public” shall be construed in accordance with section 361 of that Act;

“public television service of the Welsh Authority” means— (a) S4C Digital; or (b) any television programme service the provision of which by the

Authority is authorised by or under section 205 of that Act and which is provided in digital form;

“relevant public service broadcaster” means any of the following— (a) a person licensed under Part 1 of the 1990 Act to provide a Channel

3 service; (b) the Channel 4 Corporation; (c) a person licensed under Part 1 of the 1990 Act to provide Channel 5; (d) the BBC; (e) the Welsh Authority; (f) the public teletext provider.”

Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts Document Generated: 2021-03-19

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Commencement Information I856 Sch. 15 para. 93 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licensing of digital additional services 94 (1) Section 25 of the 1996 Act (licensing of digital additional services) shall be amended

as follows.

(2) In subsections (1) to (4), for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) After subsection (4) there shall be inserted—

“(4A) A digital additional services licence is not required for a service that is or is comprised in a qualifying service.”

(4) Subsections (5) and (6) (application of sections 6 to 12 of the 1990 Act) shall cease to have effect.

Commencement Information I857 Sch. 15 para. 94 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Conditions of digital additional services licence 95 (1) Section 26 of the 1996 Act (conditions of licences for digital additional services)

shall be amended as follows.

(2) In subsection (2)— (a) for “the Commission”, wherever occurring, there shall be substituted “

OFCOM ”; (b) in paragraphs (a) and (c), for “the holder of a multiplex licence” there shall

be substituted, in each case, “ the provider of a television multiplex service or general multiplex service ”;

(c) in paragraph (a), for “by means of a multiplex service” there shall be substituted “ by means of that provider’s service ”; and

(d) in paragraph (a)(i), for “the identity of the multiplex service” there shall be substituted “ the identity of the service by means of which it will be broadcast ”.

Commencement Information I858 Sch. 15 para. 95 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of digital additional television services licences 96 (1) Section 27 of the 1996 Act (enforcement of digital additional television services

licences) shall be amended as follows.

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(2) For “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (4), for the words from “multiplex service” onwards there shall be substituted “ television multiplex service or general multiplex service, means the last accounting period of the multiplex provider ”.

(4) In subsection (5), for “multiplex service, the first accounting period of the holder of the multiplex licence” there shall be substituted “ television multiplex service or general multiplex service, the first accounting period of the multiplex provider ”.

(5) After that subsection there shall be inserted—

“(5A) In subsections (4) and (5) “multiplex provider” has the same meaning as in section 14.”

Commencement Information I859 Sch. 15 para. 96 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Digital broadcasting of Gaelic programmes 97 (1) Section 32 of the 1996 Act (digital broadcasting of Gaelic programmes) shall be

amended as follows.

(2) In subsection (1), for “the Commission to include in any multiplex licence granted in respect of one frequency to which section 28 applies” there shall be substituted “ OFCOM to include in no more than one relevant multiplex licence ”.

(3) In subsection (7), for “Comataidh Craolaidh Gaidhlig” there shall be substituted “ Seirbheis nam Meadhanan Gàidhlig ”.

(4) For subsection (9) there shall be substituted—

“(9) In this section—

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

“relevant multiplex licence” means a multiplex licence in respect of which the Secretary of State has made an order under section 243(3) of the Communications Act 2003;

“television broadcasting service” has the same meaning as in Part 3 of the Communications Act 2003.”

Commencement Information I860 Sch. 15 para. 97 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Review of digital television broadcasting 98 (1) Section 33 of the 1996 Act (review of digital television broadcasting) shall be

amended as follows.

Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts Document Generated: 2021-03-19

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(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1)(a)(ii), for the words “services specified in section 2(3), S4C Digital, the qualifying teletext service” there shall be substituted “ following services, namely, Channel 3 services, Channel 4, Channel 5, the public television services of the Welsh Authority (within the meaning of Part 2 of Schedule 12 to the Communications Act 2003), the digital public teletext service ”.

Commencement Information I861 Sch. 15 para. 98 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of licences held by BBC companies 99 In section 35 of the 1996 Act (enforcement of licences held by BBC companies),

for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I862 Sch. 15 para. 99 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Interpretation of Part 1 100 In section 39(1) (interpretation of Part 1)—

(a) after the definition of “digital programme service” there shall be inserted—

““digital public teletext service” has the same meaning as in Part 3 of the Communications Act 2003;

“digital sound programme service” has the same meaning as in Part 2 of this Act;

“general multiplex service” has the same meaning as in that Part;”. (b) for the definition of “public teletext provider” there shall be substituted—

““public teletext provider” means the person for the time being licensed under Part 1 of the 1990 Act to provide the public teletext service (within the meaning of Part 3 of the Communications Act 2003);”

(c) for the definitions of “S4C” and “on S4C” and of “S4C Digital” and “on S4C Digital” there shall be substituted—

““S4C” and “S4C Digital” each has the same meaning as in Part 3 of the Communications Act 2003;”.

(d) after the definition of “technical service” there shall be inserted—

““television multiplex service” has the meaning given by section 241 of the Communications Act 2003.”

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Commencement Information I863 Sch. 15 para. 100 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Radio multiplex services 101 (1) Section 40 of the 1996 Act (radio multiplex services) shall be amended as follows.

(2) For subsections (1) to (3) there shall be substituted—

“(1) In this Part “radio multiplex service” means a radio multiplex service within the meaning of Part 3 of the Communications Act 2003.”

(3) In subsection (4) (local and national multiplex services), the words “provided on a frequency or frequencies assigned to the Authority under section 45(1)” shall be omitted.

(4) In subsection (5), for “for general reception” there shall be substituted “ so as to be available for reception by members of the public ”.

(5) For subsection (8) of that section there shall be substituted—

“(8) In this section—

“available for reception by members of the public” shall be construed in accordance with section 361 of the Communications Act 2003;

“broadcast” means broadcast otherwise than from a satellite.”

Commencement Information I864 Sch. 15 para. 101 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Licences under Part 2 of the 1996 Act 102 (1) Section 42 of the 1996 Act (licences under Part 2) shall be amended as follows.

(2) In subsection (1), for “the Radio Authority (in this Part referred to as “the Authority”)” there shall be substituted “ OFCOM ”.

(3) In subsections (2), (5) and (6), for “The Authority” and “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(4) For subsection (3) (variation of licences) there shall be substituted—

“(3) OFCOM may vary a licence by a notice served on the licence holder.

(3A) OFCOM shall not vary— (a) the period for which a licence having effect for a specified period

is to continue in force, or (b) increase the total amount of digital capacity specified in a national

radio multiplex licence for the purposes of section 48(1A), unless the licence holder consents.

Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts Document Generated: 2021-03-19

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(3B) OFCOM shall not make any other variation of a licence unless the licence holder has been given a reasonable opportunity of making representations to OFCOM about the variation.”

(5) In subsection (4) (exceptions from power to vary licences), for “Paragraph (a) of subsection (3)” there shall be substituted “ Paragraph (a) of subsection (3A) ”.

(6) For subsection (7) there shall be substituted—

“(7) The holding of a licence by a person shall not relieve him— (a) of any liability in respect of a failure to hold a licence under section 1

of the Wireless Telegraphy Act 1949; or (b) of 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).”

Commencement Information I865 Sch. 15 para. 102 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

General licence conditions 103 (1) Section 43 of the 1996 Act (general licence conditions) shall be amended as follows.

(2) For “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1) (conditions may include conditions to give effect to duties imposed by or under 1990 Act or 1996 Act)—

(a) in paragraph (a), for “the 1990 Act or this Act” there shall be substituted “ this Act, the 1990 Act or the Communications Act 2003 ”; and

(b) in paragraph (d), after “this Act” there shall be inserted “ , the 1990 Act 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.

Commencement Information I866 Sch. 15 para. 103 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Restrictions on holding licences 104 (1) Section 44 of the 1996 Act (restrictions on the holding of licences) shall be amended

as follows.

(2) For “The Authority” and “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

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(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 to the 1990 Act; 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 to the 1990 Act” there

shall be substituted “ the requirements imposed by or under Schedule 14 to the Communications Act 2003 ”.

(5) In subsection (7)— (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) In subsection (8), 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 the 1990 Act or a contravention of a requirement imposed by or under Schedule 14 to the Communications Act 2003, ”.

Commencement Information I867 Sch. 15 para. 104 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

National radio multiplex licences 105 (1) Section 46 of the 1996 Act (national radio multiplex licences) shall be amended as

follows.

(2) For “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1)(d), for “a direction” there shall be substituted “ a condition ”.

Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts Document Generated: 2021-03-19

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Commencement Information I868 Sch. 15 para. 105 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Award of national radio multiplex licences 106 In section 47 of the 1996 Act (award of national radio multiplex licences), for “the

Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I869 Sch. 15 para. 106 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Reservation of capacity for independent national broadcasters 107 (1) Section 48 of the 1996 Act (reservation of digital capacity for independent

broadcasters) shall be amended as follows.

(2) For subsections (1) to (3) there shall be substituted—

“(1A) OFCOM must ensure that the conditions included in national radio multiplex licences (taken together) secure that an amount of digital capacity on the multiplex frequencies is reserved for every independent national broadcaster for the broadcasting of a simulcast radio service provided by that broadcaster.

(1B) Where the conditions of a licence for a national radio multiplex service reserve capacity on the frequency made available for that service for the broadcasting of a simulcast radio service provided by an independent national broadcaster, those conditions must also include the condition specified in subsection (1C).

(1C) That condition is the condition that OFCOM consider appropriate for securing that, in consideration of the making by the independent national broadcaster of the payments which —

(a) are agreed from time to time between him and the licence holder, or (b) in default of agreement, are determined under this section,

the licence holder uses, for the broadcasting of a simulcast radio service provided by that broadcaster, such of the reserved digital capacity as may be requested, from time to time, by that broadcaster.

(1D) Where conditions are included under this section in a national radio multiplex licence reserving capacity for an independent national broadcaster, OFCOM may include conditions relating to the broadcasting of the simulcast radio service in the licence for the national service provided by that broadcaster.”

(3) In subsections (4) to (6), for “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(4) In subsection (4), for “subsection (3)(a)” there shall be substituted “ subsection (1C) ”.

(5) After subsection (6) there shall be inserted—

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“(7) In this section “the multiplex frequencies” means the frequencies made available for the purposes of licensed national radio multiplex services.”

Commencement Information I870 Sch. 15 para. 107 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Reservation of digital capacity for BBC 108 (1) Section 49 of the 1996 Act (reservation of digital capacity for BBC) shall be amended

as follows.

(2) In subsections (1) to (3) and (6), for “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (4) (determination of capacity to be reserved), for the words from “If the BBC” to “the Secretary of State, who may” there shall be substituted “ If the BBC do not give their consent to the proposals within such period as OFCOM may specify in their notice under subsection (3), OFCOM shall ”.

(4) In subsection (5), for words from “the Secretary of State” onwards there shall be substituted “ OFCOM shall give the BBC an opportunity of making representations to them about their proposals. ”

(5) In subsection (6), after “and the BBC” there shall be inserted “ or (in default of agreement) determined under this section ”.

(6) After that subsection there shall be inserted—

“(7) Where the holder of the licence and the BBC fail to agree— (a) the payments to be made under a condition included in the licence

in accordance with subsection (6), or (b) the other terms that are to apply in relation to the use of digital

capacity in accordance with such a condition, either of them may refer the matter to OFCOM for determination.

(8) Before making a determination under subsection (7), OFCOM must give the licence holder and the BBC an opportunity of making representations to them about the matter.

(9) In making any determination under subsection (7), OFCOM shall have regard to—

(a) the expenses incurred, or likely to be incurred, by the licence holder in providing the local radio multiplex service in question, and

(b) the terms on which persons providing local radio multiplex services contract with persons providing local digital additional services for the broadcasting of those services.”

Commencement Information I871 Sch. 15 para. 108 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Local radio multiplex licences 109 (1) Section 50 of the 1996 Act (local radio multiplex licences) shall be amended as

follows.

(2) For “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (1)(b), for “the Secretary of State has” there shall be substituted “ OFCOM have ”.

(4) In subsection (2)(d), for “direction under section 49” substitute “ determination under section 49(4) ”.

Commencement Information I872 Sch. 15 para. 109 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Award of local multiplex licences 110 (1) Section 51 of the 1996 Act (award of local multiplex licences) shall be amended as

follows.

(2) For “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (2), for paragraph (f) there shall be substituted— “(f) 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; and”.

Commencement Information I873 Sch. 15 para. 110 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Power to require two or more local radio multiplex licences to be granted to one person 111 In section 52 of the 1996 Act (power to require two or more local radio multiplex

licences to be granted to one person), for “The Authority” and “the Authority” there shall be substituted “ OFCOM ”.

Commencement Information I874 Sch. 15 para. 111 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Failure to begin to provide licensed service 112 In section 53 of the 1996 Act (failure to provide licensed service), for “the

Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

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Commencement Information I875 Sch. 15 para. 112 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Conditions which may be attached to radio multiplex licences 113 In section 54 of the 1996 Act (conditions which may be attached to a radio multiplex

licence), for “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I876 Sch. 15 para. 113 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Additional payments to be made in respect of national radio multiplex licences 114 In section 55 of the 1996 Act (additional payments to be made in respect of national

radio multiplex licences) for “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I877 Sch. 15 para. 114 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Multiplex revenue 115 (1) Section 56 of the 1996 Act (multiplex revenue) shall be amended as follows.

(2) In subsection (1)— (a) for “section 55(1)” there shall be substituted “ this Part ”; (b) for “the holder of a national radio multiplex licence” there shall be

substituted “ the person who is the multiplex provider in relation to a national radio multiplex service ”;

(c) in paragraph (a)(i), “to which the licence relates” shall be omitted; (d) in paragraphs (c) and (d), for “the holder of the radio multiplex licence” there

shall be substituted “ the multiplex provider ”.

(3) In subsections (2) to (8)— (a) for “the holder of the radio multiplex licence”, “the licence holder” and

“the holder of the multiplex licence”, wherever occurring, there shall be substituted, in each case, “ the multiplex provider ”; and

(b) for “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(4) In subsection (9)— (a) for “a national radio multiplex licence”, in each place, there shall be

substituted “ a national radio multiplex service ”; (b) for “the radio multiplex service to which the licence relates”, in each place,

there shall be substituted “ that radio multiplex service ”;

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(c) after the definition of “additional services provider” there shall be inserted—

““multiplex provider”— (a) in relation to a national radio multiplex service for which

a person holds a licence under this Part, means the licence holder; and

(b) in relation to a national radio multiplex service which is not licensed under this Part, means the person who provides that service.”

Commencement Information I878 Sch. 15 para. 115 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Attribution of radio multiplex revenue 116 (1) Section 57 of the 1996 Act (attribution of radio multiplex revenue) shall be amended

as follows.

(2) In subsection (1)— (a) for “the holder of a national radio multiplex licence” there shall be

substituted “ the person who is the multiplex provider in relation to a national radio multiplex service ”; and

(b) for “the holder of the national radio multiplex licence” there shall be substituted “ the multiplex provider ”.

(3) In subsection (2), for “the holder of the radio multiplex licence”, wherever occurring, there shall be substituted “ the multiplex provider ”.

(4) In subsection (3)— (a) for “the Authority” there shall be substituted “ OFCOM ”; and (b) for “the holder of the national radio multiplex licence” there shall be

substituted “ the multiplex provider ”.

(5) In subsection (4)— (a) after “‘additional services provider’” there shall be inserted “ ‘, multiplex

provider’ ”; and (b) for “a national radio multiplex licence” there shall be substituted “ a national

radio multiplex service ”.

Commencement Information I879 Sch. 15 para. 116 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Duration and renewal of radio multiplex licences 117 (1) Section 58 of the 1996 Act (duration and renewal of radio multiplex licences) shall

be amended as follows.

(2) For “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

746 Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts

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(3) In subsection (3), after “not later than” there shall be inserted “ the day falling three months before ”.

(4) Subsection (5) (consent of the Secretary of State for exercise of certain powers in connection with renewal) shall cease to have effect.

(5) After subsection (12) there shall be inserted—

“(12A) A determination for the purposes of subsection (12)— (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.”

Commencement Information I880 Sch. 15 para. 117 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of radio multiplex licences 118 In section 59 of the 1996 Act (enforcement of radio multiplex licences), for “the

Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I881 Sch. 15 para. 118 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Digital sound programme licensing 119 (1) Section 60 of the 1996 Act (digital sound programme licensing) shall be amended

as follows.

(2) For “the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) After subsection (6), there shall be inserted—

“(6A) Section 89 of the 1990 Act (disqualification from being licence holder or concerned with the provision of a programme service if convicted of a transmitting offence) shall apply in relation to a licence under this section as it applies to a licence under Part 3 of that Act, but with the omission of paragraph (b) of subsection (3) of that section and of the word “or” immediately before that paragraph.”

(4) Sub-paragraph (3) does not impose a disqualification in respect of any offence committed before the commencement of that sub-paragraph.

Commencement Information I882 Sch. 15 para. 119 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts Document Generated: 2021-03-19

747

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Conditions of digital sound programme licences 120 (1) Section 61 of the 1996 Act (conditions of licences for digital sound programme

services) shall be amended as follows.

(2) In subsection (2)— (a) for “the Authority”, wherever occurring, there shall be substituted “ OFCOM

”; (b) in paragraphs (a) and (c), for “the holder of a radio multiplex licence”, there

shall be substituted, in each case, “ the provider of a radio multiplex service, of a television multiplex service or of a general multiplex service ”;

(c) in paragraph (a) for “by means of a radio multiplex service” there shall be substituted “ by means of the multiplex service ”; and

(d) in paragraph (a)(i) for “radio multiplex service” there shall be substituted “ multiplex service ”.

Commencement Information I883 Sch. 15 para. 120 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of digital sound programme licences 121 (1) Section 62 of the 1996 Act (enforcement of digital sound programme licences) shall

be amended as follows.

(2) For “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (4), for the words from “national radio multiplex service” onwards there shall be substituted “ relevant multiplex service, means the last accounting period of the multiplex provider ”.

(4) In subsection (5)— (a) for “national radio multiplex service” there shall be substituted “ relevant

multiplex service ”; (b) for “holder of the national radio multiplex licence” there shall be substituted

“ multiplex provider ”; and (c) for “the radio multiplex service” and “that radio multiplex service” there

shall be substituted “ that relevant multiplex service ”.

(5) After subsection (5A) (inserted by Schedule 13) there shall be inserted—

“(5B) For the purposes of this section, a service is a relevant multiplex service if it is—

(a) a national radio multiplex service; (b) a television multiplex service; or (c) a general multiplex service.

(5C) In this section, “multiplex provider”— (a) in relation to a national radio multiplex service, means the multiplex

provider within the meaning of section 56; and

748 Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts

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(b) in relation to a television multiplex service or a general multiplex service, means the multiplex provider within the meaning of section 14.”

(6) In subsection (10) for “apology” there shall be substituted “ statement of findings ”.

Commencement Information I884 Sch. 15 para. 121 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Digital additional sound services 122 In section 64 of the 1996 Act (licensing of digital additional sound services), for

“the Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I885 Sch. 15 para. 122 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Conditions of digital additional sound service 123 (1) Section 65 of the 1996 Act (conditions of licences for digital additional sound

services) shall be amended as follows.

(2) In subsection (2)— (a) for “the Authority”, wherever occurring, there shall be substituted “ OFCOM

”; (b) in paragraphs (a) and (c), for “the holder of a radio multiplex licence”, there

shall be substituted, in each case, “ the provider of a radio multiplex service or of a general multiplex service ”;

(c) in paragraph (a) for “by means of a radio multiplex service” there shall be substituted “ by means of the multiplex service ”; and

(d) in paragraph (a)(i) for “radio multiplex service” there shall be substituted “ multiplex service ”.

Commencement Information I886 Sch. 15 para. 123 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enforcement of digital additional sound services licences 124 (1) Section 66 of the 1996 Act (enforcement of digital additional services licences) shall

be amended as follows.

(2) For “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (4), for “national radio multiplex service” there shall be substituted “ relevant multiplex service ”.

Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts Document Generated: 2021-03-19

749

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(4) In subsection (5), for the words from “national radio multiplex service” onwards there shall be substituted “ relevant multiplex service, means the last accounting period of the multiplex provider ”.

(5) In subsection (6)— (a) for “national radio multiplex service” there shall be substituted “ relevant

multiplex service ”; (b) for “holder of the national radio multiplex licence” there shall be substituted

“ multiplex provider ”; and (c) for “the radio multiplex service” and “that radio multiplex service” there

shall be substituted “ that relevant multiplex service ”.

(6) After subsection (6A) (inserted by Schedule 13) there shall be inserted—

“(6B) For the purposes of this section, a service is a relevant multiplex service if it is—

(a) a national radio multiplex service; or (b) a general multiplex service.

(6C) In this section, “multiplex provider”— (a) in relation to a national radio multiplex service, means the multiplex

provider within the meaning of section 56; and (b) in relation to a general multiplex service, means the multiplex

provider within the meaning of section 14.”

(7) In subsection (10) for “apology” there shall be substituted “ statement of findings ”.

Commencement Information I887 Sch. 15 para. 124 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Review of digital radio broadcasting 125 In section 67 of the 1996 Act (review of digital radio broadcasting), for “the

Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I888 Sch. 15 para. 125 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Interpretation 126 In section 72(1) of the 1996 Act (interpretation), for the definition of “radio

multiplex service” there shall be substituted—

““radio multiplex service” means a radio multiplex service within the meaning of Part 3 of the Communications Act 2003;

“the radio transfer date” has the same meaning as in the Communications Act 2003;”.

750 Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts

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Commencement Information I889 Sch. 15 para. 126 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Listed events 127 (1) Section 98 of the 1996 Act (categories of service for the purposes of Part 4 of that

Act) shall be amended as follows.

(2) In subsection (3), for the words from “television” onwards there shall be substituted “ licence for the purposes of section 363 of the Communications Act 2003 ”.

(3) In subsection (5), for “The Commission” there shall be substituted “ OFCOM ”.

(4) In subsection (6), for “transmission for general reception of television programmes by satellite” there shall be substituted “ broadcasting of television programmes from a satellite so as to be available for reception by members of the public (within the meaning of Part 3 of the Communications Act 2003) ”.

Commencement Information I890 Sch. 15 para. 127 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

128 In sections 101, 101B, 102 and 103 of the 1996 Act (restrictions on, and penalties for, televising listed and designated events), for “The Commission” and “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I891 Sch. 15 para. 128 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

129 (1) Section 104 of the 1996 Act (code of guidance) shall be amended as follows.

(2) For “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In subsection (4)(d), the words “by the Commission” and “by them” shall be omitted.

Commencement Information I892 Sch. 15 para. 129 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

130 In section 104A of the 1996 Act (provision of information about listed and designated events), for “the Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I893 Sch. 15 para. 130 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

131 In section 105(1) of the 1996 Act (interpretation of Part 4 etc.), the definition of “the Commission” shall be omitted.

Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts Document Generated: 2021-03-19

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Commencement Information I894 Sch. 15 para. 131 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Broadcasting standards 132 (1) Part 5 of the 1996 Act (the Broadcasting Standards Commission) shall be amended

as follows.

(2) For “the BSC” and “The BSC”, wherever occurring in any of sections 107, 110, 111, 114, 115, 118 to 121 there shall be substituted “ OFCOM ”.

Commencement Information I895 Sch. 15 para. 132 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

133 In section 107(5)(b) of the 1996 Act (code relating to avoidance of unjust or unfair treatment etc.), for “the service referred to in section 57(1A)(a) of the 1990 Act” there shall be substituted “ any public service of the Welsh Authority (within the meaning of Part 2 of Schedule 12 to the Communications Act 2003) ”.

Commencement Information I896 Sch. 15 para. 133 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

134 In section 115 of the 1996 Act (consideration of fairness complaints) (a) in subsection (2)(d), for “to (c)” there shall be substituted “ or (b) ”; and (b) in subsection (8), for “they shall send a statement of” there shall be

substituted “ OFCOM shall send a copy of ”.

Commencement Information I897 Sch. 15 para. 134 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

135 In section 117 of the 1996 Act (duty of broadcasting body to retain recordings of programmes), for “sections 115 and 116” there shall be substituted “ section 115 ”.

Commencement Information I898 Sch. 15 para. 135 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

136 (1) For subsections (1) and (2) of section 119 of the 1996 Act there shall be substituted—

“(1) Where OFCOM have considered and adjudicated upon a fairness complaint, they may direct the relevant person to publish the matters mentioned in subsection (3) in such manner, and within such period, as may be specified in the directions.”

(2) In that section— (a) in subsection (4), for “subsection (2)” there shall be substituted “

subsection (1) ”;

752 Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts

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(b) in subsection (5), for “(3)(a), (b) or (c)” there shall be substituted “ (3)(a) or (b) ”;

(c) in subsection (6), for “broadcasting or regulatory body” there shall be substituted “ relevant person ” and for “them” there shall be substituted “ him ”;

(d) in subsection (8), the words “or standards complaint” and in paragraph (c) the words “, a regulatory body” shall be omitted;

(e) in subsection (10), for paragraphs (a) and (b) there shall be substituted “ a relevant person ”; and

(f) subsection (12) shall cease to have effect.

(3) After subsection (11) of that section there shall be inserted—

“(11A) In this section “relevant person” means— (a) in a case where the relevant programme was broadcast by a

broadcasting body, that body; and (b) in a case where the relevant programme was included in a licensed

service, the licence holder providing that service.”

Commencement Information I899 Sch. 15 para. 136 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

137 In section 130(1) of the 1996 Act (interpretation of Part 5), for paragraphs (b) and (c) of the definition of “licensed service” there shall be substituted—

“(aa) the public teletext service, (b) any relevant independent radio service (within the meaning of

section 85 of the 1990 Act), (c) any additional service (within the meaning of Part 1 of the 1990 Act)

which is licensed under that Part,”.

Commencement Information I900 Sch. 15 para. 137 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Disqualification on grounds related to political objects 138 (1) Section 143 of the 1996 Act (disqualification on grounds related to political objects)

shall be amended as follows.

(2) In each of subsections (1) and (2)— (a) for “the Independent Television Commission” and “the Commission” there

shall be substituted “ OFCOM ”; and (b) for “section 5(1) of the 1990 Act, or as the case may be section 5(1) of this

Act” there shall be substituted “ section 5(1) or 88(1) of the 1990 Act or section 5(1) or 44(1) of this Act ”.

(3) In subsection (1), for “Part I or II of the 1990 Act or Part I of this Act” there shall be substituted “ Part 1 or 3 of the 1990 Act or Part 1 or 2 of this Act, ”.

Communications Act 2003 (c. 21) SCHEDULE 15 – Amendments of Broadcasting Acts Document Generated: 2021-03-19

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(4) In subsection (2), for “Parts I or II of the 1990 Act or Part I of this Act” there shall be substituted “ Part 1 or 3 of the 1990 Act or Part 1 or 2 of this Act, ”.

(5) Subsections (3) and (4) shall cease to have effect.

(6) In subsection (5), for “to (4)” there shall be substituted “ and (2) ”.

(7) In subsection (6), for paragraphs (a) and (b) there shall be substituted “ the duties imposed on OFCOM by sections 5(1) and 88(1) of the 1990 Act and sections 5(1) and 44(1) of this Act. ”

Commencement Information I901 Sch. 15 para. 138 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Offence of providing false information 139 (1) Section 144 of the 1996 Act (offence of providing false information) shall be

amended as follows.

(2) In subsection (1), for “to the relevant authority a statement”, in each place, there shall be substituted “ a statement to OFCOM ”.

(3) In subsection (2), for “the relevant authority” there shall be substituted “ OFCOM ”.

(4) Subsection (5) shall cease to have effect.

Commencement Information I902 Sch. 15 para. 139 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Disqualification for supplying false information 140 (1) Section 145 of the 1996 Act (disqualification for offence of supplying false

information) shall be amended as follows.

(2) In subsection (5), for “the relevant authority” there shall be substituted “ OFCOM ”.

(3) In subsection (7)— (a) for “5(1)(a) and 88(1)(a)” there shall be substituted “ 5(1)(a) and (2)(db),

32(12) and 88(1)(a) and (2)(db) ”; and (b) for “5(1)(a) and 44(1)(a)” there shall be substituted “ 5(1)(a) and (2)(db) and

44(1)(a) and (2)(db) ”.

(4) In subsection (8) of that section, for the definition of “licence” there shall be substituted—

““licence” means a licence under Part 1 or 3 of the 1990 Act or under Part 1 or 2 of this Act;”.

Commencement Information I903 Sch. 15 para. 140 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

754 Communications Act 2003 (c. 21) SCHEDULE15A – Video-sharing platform services: appropriate measures for the purposes of section

368Z1(1) Document Generated: 2021-03-19

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Interpretation 141 In section 147(1) of the 1996 Act (general interpretation), after the definition of

“the BBC” there shall be inserted—

““OFCOM” means the Office of Communications;”.

Commencement Information I904 Sch. 15 para. 141 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Computation of qualifying revenue 142 (1) Schedule 1 to the 1996 Act (computation of “multiplex revenue” etc.) shall be

amended as follows.

(2) In Part 1, for “the Commission” and “The Commission”, wherever occurring, there shall be substituted “ OFCOM ”.

(3) In Part 2, for “the Authority” and “The Authority”, wherever occurring, there shall be substituted “ OFCOM ”.

Commencement Information I905 Sch. 15 para. 142 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

[F796SCHEDULE 15A Section 368Z1(1)

VIDEO-SHARING PLATFORM SERVICES: APPROPRIATE MEASURES FOR THE PURPOSES OF SECTION 368Z1(1)

Textual Amendments F796 Sch. 15A inserted (1.11.2020) by The Audiovisual Media Services Regulations 2020 (S.I. 2020/1062),

regs. 1(2), 48 (with Pt. 7)

Appropriate measures 1. Paragraphs 2 to 9 set out the measures which it may be appropriate for a person

who provides a video-sharing platform service to take in relation to that service for the purposes mentioned in section 368Z1(1).

2. Include terms and conditions to the effect that if a person uploads to the service a video that contains any restricted material, that person must bring it to the attention of the person who is providing the service.

3. Include terms and conditions to the effect that a person must not upload to the service a video containing relevant harmful material.

4. Include terms and conditions to the effect that—

Communications Act 2003 (c. 21) SCHEDULE15A – Video-sharing platform services: appropriate measures for the purposes of section 368Z1(1) Document Generated: 2021-03-19

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(a) a person must not upload to the service a video containing an audiovisual commercial communication for a product mentioned in section 368Z(2),

(b) a person must not upload to the service a video containing an audiovisual commercial communication for an alcoholic drink unless that communication meets the requirements in section 368Z(3), (4) and (5), and

(c) a person must not upload to the service a video containing an audiovisual commercial communication for anything else unless that communication meets the requirements in section 368Z(4) and (5).

5. Provide functionality for a person uploading a video to the service to declare whether, as far as they know or can reasonably be expected to know, the video contains an audiovisual commercial communication, and include terms and conditions to the effect that a person uploading a video must use the functionality to make such a declaration.

6. Establish and operate— (a) transparent and user-friendly mechanisms for viewers to report or flag

harmful material which is available on the service to the person providing the service;

(b) systems through which the person providing the service explains to persons using the service what effect has been given to the reporting and flagging referred to in sub-paragraph (a);

(c) systems for obtaining assurance as to the age of potential viewers; (d) easy to use systems allowing viewers to rate harmful material.

7. Provide for parental control systems in relation to restricted material. 8. In relation to the implementation of the measures set out in paragraphs 6 and 7,

establish and operate a complaints procedure which must be transparent, easy to use and effective, and must not affect the ability of a person to bring a claim in civil proceedings.

9. Provide information and tools for individuals using the service with the aim of improving their media literacy, and raise awareness of the availability of such information and tools.

Interpretation 10. In this Schedule—

“audiovisual commercial communication” has the meaning given by section 368Z13;

“harmful material” means— (a) relevant harmful material, or (b) restricted material;

“parental control systems” means systems designed to be used by an adult responsible for a person under the age of 18, to control whether or how such persons are able to access videos or audiovisual commercial communications included in a video-sharing platform service;

“relevant harmful material” means— (a) material referred to in section 368E(1), or (b) material referred to in section 368E(3)(za) (read as if the reference to

an on-demand programme service were to a video-sharing platform service);

756 Communications Act 2003 (c. 21) SCHEDULE 16 – Further amendments in connection with media mergers

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“restricted material” means— (a) material which is prohibited material within the meaning of

section 368E by virtue of falling within paragraph (a) or (b) of subsection (3) of that section, or

(b) specially restricted material within the meaning of section 368E (see subsection (5) of that section);

“video” has the meaning given by section 368Z13; “video-sharing platform service” has the meaning given by section 368S.]

SCHEDULE 16 Section 389

FURTHER AMENDMENTS IN CONNECTION WITH MEDIA MERGERS

Competition Act 1980 (c. 21) 1 In section 11C(1) of the Competition Act 1980 (application of section 117 of the

Enterprise Act 2002 (c. 40)) for the words “ “the OFT,”” there shall be substituted “ “the OFT, OFCOM,” ”.

Commencement Information I906 Sch. 16 para. 1 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Gas Act 1986 (c. 44) 2 In section 41EB(4) of the Gas Act 1986 (application of section 117 of the Enterprise

Act 2002) for the words “ “the OFT,”” there shall be substituted “ “the OFT, OFCOM,” ”.

Commencement Information I907 Sch. 16 para. 2 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Electricity Act 1989 (c. 29) 3 In section 56CB(4) of the Electricity Act 1989 (application of section 117 of the

Enterprise Act 2002) for the words “ “the OFT,”” there shall be substituted “ “the OFT, OFCOM,” ”.

Commencement Information I908 Sch. 16 para. 3 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Railways Act 1993 (c. 43) 4 (1) The Railways Act 1993 shall be amended as follows.

Communications Act 2003 (c. 21) SCHEDULE 16 – Further amendments in connection with media mergers Document Generated: 2021-03-19

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(2) In section 13B(4) of that Act (application of section 117 of the Enterprise Act 2002) for the words “ “the OFT,”” there shall be substituted “ “the OFT, OFCOM,” ”.

(3) In section 15C(2G) of that Act (application of section 117 of the Enterprise Act 2002) for the words “ “the OFT,”” there shall be substituted “ “the OFT, OFCOM,” ”.

(4) In Schedule 4A to that Act, in paragraphs 10A(4) and 15(2G) (application of section 117 of the Enterprise Act 2002) for the words “ “the OFT,”” there shall, in both places, be substituted “ “the OFT, OFCOM,” ”.

Commencement Information I909 Sch. 16 para. 4 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F797...

Textual Amendments F797 Sch. 16 para. 5 and crossheading repealed (1.4.2013) by Financial Services Act 2012 (c. 21), s. 122(3),

Sch. 19 (with Sch. 20); S.I. 2013/423, art. 3, Sch.

F7975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commencement Information I910 Sch. 16 para. 5 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Postal Services Act 2000 (c. 26) F7986 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F798 Sch. 16 para. 6 omitted (1.10.2011) by virtue of Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch. 12

para. 69; S.I. 2011/2329, art. 3

Commencement Information I911 Sch. 16 para. 6 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Transport Act 2000 (c. 38) 7 (1) The Transport Act 2000 shall be amended as follows.

(2) In section 12B(4) (application of section 117 of the Enterprise Act 2002 (c. 40)) for the words “ “the OFT,”” there shall be substituted “ “the OFT, OFCOM,” ”.

(3) In section 18(9) (application of section 117 of the Enterprise Act 2002) for the words “ “the OFT,”” there shall be substituted “ “the OFT, OFCOM,” ”.

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Commencement Information I912 Sch. 16 para. 7 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enterprise Act 2002 (c. 40) 8 (1) Section 43 of the Enterprise Act 2002 (intervention notices under section 42) shall

be amended as follows.

(2) In subsection (4)(a) (final determination of matters to which intervention notice relates)—

(a) after the word “OFT” there shall be inserted “ or (if relevant) OFCOM ”; and (b) after the word “44” there shall be inserted “ or (as the case may be) 44A ”.

(3) After subsection (5) there shall be inserted—

“(6) In this Part “OFCOM” means the Office of Communications.”

Commencement Information I913 Sch. 16 para. 8 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

9 In section 45(1)(b) of that Act (circumstances in which the Secretary of State may make a public interest reference to the Competition Commission) after the words “section 44” there shall be inserted “ , and any report of OFCOM which is required by virtue of section 44A, ”.

Commencement Information I914 Sch. 16 para. 9 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

10 After section 50(2) of that Act (reports on references in public interest cases) there shall be inserted—

“(2A) Where the report relates to a reference under section 45 which has been made after a report of OFCOM under section 44A, the Commission shall give a copy of its report (whether or not published) to OFCOM.”

Commencement Information I915 Sch. 16 para. 10 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

11 In section 57(2) of that Act (duty to bring representations to attention of Secretary of State) after the words “the OFT”, in both places where they occur, there shall be inserted “ , OFCOM ”.

Commencement Information I916 Sch. 16 para. 11 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Communications Act 2003 (c. 21) SCHEDULE 16 – Further amendments in connection with media mergers Document Generated: 2021-03-19

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12 In section 58(4)(b) of that Act (retrospective effect of orders modifying specified considerations) after the word “OFT,” there shall be inserted “ OFCOM, ”.

Commencement Information I917 Sch. 16 para. 12 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

13 In section 60(4)(a) of that Act (final determination of matters to which special intervention notice relates)—

(a) after the word “OFT” there shall be inserted “ or (if relevant) OFCOM ”; and

(b) after the word “61” there shall be inserted “ or (as the case may be) 61A ”.

Commencement Information I918 Sch. 16 para. 13 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

14 In section 62(1)(b) of that Act (circumstances in which the Secretary of State may make a special public interest reference to the Competition Commission) after the words “section 61” there shall be inserted “ , and any report of OFCOM which is required by virtue of section 61A, ”.

Commencement Information I919 Sch. 16 para. 14 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

15 After section 65(2) of that Act (reports on references in special public interest cases) there shall be inserted—

“(2A) Where the report relates to a reference under section 62 which has been made after a report of OFCOM under section 61A, the Commission shall give a copy of its report (whether or not published) to OFCOM.”

Commencement Information I920 Sch. 16 para. 15 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

16 In section 67(1)(b) of that Act (intervention to protect legitimate interests)— (a) the words from “which” to “or 33” shall cease to have effect; (b) for the words “that section” there shall be substituted “ section 22 or 33

”; and (c) after the word “concerned” there shall be inserted “ (whether or not there

would otherwise have been a duty to make such a reference) ”.

Commencement Information I921 Sch. 16 para. 16 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

17 In section 68(2)(c) of that Act (scheme for protecting legitimate interests)—

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(a) the words from “which”, where it occurs for the second time, to “or 33” shall cease to have effect; and

(b) for the words “that section” there shall be substituted “ section 22 or 33 (whether or not there would otherwise have been a duty to make such a reference) ”.

Commencement Information I922 Sch. 16 para. 17 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

18 (1) Section 107 of that Act (further publicity requirements) shall be amended as follows.

(2) In subsection (3) (duties of the Secretary of State to publish), after paragraph (b), there shall be inserted—

“(ba) any report of OFCOM under section 44A or 61A which has been received by him;”.

(3) In subsection (9)(a) (publication of reports of OFT in public interest cases) after the words “section 44” there shall be inserted “ , and any report of OFCOM under section 44A, ”.

(4) In subsection (10)(a) (publication of reports of OFT in special public interest cases) after the words “section 61” there shall be inserted “ , and any report of OFCOM under section 61A, ”.

Commencement Information I923 Sch. 16 para. 18 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

19 In section 108 of that Act (defamation) after the words “the OFT,” there shall be inserted “ OFCOM, ”.

Commencement Information I924 Sch. 16 para. 19 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

20 (1) Section 117 of that Act (false or misleading information) shall be amended as follows.

(2) In subsection (1)(a) (offence of supplying false or misleading information to the OFT etc.) after the word “OFT,” there shall be inserted “ OFCOM, ”.

(3) In subsection (2) (offence of supplying false or misleading information to another person for use by OFT etc.) after the word “OFT,” there shall be inserted “ OFCOM, ”.

Commencement Information I925 Sch. 16 para. 20 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

21 In section 118(1) of that Act (excisions from reports) before the word “or” at the end of paragraph (a) there shall be inserted—

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“(aa) a report of OFCOM under section 44A or 61A;”.

Commencement Information I926 Sch. 16 para. 21 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

22 In section 120(1) of that Act (review of decisions under Part 3) after the word “OFT,” there shall be inserted “ OFCOM, ”.

Commencement Information I927 Sch. 16 para. 22 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

23 (1) Section 121 of that Act (fees) shall be amended as follows.

(2) In subsection (1)— (a) after the words “the OFT”, where they occur for the second time, there shall

be inserted “ , OFCOM ”; and (b) the words “, Part V of the Fair Trading Act 1973 (c. 41)” shall cease to have

effect.

(3) In subsection (2)— (a) at the end of paragraph (a) there shall be inserted the word “ or ”; and (b) paragraph (b), and the word “or” at the end of the paragraph, shall cease to

have effect.

(4) In subsection (4)(c)— (a) sub-paragraph (i); (b) the word “and” at the end of the sub-paragraph; and (c) in sub-paragraph (ii), the words “in any other case,”;

shall cease to have effect.

(5) In subsection (8)— (a) after the words “the OFT”, where they occur for the second time, there shall

be inserted “ , OFCOM ”; and (b) the words “, Part V of the Act of 1973” shall cease to have effect.

(6) Subsection (10) shall cease to have effect.

Commencement Information I928 Sch. 16 para. 23 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

24 (1) Section 124 of that Act (orders and regulations under Part 3) shall be amended as follows.

(2) In subsection (3) after the word “34” there shall be inserted “ , 59(6A) ”.

(3) In subsection (4) after the word “40(8),” there shall be inserted “ 44(11), ”.

(4) In subsection (6) after the word “34,” there shall be inserted “ 44(11), 59(6A), ”.

762 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Commencement Information I929 Sch. 16 para. 24 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

25 (1) Section 130 of that Act (index of defined expressions) shall be amended as follows.

(2) After the entry relating to “Anti-competitive outcome” there shall be inserted—

“Broadcasting Section 44(9)”.

(3) After the entry relating to “Market in the United Kingdom” there shall be inserted—

“Media public interest consideration Section 44(8)”.

(4) After the entry for “Modify” there shall be inserted—

“Newspaper Section 44(10) Newspaper enterprise Section 58A(3)”.

(5) After the entry for “Notified arrangements” there shall be inserted—

“OFCOM Section 43(6)”.

Commencement Information I930 Sch. 16 para. 25 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

26 In section 180(2) of that Act (application of section 117 of that Act for the purposes of Part 4 of that Act) after the word “alone” there shall be inserted “ and as if the references to OFCOM were omitted ”.

Commencement Information I931 Sch. 16 para. 26 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

SCHEDULE 17 Section 406

MINOR AND CONSEQUENTIAL AMENDMENTS

Interpretation 1 (1) In any Act or instrument amended by this Schedule—

“communications service” means any of the following services—

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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(a) an electronic communications service; (b) the provision of directory information by means of an electronic

communications network for the purpose of facilitating the use of an electronic communications service provided by means of that network;

(c) the installation, maintenance, adjustment, repair, alteration, moving, removal or replacement of apparatus which is or is to be connected to an electronic communications network;

“electronic communications apparatus” has the same meaning as in the electronic communications code;

“the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of this Act;

“electronic communications code network” means— (a) so much of an electronic communications network or [F799infrastructure

system] provided by an electronic communications code operator as is not excluded from the application of the electronic communications code by a direction under section 106; and

(b) an electronic communications network which the Secretary of State or a Northern Ireland department is providing or proposing to provide;

“electronic communications code operator” means a person in whose case the electronic communications code is applied by a direction under section 106;

“electronic communications network” and “electronic communications service” each has the same meaning as in this Act;

“former PTO” means a person— (a) who is a provider of a public electronic communications network

or a public electronic communications service which, immediately before the date on which the repeal by this Act of section 7 of the Telecommunications Act 1984 (c. 12) comes into force, was designated as a public telecommunication system under section 9 of that Act; and

(b) who, immediately before that date, was authorised to provide that network or service by a licence to which section 8 of that Act applied;

“operator”, in relation to an electronic communications code network, means—

(a) the electronic communications code operator providing that network; or

(b) the Secretary of State or a Northern Ireland department, to the extent that they are providing or proposing to provide that network;

“provide” and cognate expressions, in relation to an electronic communications network, an electronic communications service or associated facilities, are to be construed in accordance with section 32(4) of this Act;

“public electronic communications network” and “public electronic communications service” each has the same meaning as in Chapter 1 of Part 2 of this Act.

(2) In this paragraph— F800(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(b) “electronic communications code”, “electronic communications code network”, “electronic communications code operator”, “public electronic

764 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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communications network” and “public electronic communications service” each has the meaning given in sub-paragraph (1).

[F801(c) “infrastructure system” has the same meaning as in the electronic communications code and references to providing an infrastructure system are to be construed in accordance with paragraph 7 of that code.]

Textual Amendments F799 Words in Sch. 17 para. 1(1) substituted (28.12.2017) by The Communications Act 2003 and the

Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017 (S.I. 2017/1285), reg. 1(1), Sch. 1 para. 8(2)(a)

F800 Sch. 17 para. 1(2)(a) omitted (28.12.2017) by virtue of The Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017 (S.I. 2017/1285), reg. 1(1), Sch. 1 para. 8(2)(b)(i)

F801 Sch. 17 para. 1(2)(c) inserted (28.12.2017) by The Communications Act 2003 and the Digital Economy Act 2017 (Consequential Amendments to Primary Legislation) Regulations 2017 (S.I. 2017/1285), reg. 1(1), Sch. 1 para. 8(2)(b)(ii)

Commencement Information I932 Sch. 17 para. 1 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, art. 2(1), Sch. 1 (with art.

3) (as amended by S.I. 2003/3142, art. 1(3)) I933 Sch. 17 para. 1 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Official Secrets Act 1911 2 For the purposes of the Official Secrets Act 1911 (c. 28), any electronic

communications station or office belonging to, or occupied by, the provider of a public electronic communications service shall be a prohibited place.

Commencement Information I934 Sch. 17 para. 2 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I935 Sch. 17 para. 2 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Law of Property Act 1925 3 [F802In section 194(4) of the Law of Property Act 1925 (c. 20) (exceptions from

restrictions on inclosure of commons), for the words from “telecommunication apparatus” onwards there shall be substituted “ electronic communications apparatus installed for the purposes of an electronic communications code network. ”]

Textual Amendments F802 Sch. 17 para. 3 repealed (E.W.) (1.10.2007 for E., 1.4.2012 for W.) by Commons Act 2006 (c. 26), s. 56,

Sch. 6 Pt. 2 (with s. 60); S.I. 2007/2584, art. 2(d)(ii); S.I. 2012/739, art. 2(h)

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Commencement Information I936 Sch. 17 para. 3 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I937 Sch. 17 para. 3 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Public Health Act 1925 4 In section 10 of the Public Health Act 1925 (c. 71) (Crown application), for the

words from “telecommunication apparatus” to “system” there shall be substituted “ electronic communications apparatus kept installed for the purposes of an electronic communications code network ”.

Commencement Information I938 Sch. 17 para. 4 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I939 Sch. 17 para. 4 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

London Overground Wires, etc Act 1933 5 (1) The London Overground Wires, etc. Act 1933 (c. xliv) shall be amended as follows.

(2) In section 11 (saving for safety regulations), for “any telecommunication apparatus made” there shall be substituted “ any electronic communications apparatus made ”.

(3) In section 14 (savings in respect of telecommunications code system)— (a) for “telecommunication apparatus kept installed for the purposes of a

telecommunications code system” there shall be substituted “ electronic communications apparatus kept installed for the purposes of an electronic communications code network ”;

(b) for the words from “conferred by” onwards there shall be substituted “ conferred by or in accordance with the electronic communications code on the operator of any such network. ”

Commencement Information I940 Sch. 17 para. 5 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I941 Sch. 17 para. 5 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Wireless Telegraphy Act 1949 F8036 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

766 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

F8037 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I942 Sch. 17 para. 7 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

F8038 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

F8039 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I943 Sch. 17 para. 9 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I944 Sch. 17 para. 9 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch.

1 (with art. 11)

F80310 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I945 Sch. 17 para. 10 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I946 Sch. 17 para. 10 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

F80311 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I947 Sch. 17 para. 11 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I948 Sch. 17 para. 11 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch.

1 (with art. 11)

F80312 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I949 Sch. 17 para. 12 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F80313 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I950 Sch. 17 para. 13 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F80314 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

F80315 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I951 Sch. 17 para. 15 in force at 29.12.2003 for specified purposes by S.I. 2003/3142, art. 3(1)(3), Sch. 1

(with art. 11)

768 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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I952 Sch. 17 para. 15 in force at 1.4.2004 in so far as not already in force by S.I. 2003/3142, art. 4(2), Sch. 2 (with art. 11)

F80316 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I953 Sch. 17 para. 16 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I954 Sch. 17 para. 16 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

F80317 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I955 Sch. 17 para. 17 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F80318 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F803 Sch. 17 paras. 6-18 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I956 Sch. 17 para. 18 in force at 18.9.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(2), Sch. 2

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I957 Sch. 17 para. 18 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Coast Protection Act 1949 19 In section 47 of the Coast Protection Act 1949 (c. 74) (savings), in paragraph (b),

for the words from “the telecommunications code” to “system” there shall be substituted “ the electronic communications code on the operator of an electronic communications code network ”.

Commencement Information I958 Sch. 17 para. 19 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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I959 Sch. 17 para. 19 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

National Parks and Access to the Countryside Act 1949 20 (1) The National Parks and Access to the Countryside Act 1949 (c. 97) shall be amended

as follows.

(2) In section 20(2) (byelaws for protection of nature reserves not to interfere with certain rights)—

(a) for “the running of a telecommunications code system” there shall be substituted “ the provision of an electronic communications code network ”;

(b) for “the telecommunications code” there shall be substituted “ the electronic communications code ”;

(c) for “such system” there shall be substituted “ such network ”.

(3) In section 60(5)(f) (exceptions from rights of public where access agreement etc. in force), for “or a telecommunications code system” there shall be substituted “ or an electronic communications code network ”.

Commencement Information I960 Sch. 17 para. 20 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I961 Sch. 17 para. 20 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

London County Council (General Powers) Act 1949 21 In section 7(6) of the London County Council (General Powers) Act 1949 (c. lv)

(interference by works etc. for provision of heat), for “telecommunication apparatus kept installed for the purposes of a telecommunications code system” there shall be substituted “ electronic communications apparatus kept installed for the purposes of an electronic communications code network ”.

Commencement Information I962 Sch. 17 para. 21 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I963 Sch. 17 para. 21 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Local Government (Miscellaneous Provisions) Act 1953 22 (1) Section 6 of the Local Government (Miscellaneous Provisions) Act 1953 (c. 26)

(supplementary provisions as to omnibus shelters etc.) shall be amended as follows.

(2) For “telecommunication apparatus”, wherever occurring, there shall be substituted “ electronic communications apparatus ”.

(3) In subsection (1)—

770 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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(a) for “a telecommunications code system” there shall be substituted “ an electronic communications code network ”;

(b) for “that system” there shall be substituted “ that network ”.

(4) In subsection (2), for “system” there shall be substituted “ network ”.

Commencement Information I964 Sch. 17 para. 22 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I965 Sch. 17 para. 22 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Army Act 1955 F80423 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F804 Sch. 17 para. 23 repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force)

by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Commencement Information I966 Sch. 17 para. 23 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I967 Sch. 17 para. 23 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Air Force Act 1955 F80524 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F805 Sch. 17 para. 24 repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force)

by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Commencement Information I968 Sch. 17 para. 24 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I969 Sch. 17 para. 24 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Lough Neagh and Lower Bann Drainage and Navigation Act (Northern Ireland) 1955 25 In section 17(2) of the Lough Neagh and Lower Bann Drainage and Navigation

Act (Northern Ireland) 1955 (c. 15 (N.I.)) (application of paragraph 23 of telecommunications code)—

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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(a) for “the telecommunications code” there shall be substituted “ the electronic communications code ”;

(b) for “telecommunication apparatus” there shall be substituted “ electronic communications apparatus ”.

Commencement Information I970 Sch. 17 para. 25 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I971 Sch. 17 para. 25 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Naval Discipline Act 1957 26 F806. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F806 Sch. 17 para. 26 repealed (28.3.2009 for specified purposes, 31.10.2009 in so far as not already in force)

by Armed Forces Act 2006 (c. 52), s. 383(2), Sch. 17; S.I. 2009/812, art. 3(a)(b) (with transitional provisions in S.I. 2009/1059); S.I. 2009/1167, art. 4

Commencement Information I972 Sch. 17 para. 26 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I973 Sch. 17 para. 26 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Opencast Coal Act 1958 27 (1) In section 45 of the Opencast Coal Act 1958 (c. 69) (saving for apparatus installed

for the purposes of telecommunications code system)— (a) for “telecommunication apparatus”, wherever occurring, there shall be

substituted “ electronic communications apparatus ”; (b) for “a telecommunications code system”, wherever occurring, there shall be

substituted “ an electronic communications code network ”; (c) for “the telecommunications code”, wherever occurring, there shall be

substituted “ the electronic communications code ”; (d) for “that system” there shall be substituted “ that network ”.

Commencement Information I974 Sch. 17 para. 27 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I975 Sch. 17 para. 27 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

772 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Pipe-lines Act 1962 28 In section 40 of the Pipe-lines Act 1962 (c. 58) (avoidance of interference with

telecommunications code systems)— (a) for “telecommunication apparatus”, in both places, there shall be

substituted “ electronic communications apparatus ”; (b) for “a telecommunications code system” there shall be substituted “ an

electronic communications code network ”; (c) for “such system” there shall be substituted “ such network ”; (d) for “the telecommunications code” there shall be substituted “ the

electronic communications code ”.

Commencement Information I976 Sch. 17 para. 28 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I977 Sch. 17 para. 28 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

London County Council (General Powers) Act 1963 29 In section 17(4)(a) of the London County Council (General Powers) Act

1963 (c. xvii) (interference from provision of illuminations, floodlighting, etc.), for “telecommunication apparatus kept installed for the purposes of a telecommunications code system” there shall be substituted “ electronic communications apparatus kept installed for the purposes of an electronic communications code network ”.

Commencement Information I978 Sch. 17 para. 29 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I979 Sch. 17 para. 29 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Harbours Act 1964 30 In section 53 of the Harbours Act 1964 (c. 40) (application of telecommunications

code for certain works)— (a) for “telecommunications code” there shall be substituted “ electronic

communications code ”; (b) for “telecommunication apparatus” there shall be substituted “ electronic

communications apparatus ”.

Commencement Information I980 Sch. 17 para. 30 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I981 Sch. 17 para. 30 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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New Towns Act (Northern Ireland) 1965 31 (1) Section 25 of the New Towns Act (Northern Ireland) 1965 (c. 13 (N.I.)) shall be

amended as follows.

(2) In subsections (9A), (9C) and (9D)— (a) for “telecommunication apparatus”, wherever occurring, there shall be

substituted “ electronic communications apparatus ”; (b) for “a telecommunications code system” there shall be substituted “ an

electronic communications code network ”; (c) for “that system” there shall be substituted “ that network ”; (d) for “the telecommunications code”, wherever occurring, there shall be

substituted “ the electronic communications code ”.

(3) In subsection (9B) for “any telecommunications code system” there shall be substituted “ any electronic communications code network ”.

Commencement Information I982 Sch. 17 para. 31 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I983 Sch. 17 para. 31 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Marine, &c., Broadcasting (Offences) Act 1967 F80732 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F807 Sch. 17 paras. 32-38 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I984 Sch. 17 para. 32 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

F80733 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F807 Sch. 17 paras. 32-38 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I985 Sch. 17 para. 33 in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2

F80734 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

774 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Textual Amendments F807 Sch. 17 paras. 32-38 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I986 Sch. 17 para. 34 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F80735 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F807 Sch. 17 paras. 32-38 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I987 Sch. 17 para. 35 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F80736 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F807 Sch. 17 paras. 32-38 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I988 Sch. 17 para. 36 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Wireless Telegraphy Act 1967 F80737 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F807 Sch. 17 paras. 32-38 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I989 Sch. 17 para. 37 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I990 Sch. 17 para. 37 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch.

1 (with art. 11)

F80738 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F807 Sch. 17 paras. 32-38 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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Commencement Information I991 Sch. 17 para. 38 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I992 Sch. 17 para. 38 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

F80839 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F808 Sch. 17 para. 39 repealed (25.6.2013) by Enterprise and Regulatory Reform Act 2013 (c. 24), s. 103(2),

Sch. 21 para. 2

Commencement Information I993 Sch. 17 para. 39 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Countryside Act 1968 40 (1) The Countryside Act 1968 (c. 41) shall be amended as follows.

(2) In section 41 (exceptions from powers to make byelaws etc.), in subsections (4) and (12)—

(a) for “the running of a telecommunications code system” there shall be substituted “ the provision of an electronic communications code network ”;

(b) for “the telecommunications code” there shall be substituted “ the electronic communications code ”;

(c) for “such system” there shall be substituted “ such network ”.

(3) In paragraph 6 of Schedule 2 (exceptions from procedure for taking common land)— (a) for “the telecommunications code” there shall be substituted “ the electronic

communications code ”; (b) for “a telecommunications code system” there shall be substituted “ an

electronic communications code network ”.

Commencement Information I994 Sch. 17 para. 40 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I995 Sch. 17 para. 40 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Greater London Council (General Powers) Act 1969 41 In section 7(6) of the Greater London Council (General Powers) Act 1969 (c. lii)

(effect of exercise of power to stop up streets)— (a) for “the telecommunications code” there shall be substituted “ the

electronic communications code ”; (b) for “telecommunications code system” there shall be substituted “

electronic communications code network ”.

776 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Commencement Information I996 Sch. 17 para. 41 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I997 Sch. 17 para. 41 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Harbours Act (Northern Ireland) 1970 42 In section 37 of the Harbours Act (Northern Ireland) 1970 (c. 1 (N.I.)) (application

of telecommunications code for certain works)— (a) for “telecommunications code” there shall be substituted “ electronic

communications code ”; (b) for “telecommunication apparatus” there shall be substituted “ electronic

communications apparatus ”.

Commencement Information I998 Sch. 17 para. 42 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I999 Sch. 17 para. 42 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Thames Barrier and Flood Prevention Act 1972 43 In section 20(1)(a) of the Thames Barrier and Flood Prevention Act 1972 (c. xlv)

(power to make subsidiary works etc.), for “telecommunication installations” there shall be substituted “ electronic communications installations ”.

Commencement Information I1000 Sch. 17 para. 43 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1001 Sch. 17 para. 43 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Fair Trading Act 1973 44 In section 137(3) of the Fair Trading Act 1973 (c. 41) (meaning of “supply of

services”), for paragraph (f) there shall be substituted— “(f) includes the making of arrangements, by means of such an

agreement as is mentioned in paragraph 29 of Schedule 2 to the Telecommunications Act 1984, for the sharing of the use of any electronic communications apparatus, and”.

Commencement Information I1002 Sch. 17 para. 44 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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I1003 Sch. 17 para. 44 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Drainage (Northern Ireland) Order 1973 45 In paragraph 3 of Schedule 9 to the Drainage (Northern Ireland) Order 1973 (S.I.

1973/69 (N.I. 1))— (a) for “telecommunication apparatus”, wherever occurring, there shall be

substituted “ electronic communications apparatus ”; (b) for “a telecommunications code system”, wherever occurring, there shall

be substituted “ an electronic communications code network ”; (c) for “telecommunications code”, wherever occurring (except in the

expression “telecommunications code system”), there shall be substituted “ electronic communications code ”;

(d) for “any such system” and “that system” there shall be substituted, respectively, “ any such network ” and “ that network ”.

Commencement Information I1004 Sch. 17 para. 45 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1005 Sch. 17 para. 45 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Water and Sewerage Services (Northern Ireland) Order 1973 46[F809(1) In Article 57A(3)(b) of the Water and Sewerage Services (Northern Ireland) Order

1973 (S.I. 1973/70 (N.I. 2)) (civil liability of Department for escapes of water)— (a) for “telecommunications code” there shall be substituted “ electronic

communications code ”; (b) for “a telecommunication system” there shall be substituted “ an electronic

communications network ”.

(2) In Article 58(1) of that Order (protection for telegraph and telephone lines), for “telecommunications” there shall be substituted “ electronic communications ”.]

Textual Amendments F809 Sch. 17 para. 46 repealed (N.I.) (1.4.2007) by The Water and Sewerage Services (Northern Ireland) Order

2006 (S.I. 2006/3336), art. 1(2), Sch. 13 (with arts. 8(8), 121(3), 307); S.R. 2007/194, art. 2(2), Sch. Pt. 2 (with Sch. 2)

Commencement Information I1006 Sch. 17 para. 46 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1007 Sch. 17 para. 46 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

778 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Consumer Credit Act 1974 47 In section 16(6) of the Consumer Credit Act 1974 (c. 39) (exempt agreements)

for “public telecommunications operator specified in the order” there shall be substituted “ provider of a public electronic communications service who is specified in the order ”.

Commencement Information I1008 Sch. 17 para. 47 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1009 Sch. 17 para. 47 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

House of Commons Disqualification Act 1975 48 In Part 2 of Schedule 1 to the House of Commons Disqualification Act 1975 (c. 24)

(bodies of which all members are disqualified), in the appropriate place, there shall be inserted— “ Seirbheis nam Meadhanan Gàidhlig ”.

Commencement Information I1010 Sch. 17 para. 48 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Northern Ireland Assembly Disqualification Act 1975 49 In Part 2 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975

(c. 25) (bodies of which all members are disqualified), in the appropriate place, there shall be inserted— “ Seirbheis nam Meadhanan Gàidhlig ”.

Commencement Information I1011 Sch. 17 para. 49 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Welsh Development Agency Act 1975 50 (1) Section 19 of the Welsh Development Agency Act 1975 (c. 70) (the Agency and the

media) shall be amended as follows.

(2) In subsection (9), for “the appropriate authority”, in both places, there shall be substituted “ the Office of Communications ”.

(3) In subsection (11), in the definition of “relevant licence” for “the Independent Television Commission or the Radio Authority” there shall be substituted “ the Office of Communications ”.

Commencement Information I1012 Sch. 17 para. 50 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Building Regulations (Northern Ireland) Order 1979 51 In paragraph 14 of Schedule 1 to the Building Regulations (Northern Ireland) Order

1979 (S.I. 1979/1709 (N.I. 16)) (building regulations), for “telecommunications services” there shall be substituted “ communications services ”.

Commencement Information I1013 Sch. 17 para. 51 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1014 Sch. 17 para. 51 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Local Government, Planning and Land Act 1980 52 (1) Part 3 of Schedule 28 to the Local Government, Planning and Land Act 1980

(c. 65) (provisions about land acquired by urban development corporations) shall be amended as follows.

(2) In paragraphs 5, 6, 13, 14 and 16— (a) for “the telecommunications code”, wherever occurring, there shall be

substituted “ the electronic communications code ”; (b) for “a telecommunications code system” and “any telecommunications code

system”, wherever occurring, there shall be substituted “ an electronic communications code network ”;

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

(d) for “such system” and “the system”, wherever occurring, there shall be substituted, respectively, “ such network ” and “ the network ”.

Commencement Information I1015 Sch. 17 para. 52 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1016 Sch. 17 para. 52 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Highways Act 1980 53 In section 35(11)(c) and (12) of the Highways Act 1980 (c. 66) (regulation of rights

to maintain apparatus on walkways), for “telecommunications code systems” there shall be substituted “ electronic communications code networks ”.

Commencement Information I1017 Sch. 17 para. 53 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1018 Sch. 17 para. 53 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

780 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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54 In section 115D of that Act (limits on powers to restrict access to highways), for paragraph (d) there shall be substituted—

“(d) as to prevent the operator of an electronic communications code network having access to any electronic communications apparatus kept installed for the purposes of that network under, in, on or over the highway.”

Commencement Information I1019 Sch. 17 para. 54 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1020 Sch. 17 para. 54 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

55 In section 142(5) of that Act (protection of telecommunications apparatus by conditions in licences to plant trees etc. in a highway), for “telecommunications code systems” there shall be substituted “ electronic communications code networks ”.

Commencement Information I1021 Sch. 17 para. 55 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1022 Sch. 17 para. 55 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

56 (1) This paragraph applies to the following provisions of that Act— (a) the definition of “statutory undertakers” in section 144(6) (power to erect

flagpoles etc. on highways); (b) the definition of “statutory undertakers” in section 169(4) (control of

scaffolding on highways); (c) the definition of “statutory undertakers” in section 170(3) (control of mixing

mortar etc. on highways); (d) section 177(4) and (12) (licence to build over highway not to interfere with

telecommunications code systems); (e) section 178(5) (exceptions to restriction on placing rails etc. over highways); (f) section 329(4A) (interpretation); (g) section 334 (savings for operators of telecommunications code systems).

(2) In the provisions to which this paragraph applies— (a) for “a telecommunications code system” and “any telecommunications code

system”, wherever occurring, there shall be substituted “ an electronic communications code network ”;

(b) for “the telecommunications code system” there shall be substituted “ the electronic communications code network ”;

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

(d) for “telecommunications code”, wherever occurring (except in the expression “telecommunications code system”), there shall be substituted “ electronic communications code ”;

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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(e) for “system”, wherever occurring (except in the expression “telecommunications code system”), there shall be substituted “ network ”.

Commencement Information I1023 Sch. 17 para. 56 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1024 Sch. 17 para. 56 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

New Towns Act 1981 57 (1) This paragraph applies to the following provisions of the New Towns Act 1981 (c. 64)

— (a) section 16(2) (exception to extinguishment of rights over land compulsorily

acquired); (b) section 19(2) (saving from the power to override certain rights); (c) section 24 (apparatus kept installed for purposes of telecommunications code

system); (d) section 26(8) (extinguishment of rights of way and removal of apparatus); (e) section 39(7) (power of development corporation to transfer undertakings).

(2) In the provisions to which this paragraph applies— (a) for “in accordance with the telecommunications code”, wherever occurring,

there shall be substituted “ in accordance with the electronic communications code ”;

(b) for “a telecommunications code system” and “any telecommunications code system”, wherever occurring, there shall be substituted “ an electronic communications code network ”;

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

(d) for “the running of the telecommunications code system” there shall be substituted “ the provision of the electronic communications code network ”;

(e) for “the running of such a system” there shall be substituted “ the provision of such a network ”;

(f) for “such system” and “the system”, wherever occurring, there shall be substituted, respectively, “ such network ” and “ the network ”.

Commencement Information I1025 Sch. 17 para. 57 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1026 Sch. 17 para. 57 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Acquisition of Land Act 1981 58 (1) The Acquisition of Land Act 1981 (c. 67) shall be amended as follows.

782 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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(2) In section 28 (acquisition of land by the creation of new rights), after paragraph (h) there shall be inserted—

“(i) paragraph 3(3) of Schedule 4 to the Communications Act 2003.”

(3) In section 32(6A) (exception to power to extinguish certain public rights of way)— (a) for the words from “telecommunication apparatus” to “telecommunications

code system” there shall be substituted “ electronic communications apparatus kept installed for the purposes of an electronic communications code network ”; and

(b) in paragraph (a), for “system” there shall be substituted “ network ”.

Commencement Information I1027 Sch. 17 para. 58 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1028 Sch. 17 para. 58 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Housing (Northern Ireland) Order 1981 59 In Article 159A of the Housing (Northern Ireland) Order 1981 (S.I. 1981/156

(N.I. 3)) (application of telecommunications code to the Northern Ireland Housing Executive)—

(a) for “telecommunications code”, wherever occurring, there shall be substituted “ electronic communications code ”;

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

(c) for “a telecommunications code system” there shall be substituted “ an electronic communications code network ”;

(d) for “that system” there shall be substituted “ that network ”.

Commencement Information I1029 Sch. 17 para. 59 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1030 Sch. 17 para. 59 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Civil Aviation Act 1982 60 In section 48(7)(b) of the Civil Aviation Act 1982 (c. 16) (Secretary of State

to give notice of orders stopping up highways for civil aviation purposes), for “a telecommunications code system” there shall be substituted “ an electronic communications code network ”.

Commencement Information I1031 Sch. 17 para. 60 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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I1032 Sch. 17 para. 60 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Representation of the People Act 1983 61 In section 92(1)(c) of the Representation of the People Act 1983 (c. 2) (broadcasting

from outside the United Kingdom), for “the Independent Television Commission or the Radio Authority” there shall be substituted “ the Office of Communications ”.

Commencement Information I1033 Sch. 17 para. 61 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

62 (1) Section 93 of that Act (broadcasting of local items during election period) shall be amended as follows.

(2) In subsection (4), for the words from the beginning to “each” there shall be substituted “ The Office of Communications shall ”.

(3) In subsection (6)— (a) in the definition of “broadcasting authority”, for “the Independent Television

Commission, the Radio Authority” there shall be substituted “ the Office of Communications ”;

(b) in the definition of “relevant services”, for paragraphs (b) and (c) there shall be substituted—

“(b) in relation to the Office of Communications, means services licensed under Part 1 or 3 of the Broadcasting Act 1990 or Part 1 or 2 of the Broadcasting Act 1996.”

Commencement Information I1034 Sch. 17 para. 62 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Telecommunications Act 1984 63 (1) Sections 44 to 46 of the Telecommunications Act 1984 (c. 12) (offences relating to

modification and interception of messages and to assaults on the persons engaged on the business of a telecommunications operator) shall cease to have effect.

(2) No proceedings shall be capable of being begun at any time after the commencement of this paragraph for any offence under any of those sections which was committed before the commencement of this paragraph.

(3) Any proceedings for an offence under any of those sections which have been begun before the commencement of this paragraph but in which there has not yet been a conviction must be discontinued immediately.

Commencement Information I1035 Sch. 17 para. 63 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

784 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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I1036 Sch. 17 para. 63 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

F81064 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F810 Sch. 17 paras. 64-69 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I1037 Sch. 17 para. 64 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F81065 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F810 Sch. 17 paras. 64-69 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I1038 Sch. 17 para. 65 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F81066 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F810 Sch. 17 paras. 64-69 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I1039 Sch. 17 para. 66 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F81067 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F810 Sch. 17 paras. 64-69 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I1040 Sch. 17 para. 67 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F81068 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F810 Sch. 17 paras. 64-69 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Commencement Information I1041 Sch. 17 para. 68 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F81069 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F810 Sch. 17 paras. 64-69 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I1042 Sch. 17 para. 69 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

70 (1) Section 94 of that Act (directions in the interests of national security) shall be amended as follows.

(2) In subsection (1), for “requisite or expedient” there shall be substituted “ necessary ”.

(3) In subsection (2), for “requisite or expedient” there shall be substituted “ necessary ”.

(4) After subsection (2), there shall be inserted—

“(2A) The Secretary of State shall not give a direction under subsection (1) or (2) unless he believes that the conduct required by the direction is proportionate to what is sought to be achieved by that conduct.”

(5) In subsection (3), for “this Act” there shall be substituted “ Part 1 or Chapter 1 of Part 2 of the Communications Act 2003 and, in the case of a direction to a provider of a public electronic communications network, notwithstanding that it relates to him in a capacity other than as the provider of such a network ”.

(6) In subsection (6), for “public telecommunications operators” there shall be substituted “ providers of public electronic communications networks ”.

(7) In subsection (8), for the words from “the Director” onwards there shall be substituted “ OFCOM and to providers of public electronic communications networks. ”

Commencement Information I1043 Sch. 17 para. 70 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1044 Sch. 17 para. 70 in force at 18.9.2003 in so far as not already in force by S.I. 2003/1900, art. 2(2), Sch. 2

71 (1) Section 98 of that Act (use of conduits for telecommunications purposes) shall be amended as follows.

(2) In subsection (1), for the words “telecommunication apparatus”, wherever occurring, there shall be substituted “ electronic communications apparatus ”.

(3) In subsection (5)(a), for the words “telecommunication purposes” there shall be substituted “ the purposes of any electronic communications network or of any electronic communications service ”.

786 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Commencement Information I1045 Sch. 17 para. 71 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1046 Sch. 17 para. 71 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

72 (1) Section 101 of that Act (general restrictions on disclosure of information) shall be amended as follows.

F811(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3) In subsection (2)(a)— (a) the words “or transferred”shall be omitted; and (b) for the words “, the Director or the Commission by or under this Act” there

shall be substituted “ or OFCOM by or under this Act (except functions assigned by or under Part 6) ”.

(4) In subsection (2)(b), after “the Rail Regulator” there shall be inserted “ , OFCOM ”.

(5) In subsection (3), after paragraph (p) there shall be inserted— “(q) the Communications Act 2003 (excluding the provisions of that

Act which are enactments relating to the management of the radio spectrum within the meaning of that Act).”

(6) Subsection (4) shall cease to have effect.

(7) In subsection (6), for “the Director” there shall be substituted “ OFCOM ”.

Textual Amendments F811 Sch. 17 para. 72(2) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt.

1 (with Sch. 8 Pt. 1)

Commencement Information I1047 Sch. 17 para. 72(1)-(3)(5)(6) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2),

2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1048 Sch. 17 para. 72(1)-(3) (5) (6) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142,

art. 3(1), Sch. 1 (with art. 11) I1049 Sch. 17 para. 72(4) (7) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

73 In section 104 of that Act (orders and schemes), after subsection (1) there shall be inserted—

“(1A) Section 403 of the Communications Act 2003 (procedure for regulations and orders made by OFCOM) applies to every power of OFCOM to make an order under a provision of this Act.

(1B) The approval of the Secretary of State is required for the making by OFCOM of an order under section 85 or 86 above.

(1C) A statutory instrument containing an order made by OFCOM under section 85 or 86 above shall be subject to annulment in pursuance of a resolution of either House of Parliament.”

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Commencement Information I1050 Sch. 17 para. 73 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1051 Sch. 17 para. 73 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1), Sch.

1 (with art. 11)

74 In section 106(1) of that Act (general interpretation), after the definition of “modifications” there shall be inserted—

““OFCOM” means the Office of Communications;”.

Commencement Information I1052 Sch. 17 para. 74 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

75 In paragraph 18(2) of Schedule 2 to that Act (notices affixed to overhead apparatus), for “paragraph 24(4)(a)” there shall be substituted “ paragraph 24(2A)(a) ”.

Commencement Information I1053 Sch. 17 para. 75 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1054 Sch. 17 para. 75 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Cinemas Act 1985 76 In section 21(1) of the Cinemas Act 1985 (c. 13) (interpretation), for the definition

of “film exhibition” there shall be substituted—

““film exhibition” means any exhibition of moving pictures other than an exhibition of items included in a programme service (within the meaning of the Communications Act 2003) that is being simultaneously received (or virtually so) by the exhibitor”.

Commencement Information I1055 Sch. 17 para. 76 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Surrogacy Arrangements Act 1985 77 In section 3 of the Surrogacy Arrangements Act 1985 (c. 49) (advertisements about

surrogacy), for “a telecommunication system”, wherever occurring, there shall be substituted “ an electronic communications network ”.

Commencement Information I1056 Sch. 17 para. 77 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

788 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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I1057 Sch. 17 para. 77 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Bankruptcy (Scotland) Act 1985 F81278 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F812 Sch. 17 para. 78 repealed (30.11.2016) by The Bankruptcy (Scotland) Act 2016 (Consequential

Provisions and Modifications) Order 2016 (S.I. 2016/1034), art. 1, Sch. 2 Pt. 1

Commencement Information I1058 Sch. 17 para. 78 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1059 Sch. 17 para. 78 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Housing Act 1985 79 (1) The Housing Act 1985 (c. 68) shall be amended as follows.

(2) In section 295(2)(b) (extinguishment of other rights over land acquired), for “telecommunications systems” there shall be substituted “ electronic communications networks ”.

(3) In section 298(2) and (3) (telecommunications apparatus)— (a) for “telecommunication apparatus”, wherever occurring, there shall be

substituted “ electronic communications apparatus ”; (b) for “a telecommunications code system”, wherever occurring, there shall be

substituted “ an electronic communications code network ”; (c) for “the telecommunications code”, wherever occurring, there shall be

substituted “ the electronic communications code ”; (d) for “the system” and “a system” there shall be substituted, respectively, “ the

network ” and “ a network ”.

Commencement Information I1060 Sch. 17 para. 79 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1061 Sch. 17 para. 79 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Airports Act 1986 80 In section 62 of the Airports Act 1986 (c. 31) (provisions as to telecommunication

apparatus)— (a) for “the telecommunications code”, wherever occurring, there shall be

substituted “ the electronic communications code ”;

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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(b) for “telecommunication apparatus” and “telecommunications apparatus”, wherever occurring, there shall be substituted “ electronic communications apparatus ”;

(c) for “a telecommunications code system”, wherever occurring, there shall be substituted “ an electronic communications code network ”;

(d) in subsection (3), for “that system” there shall be substituted “ that network ”.

Commencement Information I1062 Sch. 17 para. 80 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1063 Sch. 17 para. 80 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Gas Act 1986 81 In section 4AA(4)(b) of the Gas Act 1986 (c. 44) (general duties of Secretary of

State and Authority), for sub-paragraph (i) there shall be substituted— “(i) communications services and electronic communications

apparatus, or”.

Commencement Information I1064 Sch. 17 para. 81 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1065 Sch. 17 para. 81 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Insolvency Act 1986 82 (1) The Insolvency Act 1986 (c. 45) shall be amended as follows.

(2) In section 233 (supplies of telecommunications services etc. in cases of administration or liquidation)—

(a) in subsection (3), for paragraph (d) there shall be substituted— “(d) a supply of communications services by a provider of a

public electronic communications service.”; (b) in subsection (5), for paragraph (d) there shall be substituted—

“(d) “communications services” do not include electronic communications services to the extent that they are used to broadcast or otherwise transmit programme services (within the meaning of the Communications Act 2003).”

(3) In section 372 (supplies of telecommunications services etc. in cases of bankruptcy) —

(a) in subsection (4), for paragraph (d) there shall be substituted— “(d) a supply of communications services by a provider of a

public electronic communications service.”; (b) in subsection (5), for paragraph (c) there shall be substituted—

790 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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“(c) “communications services” do not include electronic communications services to the extent that they are used to broadcast or otherwise transmit programme services (within the meaning of the Communications Act 2003).”

(4) In Schedule 2A (exceptions to prohibition on appointment of administrative receiver), in paragraph 10, after sub-paragraph (2) there shall be inserted—

“(2A) For the purposes of section 72D a business is also regulated to the extent that it consists in the provision of a public electronic communications network or a public electronic communications service.”

Commencement Information I1066 Sch. 17 para. 82 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1067 Sch. 17 para. 82 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Company Directors Disqualification Act 1986 83 In section 9E(2) of the Company Directors Disqualification Act 1986 (c. 46)

(interpretation), for paragraph (a) there shall be substituted— “(a) the Office of Communications;”.

Commencement Information I1068 Sch. 17 para. 83 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Channel Tunnel Act 1987 84 For section 32 of the Channel Tunnel Act 1987 (c. 53), there shall be substituted—

32 Exclusion of rights under electronic communications code 32 32 Exclusion of rights under electronic communications code

No rights shall be exercisable by any person by virtue of the electronic communications code in relation to any land comprised in the tunnel system and lying in or under the bed of the sea.”

Commencement Information I1069 Sch. 17 para. 84 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1070 Sch. 17 para. 84 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

85 In paragraph 3(2)(b) of Schedule 2 to that Act (supplementary provisions as to scheduled works etc.), for “telecommunications” there shall be substituted “ electronic communications ”.

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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Commencement Information I1071 Sch. 17 para. 85 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1072 Sch. 17 para. 85 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

86 (1) Part 10 of Schedule 7 to that Act (protection of telecommunications operators) shall be amended as follows.

(2) In paragraph 1(1), for “a telecommunications operator” there shall be substituted “ an operator of an electronic communications code network ”.

(3) In paragraphs 2 to 7— (a) for “telecommunication apparatus”, wherever occurring, there shall be

substituted “ electronic communications apparatus ”; (b) for “a telecommunications code system”, “a telecommunication system” and

“any telecommunications code system”, wherever occurring, there shall be substituted “ an electronic communications code network ”;

(c) for “that telecommunications system” there shall be substituted “ that network ”;

(d) for “the telecommunications operator”, wherever occurring, there shall be substituted “ the operator ”;

(e) for “any telecommunications operator”, wherever occurring, there shall be substituted “ any operator of an electronic communications code network ”;

(f) for “a system” and “that system”, wherever occurring, there shall be substituted, respectively, “ a network ” and “ that network ”;

(g) for “the system”, wherever occurring, there shall be substituted “ the electronic communications code network ”.

Commencement Information I1073 Sch. 17 para. 86 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1074 Sch. 17 para. 86 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Consumer Protection (Northern Ireland) Order 1987 87 (1) Article 29 of the Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987/2049

(N.I. 20)) (restrictions on disclosure of information) shall be amended as follows.

(2) In paragraph (3), after sub-paragraph (n), there shall be inserted— “(o) the Communications Act 2003.”

(3) In paragraph (6) for “the Director General of Telecommunications” there shall be substituted “ the Office of Communications ”.

792 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Commencement Information I1075 Sch. 17 para. 87 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1076 Sch. 17 para. 87 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Income and Corporation Taxes Act 1988 88 In section 567(2)(b) of the Income and Corporation Taxes Act 1988 (c. 1) (meaning

of “construction operations”), for “telecommunication apparatus” there shall be substituted “ electronic communications apparatus ”.

Commencement Information I1077 Sch. 17 para. 88 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1078 Sch. 17 para. 88 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Norfolk and Suffolk Broads Act 1988 89 In section 25(1) of the Norfolk and Suffolk Broads Act 1988 (c. 4) (interpretation),

in the definition of “statutory undertaker”, for paragraph (d) there shall be substituted—

“(d) any electronic communications code operator;”.

Commencement Information I1079 Sch. 17 para. 89 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1080 Sch. 17 para. 89 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Malicious Communications Act 1988 90 In section 1(2A)(a) of the Malicious Communications Act 1988 (c. 27) (offence

of sending electronic communications with intent to cause distress or anxiety), for “a telecommunication system (within the meaning of the Telecommunications Act 1984)” there shall be substituted “ an electronic communications network ”.

Commencement Information I1081 Sch. 17 para. 90 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1082 Sch. 17 para. 90 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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Copyright, Designs and Patents Act 1988 91 (1) Section 69 of the Copyright, Designs and Patents Act 1988 (c. 48) (no infringement

of copyright by use of recordings for certain supervisory purposes) shall be amended as follows.

(2) In subsection (2)— (a) for paragraph (a) there shall be substituted—

“(a) section 167(1) of the Broadcasting Act 1990, section 115(4) or (6) or 117 of the Broadcasting Act 1996 or paragraph 20 of Schedule 12 to the Communications Act 2003;”;

(b) in paragraph (b), for the words from “by virtue of” to “1990” there shall be substituted “ by virtue of section 334(1) of the Communications Act 2003 ”;

(c) in paragraph (c), for “Radio Authority” there shall be substituted “ OFCOM ”;

(d) after paragraph (c) there shall be inserted— “(d) section 334(3) of the Communications Act 2003.”

(3) For subsection (3) there shall be substituted—

“(3) Copyright is not infringed by the use by OFCOM in connection with the performance of any of their functions under the Broadcasting Act 1990, the Broadcasting Act 1996 or the Communications Act 2003 of—

(a) any recording, script or transcript which is provided to them under or by virtue of any provision of those Acts; or

(b) any existing material which is transferred to them by a scheme made under section 30 of the Communications Act 2003.

(4) In subsection (3), “existing material” means— (a) any recording, script or transcript which was provided to the

Independent Television Commission or the Radio Authority under or by virtue of any provision of the Broadcasting Act 1990 or the Broadcasting Act 1996; and

(b) any recording or transcript which was provided to the Broadcasting Standards Commission under section 115(4) or (6) or 116(5) of the Broadcasting Act 1996.”

Commencement Information I1083 Sch. 17 para. 91 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

92 (1) Section 73 of that Act (no breach of copyright by certain retransmissions of [F813wireless broadcasts by cable] ) shall be amended as follows.

(2) In subsection (6)— (a) for paragraphs (c) and (d) there shall be substituted—

“(c) the public teletext service, (d) S4C Digital, and”;

(b) for the words after paragraph (e) there shall be substituted— “ and expressions used in this subsection have the same meanings as in Part 3 of the Communications Act 2003. ”

794 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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(3) For subsection (7) there shall be substituted—

“(7) In this section “relevant requirement” means a requirement imposed by a general condition (within the meaning of Chapter 1 of Part 2 of the Communications Act 2003) the setting of which is authorised under section 64 of that Act (must-carry obligations).”

Textual Amendments F813 Words in Sch. 17 para. 92(1) substituted (31.10.2003) by virtue of The Copyright and Related Rights

Regulations 2003 (S.I. 2003/2498), reg. 1, Sch. 1 para. 23 (with regs. 31-40)

Commencement Information I1084 Sch. 17 para. 92 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

93 (1) Paragraph 17 of Schedule 2 to that Act (no infringement of performance rights by use of recordings for certain supervisory purposes) shall be amended as follows.

(2) In sub-paragraph (2)— (a) for paragraph (a) there shall be substituted—

“(a) section 167(1) of the Broadcasting Act 1990, section 115(4) or (6) or 117 of the Broadcasting Act 1996 or paragraph 20 of Schedule 12 to the Communications Act 2003;”;

(b) in paragraph (b), for the words from “by virtue of” to “1990” there shall be substituted “ by virtue of section 334(1) of the Communications Act 2003 ”;

(c) in paragraph (c), for “Radio Authority” there shall be substituted “ OFCOM ”;

(d) after paragraph (c) there shall be inserted— “(d) section 334(3) of the Communications Act 2003.”

(3) For sub-paragraph (3) there shall be substituted—

“(3) The rights conferred by Part 2 are not infringed by the use by OFCOM in connection with the performance of any of their functions under the Broadcasting Act 1990, the Broadcasting Act 1996 or the Communications Act 2003 of—

(a) any recording, script or transcript which is provided to them under or by virtue of any provision of those Acts; or

(b) any existing material which is transferred to them by a scheme made under section 30 of the Communications Act 2003.

(4) In subsection (3), “existing material” means— (a) any recording, script or transcript which was provided to the

Independent Television Commission or the Radio Authority under or by virtue of any provision of the Broadcasting Act 1990 or the Broadcasting Act 1996; and

(b) any recording or transcript which was provided to the Broadcasting Standards Commission under section 115(4) or (6) or 116(5) of the Broadcasting Act 1996.”

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Commencement Information I1085 Sch. 17 para. 93 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Housing Act 1988 94 (1) Part 2 of Schedule 10 to the Housing Act 1988 (c. 50) (provisions about land acquired

by a housing action trust) shall be amended as follows.

(2) In paragraphs 4, 5, 11, 12 and 14— (a) for “the telecommunications code”, wherever occurring, there shall be

substituted “ the electronic communications code ”; (b) for “a telecommunications code system” and “any telecommunications code

system”, wherever occurring, there shall be substituted “ an electronic communications code network ”;

(c) for “telecommunications apparatus” and “telecommunication apparatus”, wherever occurring, there shall be substituted “ electronic communications apparatus ”;

(d) for “such system” and “the system”, wherever occurring, there shall be substituted, respectively, “ such network ” and “ the network ”.

Commencement Information I1086 Sch. 17 para. 94 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1087 Sch. 17 para. 94 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Road Traffic Act 1988 95 In section 21(3)(b) of the Road Traffic Act 1988 (c. 52) (exception from prohibition

of driving etc on cycle tracks for statutory undertakers), for the words from “a telecommunications code system” to “1984)” there shall be substituted “ an electronic communications code network ”.

Commencement Information I1088 Sch. 17 para. 95 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1089 Sch. 17 para. 95 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Water Act 1989 96 (1) Section 174 of the Water Act 1989 (c. 15) (general restrictions on disclosure of

information) be amended as follows.

(2) In subsection (2)(d), for sub-paragraph (iv) there shall be substituted— “(iv) the Office of Communications;”.

796 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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(3) In subsection (3), after paragraph (ln) there shall be inserted— “(lo) the Communications Act 2003;”.

Commencement Information I1090 Sch. 17 para. 96 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1091 Sch. 17 para. 96 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Road Traffic (Driver Licensing and Information Systems) Act 1989 97 (1) The Road Traffic (Driver Licensing and Information Systems) Act 1989 (c. 22) shall

be amended as follows.

(2) For section 9(3) (requirement for licence to operate driver information systems) there shall be substituted—

“(3) The holding by a person of a licence under this section 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).”

(3) In paragraph 4 of Schedule 4 (application of telecommunications code to licence holders), for the words “(application of telecommunications code)” there shall be substituted “ (procedure for works involving alteration of electronic communications apparatus) ”.

(4) In paragraph 8 of Schedule 5 (undertakers' works affecting driver information systems)—

(a) in the definition of “relevant undertaker”, for paragraph (b) there shall be substituted—

“(b) any electronic communications code operator;”; (b) in the definition of “undertaker’s works”, in paragraph (b), for “a

telecommunication system run by him” there shall be substituted “ an electronic communications code network provided by him ”.

Commencement Information I1092 Sch. 17 para. 97 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1093 Sch. 17 para. 97 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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Electricity Act 1989 98 In section 3A(4)(b) of the Electricity Act 1989 (c. 29) (general duties of Secretary

of State and Authority), for sub-paragraph (i) there shall be substituted— “(i) communications services and electronic communications

apparatus, or”.

Commencement Information I1094 Sch. 17 para. 98 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1095 Sch. 17 para. 98 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

99 (1) Schedule 4 to that Act (other powers etc. of licence holders) shall be amended as follows.

(2) In paragraphs 3(1)(d) and 5— (a) for “telecommunication apparatus”, wherever occurring, there shall be

substituted “ electronic communications apparatus ”; (b) for “a telecommunication system” there shall be substituted “ an electronic

communications code network ”; and (c) for “telecommunications code”, wherever occurring, there shall be

substituted “ electronic communications code ”.

(3) In paragraph 4(1), for paragraph (c) there shall be substituted— “(c) any electronic communications code operator or any former PTO;

and”.

Commencement Information I1096 Sch. 17 para. 99 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1097 Sch. 17 para. 99 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Local Government and Housing Act 1989 100 In section 88(1)(e)(i) of the Local Government and Housing Act 1989 (c. 42)

(electronic communication), for “a telecommunication system (within the meaning of the Telecommunications Act 1984)” there shall be substituted “ an electronic communications network ”.

Commencement Information I1098 Sch. 17 para. 100 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1099 Sch. 17 para. 100 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

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Insolvency (Northern Ireland) Order 1989 101 (1) The Insolvency (Northern Ireland) Order 1989 (S.I. 1989/2405 (N.I. 19)) shall be

amended as follows.

(2) In Article 197(3) (supplies of water, electricity, etc.) for sub-paragraph (c) to the end there shall be substituted—

“(c) a supply of communications services by a provider of a public electronic communications service,

and in this paragraph “communications services” do not include electronic communications services to the extent that they are used to broadcast or transmit programme services (within the meaning of the Communications Act 2003). ”

(3) In Article 343(4) (supplies of water, electricity, etc.) for sub-paragraph (c) to the end there shall be substituted—

“(c) a supply of communications services by a provider of a public telecommunications service,

and in this paragraph ‘communications services’ do not include electronic communications services to the extent that they are used to broadcast or transmit programme services (within the meaning of the Communications Act 2003). ”

Commencement Information I1100 Sch. 17 para. 101 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1101 Sch. 17 para. 101 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Town and Country Planning Act 1990 102 In section 148(1) of the Town and Country Planning Act 1990 (c. 8)

(interpretation of Chapter 1), in the definition of “statutory undertakers”, for “public telecommunications operators” there shall be substituted “ electronic communications code operators and former PTOs ”.

Commencement Information I1102 Sch. 17 para. 102 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1103 Sch. 17 para. 102 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

103 (1) This paragraph applies to the following provisions of that Act— (a) section 236(2) (exception to extinguishment of rights over land compulsorily

acquired); (b) section 237(3) (saving from power to override certain rights); (c) section 256 (Secretary of State’s orders affecting telecommunications

apparatus); (d) section 260 (orders by other authorities affecting telecommunication

apparatus);

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(e) section 272 (extinguishment of rights of telecommunications code system operators);

(f) section 273(7) and (8) (notices given to developing authority); (g) section 274(2) (making of orders); (h) section 279(3) (right to compensation).

(2) In each of the provisions to which this paragraph applies— (a) for “telecommunications code”, wherever occurring (except in the

expression “telecommunications code system”), there shall be substituted “ electronic communications code ”;

(b) for “a telecommunications code system” and “any telecommunications code system”, wherever occurring, there shall be substituted “ an electronic communications code network ”;

(c) for “telecommunications apparatus” and “telecommunication apparatus”, wherever occurring, there shall be substituted “ electronic communications apparatus ”;

(d) for “the telecommunications code system”, wherever occurring, there shall be substituted “ the electronic communications code network ”;

(e) for “system”, wherever occurring (except in the expression “telecommunications code system”), there shall be substituted “ network ”.

Commencement Information I1104 Sch. 17 para. 103 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1105 Sch. 17 para. 103 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

104 In section 280 of that Act (measures of compensation)— (a) for “a telecommunications code system” there shall be substituted “ an

electronic communications code network ”; (b) for “the running of the telecommunications code system”, wherever

occurring, there shall be substituted “ the provision of the electronic communications code network ”.

Commencement Information I1106 Sch. 17 para. 104 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1107 Sch. 17 para. 104 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

105 In paragraph 1(a) of Schedule 13 to that Act (blighted land), for sub-paragraph (ii) there shall be substituted—

“(ii) of the provision by an electronic communications code operator of an electronic communications code network or the provision by a former PTO of a public electronic communications network or a public electronic communications service, or”.

800 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Commencement Information I1108 Sch. 17 para. 105 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1109 Sch. 17 para. 105 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Planning (Listed Buildings and Conservation Areas) Act 1990 106 (1) The Planning (Listed Buildings and Conservation Areas) Act 1990 (c. 9) shall be

amended as follows.

(2) In section 51(2) (saving for ending of rights over land compulsorily acquired), for paragraphs (b) and (c) there shall be substituted—

“(b) to any right conferred by or in accordance with the electronic communications code on the operator of an electronic communications code network, or

(c) to any electronic communications apparatus kept installed for the purposes of any such network.”

(3) In section 91(3) (meaning of “statutory undertakers” in certain sections), in paragraph (a) for “a public telecommunications operator” there shall be substituted “ an electronic communications code operator and to a former PTO ”.

Commencement Information I1110 Sch. 17 para. 106 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1111 Sch. 17 para. 106 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

London Local Authorities (No. 2) Act 1990 107 (1) Section 5 of the London Local Authorities (No. 2) Act 1990 (c. xxx) (crime

prevention) shall be amended as follows.

(2) For subsection (1)(b) there shall be substituted— “(b) providing within their area an electronic communications service

which is distributed— (i) only to persons on a single set of premises; and

(ii) by an electronic communications network which is wholly within those premises and is not connected to an electronic communications network any part of which is outside those premises;”.

(3) In subsection (1)(c), for “telecommunications system” there shall be substituted “ electronic communications network or electronic communications service ”.

(4) After subsection (4), there shall be inserted—

“(4A) For the purposes of subsection (1)(b)—

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(a) a set of premises is a single set of premises if, and only if, the same person is the occupier of all the premises; and

(b) two or more vehicles are capable of constituting a single set of premises if, and only if, they are coupled together.”

(5) For subsection (5), there shall be substituted—

“(5) In this section—

“premises” includes a vehicle; and

“vehicle” includes a vessel, aircraft or hovercraft.”

Commencement Information I1112 Sch. 17 para. 107 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1113 Sch. 17 para. 107 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

New Roads and Street Works Act 1991 108 (1) In the New Roads and Street Works Act 1991 (c. 22)—

(a) paragraph 7 of Schedule 4 (streets with special engineering difficulties), and (b) paragraph 7 of Schedule 6 (roads with special engineering difficulties),

shall be amended as follows.

(2) For “telecommunication apparatus”, wherever occurring, there shall be substituted “ electronic communications apparatus ”.

(3) In sub-paragraph (3)(c)— (a) for “a telecommunication system” there shall be substituted “ an electronic

communications network ”; and (b) for “a system” there shall be substituted “ a network ”.

Commencement Information I1114 Sch. 17 para. 108 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1115 Sch. 17 para. 108 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Coal Mining Subsidence Act 1991 109 In section 52(1) of the Coal Mining Subsidence Act 1991 (c. 45) (interpretation)

in the definition of “statutory undertakers”, in paragraph (b) for “any public telecommunications operator” there shall be substituted “ any electronic communications code operator, any former PTO ”.

802 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Commencement Information I1116 Sch. 17 para. 109 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1117 Sch. 17 para. 109 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Water Industry Act 1991 110 In section 219 of the Water Industry Act 1991 (c. 56) (general interpretation), in the

definition of “accessories”, for “telecommunication apparatus (within the meaning of Schedule 2 to the Telecommunications Act 1984)” there shall be substituted “ electronic communications apparatus ”.

Commencement Information I1118 Sch. 17 para. 110 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1119 Sch. 17 para. 110 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

111 (1) Schedule 13 to that Act (protective provisions in respect of certain undertakings) shall be amended as follows.

(2) In paragraph 1(5), for paragraph (c) there shall be substituted— “(c) any undertaking consisting in the provision of an electronic

communications network;”.

(3) In paragraph 4, for “telecommunication apparatus” there shall be substituted “ electronic communications apparatus ”.

Commencement Information I1120 Sch. 17 para. 111 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1121 Sch. 17 para. 111 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

112 (1) Schedule 15 to that Act (disclosure of information) shall be amended as follows.

(2) In Part 1, for “The Director General of Telecommunications” there shall be substituted “ The Office of Communications ”.

(3) In Part 2, after the entry relating to the Enterprise Act 2002, there shall be inserted — “ The Communications Act 2003. ”

Commencement Information I1122 Sch. 17 para. 112 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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I1123 Sch. 17 para. 112 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Water Resources Act 1991 113 In section 221 of the Water Resources Act 1991 (c. 57) (general interpretation),

in the definition of “accessories”, for “telecommunication apparatus (within the meaning of Schedule 2 to the Telecommunications Act 1984)” there shall be substituted “ electronic communications apparatus ”.

Commencement Information I1124 Sch. 17 para. 113 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1125 Sch. 17 para. 113 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

114 (1) Schedule 22 to that Act (general provisions protecting undertakings) shall be amended as follows.

(2) In paragraph 1(4), for paragraph (c) there shall be substituted— “(c) any undertaking consisting in the provision of an electronic

communications network;”.

(3) In paragraph 5, for “telecommunication apparatus” there shall be substituted “ electronic communications apparatus ”.

Commencement Information I1126 Sch. 17 para. 114 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1127 Sch. 17 para. 114 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

115 (1) Schedule 24 to that Act (disclosure of information) shall be amended as follows.

(2) In Part 1, for “The Director General of Telecommunications” there shall be substituted “ The Office of Communications ”.

(3) In Part 2, after the entry relating to the Enterprise Act 2002, there shall be inserted — “ The Communications Act 2003. ”

Commencement Information I1128 Sch. 17 para. 115 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1129 Sch. 17 para. 115 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

804 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Land Drainage Act 1991 116 In paragraph 1(1) of Schedule 6 to the Land Drainage Act 1991 (c. 59) (protection

for particular undertakings), for paragraph (c) there shall be substituted— “(c) any undertaking consisting in the provision of an electronic

communications code network;”.

Commencement Information I1130 Sch. 17 para. 116 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1131 Sch. 17 para. 116 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Planning (Northern Ireland) Order 1991 117 In Articles 103 (making of orders) and 104 (telecommunication apparatus) of the

Planning (Northern Ireland) Order 1991 (S.I. 1991/1220 (N.I. 11))— (a) for “telecommunications code”, wherever occurring (except in the

expression “telecommunications code system”) there shall be substituted “ electronic communications code ”;

(b) for “a telecommunications code system” and “any telecommunications code system”, wherever occurring, there shall be substituted “ an electronic communications code network ”;

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

(d) for “system” (except in the expression “telecommunications code system”) there shall be substituted “ network ”.

Commencement Information I1132 Sch. 17 para. 117 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1133 Sch. 17 para. 117 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Charities Act 1992 118 In section 60(6)(c) of the Charities Act 1992 (c. 41) (making of payments to

professional fund-raisers etc.), for “telecommunication apparatus” there shall be substituted “ electronic communications apparatus ”.

Commencement Information I1134 Sch. 17 para. 118 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1135 Sch. 17 para. 118 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

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Carriage of Goods by Sea Act 1992 119 In section 1(5) of the Carriage of Goods by Sea Act 1992 (c. 50), for

“a telecommunication system” there shall be substituted “ an electronic communications network ”.

Commencement Information I1136 Sch. 17 para. 119 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1137 Sch. 17 para. 119 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Electricity (Northern Ireland) Order 1992 120 The Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1)) shall be

amended as follows.

Commencement Information I1138 Sch. 17 para. 120 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1139 Sch. 17 para. 120 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

121 In Article 61 (restrictions on disclosure of information)— (a) for paragraph (2)(b)(vi) there shall be substituted—

“(vi) the Office of Communications;”; (b) after paragraph (3)(u) there shall be inserted—

“(v) the Communications Act 2003;”.

Commencement Information I1140 Sch. 17 para. 121 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1141 Sch. 17 para. 121 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

122 (1) Schedule 4 (other powers etc. of licence holders) shall be amended as follows.

(2) In paragraph 1(1)— (a) for “a public telecommunications operator” there shall be substituted “ an

electronic communications code operator ”; (b) for “telecommunication system” there shall be substituted “ electronic

communications network ”.

(3) In paragraphs 4 and 6 for “public telecommunications operator” there shall be substituted “ electronic communications code operator ”.

(4) In paragraphs 3(1) and (2), 5(1), (2), (3) and (4), 6(1) and 9— (a) for “telecommunication apparatus”, wherever occurring, there shall be

substituted “ electronic communications apparatus ”;

806 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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(b) for “a telecommunication system”, wherever occurring, there shall be substituted “ an electronic communications network ”;

(c) for “telecommunications code”, wherever occurring, there shall be substituted “ electronic communications code ”.

Commencement Information I1142 Sch. 17 para. 122 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1143 Sch. 17 para. 122 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

F814...

Textual Amendments F814 Sch. 17 para. 123 and crossheading repealed (1.12.2008) by Housing and Regeneration Act 2008 (c. 17),

s. 325(1), Sch. 16; S.I. 2008/3068, art. 5, Sch. (with arts. 6-13)

F814123 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Commencement Information I1144 Sch. 17 para. 123 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1145 Sch. 17 para. 123 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Cardiff Bay Barrage Act 1993 124 In Schedule 2 to the Cardiff Bay Barrage Act 1993 (c. 42) (supplementary

provisions about Development Corporation works)— (a) in paragraph 1(c), for “telecommunication” there shall be substituted “

electronic communications ”; (b) in paragraph 16, for “telecommunication apparatus” there shall be

substituted “ electronic communications apparatus ”.

Commencement Information I1146 Sch. 17 para. 124 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1147 Sch. 17 para. 124 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

125 In paragraph 3(2)(c) of Schedule 4 to that Act (exception to extinguishment of rights over land compulsorily acquired)—

(a) for “the telecommunications code” there shall be substituted “ the electronic communications code ”;

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(b) for “a telecommunications code system” there shall be substituted “ an electronic communications code network ”;

(c) for “such system;” there shall be substituted “ such network. ”

Commencement Information I1148 Sch. 17 para. 125 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1149 Sch. 17 para. 125 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

126 In paragraph 21 of Schedule 7 to that Act (powers of survey etc. in connection with groundwater damage)—

(a) in sub-paragraphs (5)(b)(ii) and (7), for “a relevant telecommunications licenceholder” there shall be substituted “ a provider of a public electronic communications network ”;

(b) in sub-paragraphs (6) and (7), for “or licenceholder” there shall be substituted “ or provider ”;

(c) in sub-paragraph (6), for “running of the telecommunication system” there shall be substituted “ provision of the public electronic communications network ”.

Commencement Information I1150 Sch. 17 para. 126 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1151 Sch. 17 para. 126 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Railways Act 1993 127 (1) Section 145 of the Railways Act 1993 (c. 43) (general restrictions on disclosure of

information) be amended as follows.

(2) In subsection (2)(b), for sub-paragraph (iv) there shall be substituted— “(iv) the Office of Communications,”.

(3) In subsection (3), after paragraph (qs) there shall be inserted— “(qt) the Communications Act 2003;”.

Commencement Information I1152 Sch. 17 para. 127 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1153 Sch. 17 para. 127 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

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Roads (Northern Ireland) Order 1993 128 (1) This paragraph applies to the following provisions of the Roads (Northern Ireland)

Order 1993 (S.I. 1993/3160 (N.I. 15))— (a) Article 12(2) (road bridges over railways); (b) Article 70(2) (consultation on exercise of power to erect structure on road); (c) Article 72(2) (control of scaffolding on roads); (d) Article 73(2) (restriction on placing rails etc. over roads); (e) Article 78(2) (excavations in a road); (f) Article 79(2) (placing of apparatus in or under roads); (g) Article 82(3) (excavations near a road); (h) Article 83(2) (alteration of wall, fence or drain at the side of a road); (i) Schedule 9 (savings for telecommunications apparatus).

(2) In each of the provisions to which this paragraph applies— (a) for “a telecommunications code system” and “any telecommunications code

system”, wherever occurring, there shall be substituted “ an electronic communications code network ”;

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

(c) for “telecommunications code”, wherever occurring (except in the expression “telecommunications code system”), there shall be substituted “ electronic communications code ”;

(d) for “that system”, “any such system” and “the system”, wherever occurring, there shall be substituted, respectively, “ that network ”, “ any such network ” and “ the network ”;

(e) for “the telecommunications code system” there shall be substituted “ the electronic communications code network ”.

Commencement Information I1154 Sch. 17 para. 128 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1155 Sch. 17 para. 128 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Value Added Tax Act 1994 129 (1) The Value Added Tax Act 1994 (c. 23) shall be amended as follows.

(2) In section 33 (refunds of VAT in certain cases)— (a) in subsection (3), for paragraph (j) there shall be substituted—

“(j) the appointed news provider referred to in section 280 of the Communications Act 2003; and”;

(b) in subsection (5), for “a nominated” there shall be substituted “ an appointed ”.

(3) In Part 2 of Schedule 9 (exemptions), in Note (1) in Group 12 (fund-raising events by charities etc.), for “a telecommunications system (within the meaning of the Telecommunications Act 1984)” there shall be substituted “ an electronic communications network ”.

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Commencement Information I1156 Sch. 17 para. 129(1)(3) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1),

Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1157 Sch. 17 para. 129(1) (3) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art.

3(1), Sch. 1 (with art. 11) I1158 Sch. 17 para. 129(2) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Criminal Justice and Public Order Act 1994 130 (1) Section 163 of the Criminal Justice and Public Order Act 1994 (c. 33) (local authority

powers to provide closed-circuit television) shall be amended as follows.

(2) For subsection (1)(b) there shall be substituted— “(b) providing within their area an electronic communications service

which is distributed— (i) only to persons on a single set of premises; and

(ii) by an electronic communications network which is wholly within those premises and is not connected to an electronic communications network any part of which is outside those premises;”.

(3) In subsection (1)(c), for “telecommunications system” there shall be substituted “ electronic communications network or electronic communications service ”.

(4) After subsection (3), there shall be inserted—

“(3A) For the purposes of subsection (1)(b)— (a) a set of premises is a single set of premises if, and only if, the same

person is the occupier of all the premises; and (b) two or more vehicles are capable of constituting a single set of

premises if, and only if, they are coupled together.”

(5) In subsection (4), for the definition of “telecommunications system” there shall be substituted—

““premises” includes a vehicle; and

“vehicle” includes a vessel, aircraft or hovercraft.”

Commencement Information I1159 Sch. 17 para. 130 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1160 Sch. 17 para. 130 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Airports (Northern Ireland) Order 1994 131 In Article 12 of the Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1))

(provisions as to telecommunications apparatus)—

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

(b) for “the telecommunications code”, wherever occurring, there shall be substituted “ the electronic communications code ”;

(c) for “a telecommunications code system”, wherever occurring, there shall be substituted “ an electronic communications code network ”;

(d) in paragraph (3), for “that system” there shall be substituted “ that network ”.

Commencement Information I1161 Sch. 17 para. 131 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1162 Sch. 17 para. 131 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Merchant Shipping Act 1995 132 In section 91(7) of the Merchant Shipping Act 1995 (c. 21) (report of dangers to

navigation), in the definition of “controlled station for wireless telegraphy”— (a) after “Secretary of State” there shall be inserted “ or by the Office of

Communications ”; and (b) for “by him” there shall be substituted “ by the Office of Communications ”.

Commencement Information I1163 Sch. 17 para. 132 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Criminal Procedure (Scotland) Act 1995 133 (1) The Criminal Procedure (Scotland) Act 1995 (c. 46) shall be amended as follows.

(2) In section 302(9)(a) (interpretation), at the end there shall be inserted “ nor an offence to which Schedule 6 to the Communications Act 2003 (fixed penalties for wireless telegraphy offences) applies. ”

(3) In Schedule 9 (certificates as to proof of certain routine matters), at the end there shall be inserted—

“The Communications Act 2003 Section 363(1) and (2) (offence of unauthorised installation or use of a television receiver)

A person authorised to do so by the British Broadcasting Corporation

In relation to premises at an address specified in the certificate, whether on a date so specified any television licence (for the purposes of that section) was, in records maintained on behalf of the Corporation in relation to such licences, recorded as being in force; and, if so,

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

particulars so specified of such record of that licence.”

Commencement Information I1164 Sch. 17 para. 133(1) (3) in force at 1.4.2004 by S.I. 2003/3142, art. 4(2), Sch. 2 (with art. 11)

British Waterways Act 1995 134 In section 3(1) of the British Waterways Act 1995 (c. i) (interpretation), in the

definition of “relevant undertaker”, in paragraph (f), for the words from the beginning to “in that Act)” there shall be substituted “ any provider of an electronic communications network having any electronic communications apparatus ”.

Commencement Information I1165 Sch. 17 para. 134 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1166 Sch. 17 para. 134 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Street Works (Northern Ireland) Order 1995 135 (1) Paragraph 7 of Schedule 2 to the Street Works (Northern Ireland) Order 1995 (S.I.

1995/3210 (N.I. 19)) (streets with special engineering difficulties) shall be amended as follows.

(2) For “telecommunication apparatus”, wherever occurring, there shall be substituted “ electronic communications apparatus ”.

(3) In sub-paragraph (3)(c)— (a) for “a telecommunication system” there shall be substituted “ an electronic

communications network ”; (b) for “a system” there shall be substituted “ a network ”.

Commencement Information I1167 Sch. 17 para. 135 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1168 Sch. 17 para. 135 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Housing Act 1996 F815136 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F815 Sch. 17 para. 136 repealed (1.4.2010) by The Housing and Regeneration Act 2008 (Consequential

Provisions) Order 2010 (S.I. 2010/866), art. 1(2), Sch. 4 (with art. 6, Sch. 3)

812 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

Document Generated: 2021-03-19 Status: This version of this Act contains provisions that are prospective.

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content and are referenced with annotations. (See end of Document for details) View outstanding changes

Commencement Information I1169 Sch. 17 para. 136 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1170 Sch. 17 para. 136 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Housing Grants, Construction and Regeneration Act 1996 137 In section 105(1)(b) of the Housing Grants, Construction and Regeneration Act

1996 (c. 53) (meaning of “construction operations”), for “telecommunication apparatus” there shall be substituted “ electronic communications apparatus ”.

Commencement Information I1171 Sch. 17 para. 137 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1172 Sch. 17 para. 137 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Channel Tunnel Rail Link Act 1996 138 In Schedule 6 to the Channel Tunnel Rail Link Act 1996 (c. 61) (planning

conditions), in the table in paragraph 6(4) and the table in paragraph 15(4), for “telecommunications masts”, in each place, there shall be substituted “ electronic communications masts ”.

Commencement Information I1173 Sch. 17 para. 138 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1174 Sch. 17 para. 138 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

139 (1) Part 4 of Schedule 15 to that Act (protection of telecommunications operators) shall be amended as follows.

(2) In paragraph 1(1), for “telecommunications operator” there shall be substituted “ an operator of an electronic communications code network ”.

(3) In paragraphs 2 to 4— (a) for “telecommunications code”, wherever occurring, there shall be

substituted “ electronic communications code ”; (b) for “telecommunications apparatus”, wherever occurring, there shall be

substituted “ electronic communications apparatus ”; (c) for “a telecommunications operator”, wherever occurring, there shall be

substituted “ an operator ”; (d) for “any telecommunications operator”, wherever occurring, there shall be

substituted “ any operator of an electronic communications code network ”; (e) for “the telecommunications operator”, wherever occurring, there shall be

substituted “ the operator ”;

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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(f) for “telecommunications system” there shall be substituted “ electronic communications code network ”.

(4) In paragraph 5— (a) for “telecommunications apparatus”, wherever occurring, there shall be

substituted “ electronic communications apparatus ”; (b) for “telecommunications operator”, in the first place where it occurs, there

shall be substituted “ operator of an electronic communications code network ”;

(c) for “telecommunications operator”, in each other place where it occurs, there shall be substituted “ operator ”.

Commencement Information I1175 Sch. 17 para. 139 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1176 Sch. 17 para. 139 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Gas (Northern Ireland) Order 1996 140 The Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2)) shall be amended

as follows.

Commencement Information I1177 Sch. 17 para. 140 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1178 Sch. 17 para. 140 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

141 In Article 44 (restrictions on disclosure of information)— (a) in paragraph (3)(b), for head (vi) there shall be substituted—

“(vi) the Office of Communications;”; (b) in paragraph (4), after sub-paragraph (v) there shall be inserted—

“(w) the Communications Act 2003.”

Commencement Information I1179 Sch. 17 para. 141 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1180 Sch. 17 para. 141 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

142 (1) Schedule 3 (other powers etc. of licence holders) shall be amended as follows.

(2) In paragraph 1(1)— (a) for “a public telecommunications operator” there shall be substituted “ an

electronic communications code operator ”;

814 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

Document Generated: 2021-03-19 Status: This version of this Act contains provisions that are prospective.

Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Communications Act 2003. Any changes that have already been made by the team appear in the

content and are referenced with annotations. (See end of Document for details) View outstanding changes

(b) for “telecommunication system” there shall be substituted “ electronic communications network ”.

(3) In paragraphs 4 and 6 for “public telecommunications operator” there shall be substituted “ electronic communications code operator ”.

(4) In paragraphs 3(1), (2) and (3), 5(1) and (2), 6(1) and 8— (a) for “telecommunication apparatus”, wherever occurring, there shall be

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

substituted “ an electronic communications network ”; (c) for “telecommunications code”, wherever occurring, there shall be

substituted “ electronic communications code ”.

Commencement Information I1181 Sch. 17 para. 142 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1182 Sch. 17 para. 142 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Construction Contracts (Northern Ireland) Order 1997 143 In Article 4(1)(b) of the Construction Contracts (Northern Ireland) Order 1997 (S.I.

1997/274 (N.I. 1)) (meaning of “construction operations”), for “telecommunication apparatus” there shall be substituted “ electronic communications apparatus ”.

Commencement Information I1183 Sch. 17 para. 143 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1184 Sch. 17 para. 143 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Waste and Contaminated Land (Northern Ireland) Order 1997 144 In Article 2(2) of the Waste and Contaminated Land (Northern Ireland) Order 1997

(S.I. 1997/2778 (N.I. 19)) (meaning of “industrial waste” for “telecommunication services”) there shall be substituted “ communications services ”.

Commencement Information I1185 Sch. 17 para. 144 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1186 Sch. 17 para. 144 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Wireless Telegraphy Act 1998 F816145 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

815

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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Textual Amendments F816 Sch. 17 paras. 145-151 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9

Pt. 1 (with Sch. 8 Pt. 1)

Commencement Information I1187 Sch. 17 para. 145 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F816146 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F816 Sch. 17 paras. 145-151 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9

Pt. 1 (with Sch. 8 Pt. 1)

Commencement Information I1188 Sch. 17 para. 146 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F816147 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F816 Sch. 17 paras. 145-151 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9

Pt. 1 (with Sch. 8 Pt. 1)

Commencement Information I1189 Sch. 17 para. 147 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1190 Sch. 17 para. 147 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1),

Sch. 1 (with art. 11)

F816148 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F816 Sch. 17 paras. 145-151 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9

Pt. 1 (with Sch. 8 Pt. 1)

Commencement Information I1191 Sch. 17 para. 148 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

F816149 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F816 Sch. 17 paras. 145-151 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9

Pt. 1 (with Sch. 8 Pt. 1)

816 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

Document Generated: 2021-03-19 Status: This version of this Act contains provisions that are prospective.

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content and are referenced with annotations. (See end of Document for details) View outstanding changes

Commencement Information I1192 Sch. 17 para. 149 in force at 18.9.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(2), Sch.

2 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1193 Sch. 17 para. 149 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

F816150 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F816 Sch. 17 paras. 145-151 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9

Pt. 1 (with Sch. 8 Pt. 1)

Commencement Information I1194 (as amended by S.I. 2003/3142, art. 1(3)) I1195 Sch. 17 para. 150 in force at 18.9.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(2), Sch.

2 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1196 Sch. 17 para. 150 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(1),

Sch. 1 (with art. 11)

F816151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F816 Sch. 17 paras. 145-151 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9

Pt. 1 (with Sch. 8 Pt. 1)

Commencement Information I1197 Sch. 17 para. 151 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Finance Act 1998 F817152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F817 Sch. 17 para. 152 repealed (with effect in accordance with s. 381(1) of the amending Act) by Taxation

(International and Other Provisions) Act 2010 (c. 8), s. 381(1), Sch. 10 Pt. 12 (with Sch. 9 paras. 1-9, 22)

Commencement Information I1198 Sch. 17 para. 152 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1199 Sch. 17 para. 152 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Competition Act 1998 153 (1) Schedule 7 to the Competition Act 1998 (c. 41) (members of Commission appointed

under certain enactments) shall be amended as follows.

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

817

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

(2) In paragraph 2(1)(d), for sub-paragraph (iii) there shall be substituted— “(iii) section 194(1) of the Communications Act 2003;”.

(3) In paragraph 19A(9), in the definition of “special reference group”, after paragraph (n) there shall be inserted “or

(o) section 193 of the Communications Act 2003.”

Commencement Information I1200 Sch. 17 para. 153 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1201 Sch. 17 para. 153 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

154 In paragraph 1 of Schedule 7A to that Act (procedural rules), in the definition of “special investigation”, for “and (n)” there shall be substituted “ , (n) and (o) ”.

Commencement Information I1202 Sch. 17 para. 154 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1203 Sch. 17 para. 154 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Regional Development Agencies Act 1998 F818155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F818 Sch. 17 para. 155 repealed (1.7.2012 at 0.02 a.m.) by Public Bodies Act 2011 (c. 24), s. 38(3), Sch. 6

(with Sch. 6 Note 1); S.I. 2012/1662, art. 2(2)(b)

Commencement Information I1204 Sch. 17 para. 155 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1205 Sch. 17 para. 155 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Finance Act 1999 156 In section 132(10) of the Finance Act 1999 (c. 16) (power to provide for use of

electronic communications), for “a telecommunication system (within the meaning of the Telecommunications Act 1984)” there shall be substituted “ an electronic communications service ”.

Commencement Information I1206 Sch. 17 para. 156 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3))

818 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

Document Generated: 2021-03-19 Status: This version of this Act contains provisions that are prospective.

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content and are referenced with annotations. (See end of Document for details) View outstanding changes

I1207 Sch. 17 para. 156 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with art. 11)

Greater London Authority Act 1999 157 (1) Section 235 of the Greater London Authority Act 1999 (c. 29) (restrictions on

disclosure of information) shall be amended as follows.

(2) In subsection (2)(c), for sub-paragraph (iv) there shall be substituted— “(iv) the Office of Communications,”.

(3) In subsection (3), after paragraph (rs) there shall be inserted— “(rt) the Communications Act 2003;”.

Commencement Information I1208 Sch. 17 para. 157 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1209 Sch. 17 para. 157 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Electronic Communications Act 2000 158 In section 15(1) of the Electronic Communications Act 2000 (c. 7) (general

interpretation), in the definition of “electronic communication”, for “a telecommunication system (within the meaning of the Telecommunications Act 1984)” there shall be substituted “ an electronic communications network ”.

Commencement Information I1210 Sch. 17 para. 158 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1211 Sch. 17 para. 158 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Television Licences (Disclosure of Information) Act 2000 159 In section 5 of the Television Licences (Disclosure of Information) Act 2000 (c. 15)

(interpretation)— (a) for the definitions of “the BBC” and “television licence” there shall be

substituted—

““the BBC” means the British Broadcasting Corporation;”; (b) after the definition of “prescribed” there shall be inserted—

““television licence” means a licence for the purposes of section 363 of the Communications Act 2003;”.

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

819

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Commencement Information I1212 Sch. 17 para. 159 in force at 1.4.2004 by S.I. 2003/3142, art. 4(2), Sch. 2 (with art. 11)

Finance Act 2000M 160 In paragraph 8 of Schedule 38 to the Finance Act 2000 (c. 17) (regulations for

providing incentives for electronic communications), in the definition of “electronic communications”, for “a telecommunication system (within the meaning of the Telecommunications Act 1984)” there shall be substituted “ an electronic communications service ”.

Commencement Information I1213 Sch. 17 para. 160 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1214 Sch. 17 para. 160 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Regulation of Investigatory Powers Act 2000 161 (1) The Regulation of Investigatory Powers Act 2000 (c. 23) shall be amended as

follows.

(2) In section 26(6)(a) (surveillance carried out for detecting unlicensed TV use), for “section 1 of the Wireless Telegraphy Act 1949)” there shall be substituted “ Part 4 of the Communications Act 2003) ”.

(3) In Part 1 of Schedule 1 (relevant public authorities for the purposes of sections 28 and 29 of that Act), after paragraph 23 there shall be inserted—

23A The Office of Communications.”

Commencement Information I1215 Sch. 17 para. 161(1) (3) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11) I1216 Sch. 17 para. 161(2) in force at 1.4.2004 by S.I. 2003/3142, art. 4(2), Sch. 2 (with art. 11)

Postal Services Act 2000 162 (1) The Postal Services Act 2000 (c. 26) shall be amended as follows.

(2) In section 125(2)(a) (communications delivered otherwise than electronically), for “a telecommunication system (within the meaning of the Telecommunications Act 1984)” there shall be substituted “ an electronic communications network ”.

F819(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

820 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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content and are referenced with annotations. (See end of Document for details) View outstanding changes

Textual Amendments F819 Sch. 17 para. 162(3) omitted (1.10.2011) by virtue of Postal Services Act 2011 (c. 5), s. 93(2)(3), Sch.

12 para. 70; S.I. 2011/2329, art. 3

Commencement Information I1217 Sch. 17 para. 162 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1218 Sch. 17 para. 162 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Utilities Act 2000 163 (1) Section 105 of the Utilities Act 2000 (c. 27) (general restrictions on disclosure of

information) shall be amended as follows.

(2) In subsection (5), for paragraph (d) there shall be substituted— “(d) the Office of Communications;”.

(3) In subsection (6), after paragraph (s) there shall be inserted— “(t) the Communications Act 2003.”

Commencement Information I1219 Sch. 17 para. 163 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1220 Sch. 17 para. 163 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Freedom of Information Act 2000 164 In Part 6 of Schedule 1 to the Freedom of Information Act 2000 (c. 36) (public

authorities), there shall be inserted at the appropriate place—

“The Consumer Panel established under section 16 of the Communications Act 2003.”

Commencement Information I1221 Sch. 17 para. 164 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Countryside and Rights of Way Act 2000 165 (1) The Countryside and Rights of Way Act 2000 (c. 37) shall be amended as follows.

(2) In section 17(4) (byelaws not to interfere with certain rights), for paragraph (c) there shall be substituted—

“(c) with the provision of an electronic communications code network or the exercise of any right conferred by or in accordance with the electronic communications code on the operator of any such network.”

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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(3) In paragraph 8 of Schedule 1 (excepted land), for “a telecommunications code system” there shall be substituted “ an electronic communications code network ”.

Commencement Information I1222 Sch. 17 para. 165 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1223 Sch. 17 para. 165 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Transport Act 2000 166 (1) Paragraph 3 of Schedule 9 to the Transport Act 2000 (c. 38) (air traffic information)

shall be amended as follows.

(2) In sub-paragraph (2), for paragraph (d) there shall be substituted— “(d) the Office of Communications;”.

(3) In sub-paragraph (3)— (a) after paragraph (q) there shall be inserted—

“(qa) the Broadcasting Act 1996;”; (b) after paragraph (ra) there shall be inserted—

“(rb) the Communications Act 2003;”.

Commencement Information I1224 Sch. 17 para. 166(1)(2)(3)(b) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2),

2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1225 Sch. 17 para. 166(1) (2) (3)(b) in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142,

art. 3(1), Sch. 1 (with art. 11) I1226 Sch. 17 para. 166(3)(a) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Political Parties, Elections and Referendums Act 2000 167 (1) The Political Parties, Elections and Referendums Act 2000 (c. 41) shall be amended

as follows.

(2) In section 11(3) (broadcasters to have regard to Electoral Commission’s views on political broadcasts), for the words from “and Sianel” to “regard” there shall be substituted “ shall have regard, in determining its policy with respect to party political broadcasts, ”.

(3) In paragraph 4(6) of Schedule 12 (broadcasters to have regard to Electoral Commission’s views on referendum campaign broadcasts), for the words from “and Sianel” to “regard” there shall be substituted “ shall have regard, in determining its policy with respect to referendum campaign broadcasts by designated organisations, ”.

822 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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content and are referenced with annotations. (See end of Document for details) View outstanding changes

Commencement Information I1227 Sch. 17 para. 167 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Vehicles (Crime) Act 2001 168 In sections [F82016(2)(a),] 31(2)(a) and 40(6) of the Vehicles (Crime) Act 2001

(c. 3) (transmission of representations and service of notices etc.), for “a telecommunication system (within the meaning of the Telecommunications Act 1984 (c. 12))” there shall be substituted “ an electronic communications network ”.

Textual Amendments F820 Word in Sch. 17 para. 168 repealed (E.W.) (1.10.2013) by Scrap Metal Dealers Act 2013 (c. 10), ss. 19(1)

(e), 23(2); S.I. 2013/1966, art. 3(r) (with art. 5)

Commencement Information I1228 Sch. 17 para. 168 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1229 Sch. 17 para. 168 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Criminal Justice and Police Act 2001 169 In the table in section 1(1) of the Criminal Justice and Police Act 2001 (c. 16)

(offences leading to penalties on the spot), after the entry relating to section 12 of that Act there shall be inserted—

“Section 127(2) of the Communications Act 2003

Using public electronic communications network in order to cause annoyance, inconvenience or needless anxiety”.

Commencement Information I1230 Sch. 17 para. 169 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1231 Sch. 17 para. 169 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Electronic Communications Act (Northern Ireland) 2001 170 In section 4(1) of the Electronic Communications Act (Northern Ireland) 2001

(c. 9 (N.I.)) (interpretation), in the definition of “electronic communication”, for “a telecommunication system (within the meaning of the Telecommunications Act 1984)” there shall be substituted “ an electronic communications network ”.

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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Commencement Information I1232 Sch. 17 para. 170 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1233 Sch. 17 para. 170 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Office of Communications Act 2002 171 Sections 2, 4, 5 and 6 of the Office of Communications Act 2002 (c. 11) shall cease

to have effect.

Commencement Information I1234 Sch. 17 para. 171 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

172 (1) The Schedule to that Act shall be amended as follows.

(2) The following shall cease to have effect— (a) paragraph 1(4); (b) paragraph 8(5); (c) paragraph 17(8) and (9); and (d) paragraph 20.

(3) For paragraph 8(1) there shall be substituted—

“(1) It shall be the duty of OFCOM so to conduct their affairs as to secure that their revenues so far as they —

(a) derive from the exercise of powers to impose charges or fees in respect of the carrying out of particular functions, and

(b) do not fall to be paid into the Consolidated Fund of the United Kingdom or of Northern Ireland,

are at least sufficient to enable OFCOM to meet the costs of carrying out the functions to which the revenues relate.”

(4) After paragraph 14(3) (executive committees of OFCOM to include member or employee of OFCOM) there shall be inserted—

“(3A) Sub-paragraph (3) has effect in the case of a committee of OFCOM which— (a) is not the Content Board, but (b) has functions that are confined to functions falling within

section 13(2) of the Communications Act 2003 (functions within the Content Board’s remit),

as if the reference in that sub-paragraph to a member of OFCOM included a reference to a member of the Content Board who is not a member of OFCOM.”

Commencement Information I1235 Sch. 17 para. 172 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

824 Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments

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Tobacco Advertising and Promotion Act 2002 173 (1) Section 12 of the Tobacco Advertising and Promotion Act 2002 (c. 36) (exclusion

from that Act of advertising on television and radio) shall be amended as follows.

(2) For subsection (3) there shall be substituted—

“(3) This subsection applies to — (a) a service falling within section 211(1) of the Communications

Act 2003 (independent television services regulated by the Office of Communications) which is not an additional television service (within the meaning of Part 3 of that Act); and

(b) an additional television service comprised in the public teletext service (within the meaning of that Part).”

(3) For subsection (5) there shall be substituted—

“(5) This subsection applies to a service which— (a) falls within section 245(1) of the Communications Act

2003 (independent radio services regulated by the Office of Communications); but

(b) is not a digital additional sound service (within the meaning of Part 3 of that Act).”

Commencement Information I1236 Sch. 17 para. 173 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Enterprise Act 2002 174 (1) The Enterprise Act 2002 (c. 40) shall be amended as follows.

(2) In section 126(6) (service of documents electronically), for “a telecommunication system (within the meaning of the Telecommunications Act 1984 (c. 12))” there shall be substituted “ an electronic communications network ”.

(3) In section 128(5) (supply of services and market for services etc.), for “section 189(2) of the Broadcasting Act 1990 (c. 42)” there shall be substituted “ paragraph 29 of Schedule 2 to the Telecommunications Act 1984 ”.

(4) In section 136 (investigations and reports on market investigation references)— (a) in subsection (7), after paragraph (g) there shall be inserted—

“(h) in relation to the Office of Communications, sections 370 and 371 of the Communications Act 2003.”;

(b) in subsection (8), for “or the Civil Aviation Authority” there shall be substituted “ , the Civil Aviation Authority or the Office of Communications ”.

(5) In section 168 (regulated markets)— (a) in subsection (3)(e), for “section 39(1) of the Broadcasting Act 1990 (c. 42)”

there shall be substituted “ section 290 of the Communications Act 2003 ”; (b) for subsection (4)(e), there shall be substituted—

Communications Act 2003 (c. 21) SCHEDULE 17 – Minor and Consequential Amendments Document Generated: 2021-03-19

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“(e) in relation to any networking arrangements (within the meaning given by section 290 of the Communications Act 2003), the duty of the Office of Communications under subsection (1) of section 3 of that Act to secure the matters mentioned in subsection (2)(c) of that section;”;

(c) for subsection (5)(g), there shall be substituted— “(g) the Office of Communications;”.

(6) In section 234(5) (supply of services), for “section 189(2) of the Broadcasting Act 1990 (c. 42)” there shall be substituted “ paragraph 29 of Schedule 2 to the Telecommunications Act 1984 ”.

(7) In Schedule 15 (enactments conferring functions), in the appropriate place, there shall be inserted— “ Communications Act 2003. ”

Commencement Information I1237 Sch. 17 para. 174(1)(2)(4)(6)(7) in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2),

2(1), Sch. 1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1238 Sch. 17 para. 174(1) (2) (4) (6) (7) in force at 29.12.2003 in so far as not already in force by S.I.

2003/3142, art. 3(1), Sch. 1 (with art. 11) I1239 Sch. 17 para. 174(3) (5) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Income Tax (Earnings and Pensions) Act 2003 175 (1) The Income Tax (Earnings and Pensions) Act 2003 (c. 1) shall be amended as

follows. F821(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F822(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F821 Sch. 17 para. 175(2) repealed (19.7.2006 with effect in accordance with Sch. 26 Pt. 3(6) Note of the

amending Act) by Finance Act 2006 (c. 25), Sch. 26 Pt. 3(6) F822 Sch. 17 para. 175(3) repealed (19.7.2006 with effect in accordance with Sch. 26 Pt. 3(7) Note of the

amending Act) by Finance Act 2006 (c. 25), Sch. 26 Pt. 3(7)

Commencement Information I1240 Sch. 17 para. 175 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1241 Sch. 17 para. 175 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

826 Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions

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SCHEDULE 18 Section 406

TRANSITIONAL PROVISIONS

General 1 (1) This paragraph applies where, at any time before the coming into force of a transfer

made by virtue of section 2— (a) any subordinate legislation has been made in the carrying out of the

transferred functions by the person from whom the transfer is made; or (b) any other thing has been done by or in relation to that person for the purposes

of or in connection with the carrying out of those functions.

(2) The subordinate legislation or other thing— (a) is to have effect, on and after the coming into force of the transfer, and so far

as necessary for its purposes, as if it had been made or done by or in relation to OFCOM; and

(b) in the case of subordinate legislation to which section 403 applies when it is made by OFCOM, shall so have effect as if made in accordance with the requirements of that section.

(3) Where any subordinate legislation, direction, authorisation or notice has effect in accordance with this paragraph—

(a) so much of it as authorises or requires anything to be done by or in relation to the person from whom the transfer is made is to have effect in relation to times after the coming into force of the transfer as if it authorised or required that thing to be done by or in relation to OFCOM; and

(b) other references in the subordinate legislation, direction, authorisation or notice to the person from whom the transfer is made are to have effect, in relation to such times, as references to OFCOM.

Commencement Information I1242 Sch. 18 para. 1 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1243 Sch. 18 para. 1 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Steps taken in anticipation of passing or coming into force of Act 2 (1) This paragraph applies where the Secretary of State or OFCOM is or are required—

(a) by a provision of this Act, or (b) by virtue of an amendment made by this Act,

to take steps before exercising a power or performing a duty.

(2) The requirement is capable of being satisfied by the taking of the steps in anticipation of effect being given to the provision by virtue of which the power or duty is—

(a) conferred or imposed on the Secretary of State or OFCOM; or (b) transferred to OFCOM.

(3) For the purposes of sub-paragraph (2) it is immaterial—

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(a) that the provision by virtue of which the power or duty is conferred, imposed or transferred had not been enacted, or had not come into force, when the steps were taken; and

(b) in the case of steps taken before the enactment of that provision, that the provision the effect of which was anticipated was modified before being enacted.

(4) In relation to provisions brought into force as mentioned in subsection (1) of section 408 for the purpose of enabling specified functions to be carried out by the Director or the Secretary of State—

(a) this paragraph has effect in relation to steps taken by the Director or the Secretary of State as it has in relation to steps taken by OFCOM; and

(b) subsection (5) of that section applies in relation to steps taken by the Director or the Secretary of State in anticipation of effect being given to those provisions as it would apply to anything done by the Director or the Secretary of State for the purposes of, or in connection with, the carrying out of those functions.

(5) Where a requirement is satisfied by virtue of this paragraph by steps taken in anticipation of effect being given to a provision—

(a) representations made to or other things done in relation to OFCOM, or the Director or the Secretary of State, in consequence of the taking of those steps, and

(b) any requirements framed by reference to the time at which those steps were taken,

are to have effect as if the provision in question had come into force before those steps were taken.

Commencement Information I1244 Sch. 18 para. 2 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1245 Sch. 18 para. 2 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Savings for agreements referring to the termination of a 1984 Act licence 3 (1) This paragraph applies where a term or condition of an agreement in force

immediately before the abolition of licensing provides— (a) for the agreement, or a provision of it, to cease to have effect, (b) for the agreement to become capable of being terminated, (c) for a requirement to pay or repay an amount (whether liquidated or

unliquidated) to arise under the agreement, or to arise earlier than it would otherwise have arisen,

(d) for a security to become enforceable, or (e) for rights or obligations of a person under the agreement to be different or

to be modified, if a person (whether or not a party to the agreement) ceases to hold a licence under section 7 of the 1984 Act, or ceases to do so in a manner or in circumstances described in the agreement.

828 Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions

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(2) Where a person ceases to hold a licence in consequence of the provisions of this Act removing the requirement to hold a licence under section 7 of the 1984 Act—

(a) the term or condition is not to apply; and (b) the rights and obligations of the parties to the agreement are to be the same

(subject to the following sub-paragraphs) as they would have been had the person in question continued to hold such a licence.

(3) In relation to times after the abolition of licensing, that term or condition is to have effect as if the reference in that term or condition—

(a) to a person’s ceasing to hold a licence under section 7 of the 1984 Act, or (b) to his ceasing to do so in a particular manner or particular circumstances,

were a reference to his becoming subject to a direction under this Act by virtue of which he is prohibited from providing the whole or a part of an electronic communications network or electronic communications service.

(4) In sub-paragraph (3) the reference to a person’s becoming subject to a direction by virtue of which he is prohibited from providing the whole or a part of an electronic communications network or electronic communications service—

(a) does not include a reference to his becoming subject to a direction imposing a prohibition for a fixed period of less than eighteen months or to a direction that will have to be revoked if not confirmed; but

(b) except in the case of a direction imposing a prohibition for such a fixed period, does include a reference to the confirmation of a direction that would otherwise have had to be revoked.

(5) This paragraph does not apply in the case of a term or condition of an agreement if, on an application to the court by one or both of the parties to the agreement, the court directs—

(a) that this paragraph is not to apply; or (b) that it is to apply with such modifications, or subject to the payment of such

compensation, as the court may specify in the direction.

(6) In determining whether to give a direction under sub-paragraph (5) or what modifications or compensation to specify in such a direction the court must have regard to the following—

(a) whether either or both of the parties to the agreement contemplated the abolition of the licensing requirements of the 1984 Act when they entered into the agreement; and

(b) the extent (if any) to which the provisions of this paragraph represent what it would have been reasonable for the parties to have agreed had they both known at that time what provision was to be made by this Act and when it was to come into force.

(7) For the purposes of this paragraph— (a) references to ceasing to hold a licence include references to its expiring or

being revoked; and (b) references to a licence under section 7 of the 1984 Act include references to

a licence under that section of a particular description.

(8) In this paragraph “the court” means the High Court or the Court of Session.

(9) This paragraph has effect subject to paragraph 14.

Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions Document Generated: 2021-03-19

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Commencement Information I1246 Sch. 18 para. 3 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1247 Sch. 18 para. 3 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Saving for agreements with special provision for 1984 Act licence holders 4 (1) This paragraph applies in a case to which paragraph 3 does not apply and in which

a term or condition of an agreement in force immediately before the abolition of licensing provides for rights or obligations of a person (“the contracting party”) under the agreement to be different or to be modified according to whether or not he or another person (whether or not a party to the agreement)—

(a) is or has become the holder of a licence under section 7 of the 1984 Act; or (b) is or has become the holder of such a licence in a manner or in circumstances

described in the agreement.

(2) In relation to times after the abolition of licensing, that term or condition is to have effect as if the rights and obligations to which the contracting party is entitled or subject under the agreement were, except in a case falling within sub-paragraph (3), those for which the agreement provides in relation to a case in which the person in question—

(a) is or has become the holder of such a licence; or (b) is or has become the holder of such a licence in that manner or in those

circumstances.

(3) The excepted case is where that person is subject to a direction under this Act by virtue of which he is prohibited from providing the whole or a part of an electronic communications network or electronic communications service.

(4) In sub-paragraph (3) the reference to a person’s being subject to a direction by virtue of which he is prohibited from providing the whole or a part of an electronic communications network or electronic communications service—

(a) does not include a reference to his being subject to a direction imposing a prohibition for a fixed period of less than eighteen months or to a direction that will have to be revoked if not confirmed; but

(b) except in the case of a direction imposing a prohibition for such a fixed period, does include a reference to his being subject to a direction which would have had to be revoked if not confirmed but which has been confirmed.

(5) This paragraph does not apply in the case of a term or condition of an agreement if, on an application to the court by one or both of the parties to the agreement, the court directs—

(a) that this paragraph is not to apply; or (b) that it is to apply with such modifications, or subject to the payment of such

compensation, as the court may specify in the direction.

(6) In determining whether to give a direction under sub-paragraph (5) or what modifications or compensation to specify in such a direction the court must have regard to the following—

830 Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions

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(a) whether either or both of the parties to the agreement contemplated the abolition of the licensing requirements of the 1984 Act when they entered into the agreement; and

(b) the extent (if any) to which the provisions of this paragraph represent what it would have been reasonable for the parties to have agreed had they both known at that time what provision was to be made by this Act and when it was to come into force.

(7) For the purposes of this paragraph references to a licence under section 7 of the 1984 Act include references to a licence under that section of a particular description.

(8) In this paragraph “the court” means the High Court or the Court of Session.

Commencement Information I1248 Sch. 18 para. 4 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1249 Sch. 18 para. 4 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

General saving for agreements conditional on certain Broadcasting Act licences 5 (1) This paragraph has effect where an agreement in force immediately before the

coming into force of a provision of this Act removing a requirement for a relevant Broadcasting Act licence provides—

(a) for the agreement to cease to have effect, or (b) for it to be capable of being terminated,

if a party to the agreement ceases to hold a relevant Broadcasting Act licence of a particular description, or so ceases in a manner described in the agreement.

(2) In this paragraph “relevant Broadcasting Act licence” means— (a) a licence under Part 1 of the 1990 Act to provide a satellite television service

or a licensable programme service; (b) a licence under that Part to provide the service mentioned in section 49(2)

of that Act; (c) a licence under Part 2 of that Act to provide a local delivery service; or (d) a licence under Part 3 of that Act to provide a formerly regulated radio

service (within the meaning of section 251 of this Act).

(3) The agreement is not to cease to have effect, or to be capable of being terminated, by reason only of the coming into force of the provisions of this Act under which the requirement for the licence is removed.

(4) In relation to times after the commencement of the provision of this Act removing the requirement for a licence to provide a satellite television service or a licensable programme service, a reference to such a licence in the provision of the agreement in question is to have effect as a reference to a licence granted or having effect as if granted as a licence to provide a television licensable content service.

(5) In relation to times after the commencement of the provision of this Act removing the requirement for a licence to provide the service mentioned in section 49(2) of the

Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions Document Generated: 2021-03-19

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1990 Act, a reference to such a licence in the provision of the agreement in question is to have effect as a reference to a licence to provide the public teletext service.

(6) In relation to times after the commencement of the provision of this Act removing the requirement for a licence to provide a licensable sound programme service, a reference to such a licence in the provision of the agreement in question is to have effect as a reference to a licence to provide a radio licensable content service.

(7) References in this paragraph to a provision having effect if a person ceases to hold a licence include references—

(a) to a provision having effect if a licence of his expires without being renewed; and

(b) to a provision having effect if his licence is revoked.

(8) Expressions used in this paragraph and in Part 3 of this Act have the same meanings in this paragraph as in that Part.

Commencement Information I1250 Sch. 18 para. 5 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Orders under Part 2 of the Deregulation and Contracting Out Act 1994 F8236 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F823 Sch. 18 para. 6 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1

(with Sch. 8 Pt. 1)

Commencement Information I1251 Sch. 18 para. 6 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Pre-commencement proposals relating to universal service matters 7 (1) Where a proposal for the designation of a person as a universal service provider has

been confirmed under regulation 4(10) of the Electronic Communications (Universal Service) Regulations 2003 (S.I. 2003/33), the designation is to have effect after the commencement of section 66 of this Act as a designation in accordance with regulations under that section.

(2) Where in any person’s case a proposal to set a condition has been confirmed under regulation 4(10) or 5(4) of those regulations, that condition is to have effect after the commencement of that section as a condition set by OFCOM under section 45 of this Act and applied to that person.

(3) Where an appeal under regulation 6 of those regulations against a decision under them has been brought but not concluded before the commencement of section 192 of this Act—

(a) that appeal is to be stayed or sisted as from the commencement of the section; but

832 Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions

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(b) the appellant is to have a new right of appeal under the section against the decision (as it has effect by virtue of this paragraph) as if—

(i) it were the corresponding decision made by OFCOM under Chapter 1 of Part 2 of this Act; and

(ii) it had been made immediately after the commencement of the section.

(4) Tribunal rules (within the meaning of Chapter 3 of Part 2 of this Act) may, in relation to an appeal stayed or sisted under sub-paragraph (3), make transitional provision for requiring steps taken and things done for the purposes of that appeal to be taken into account, to the extent set out in the rules, in the case of an appeal brought by virtue of paragraph (b) of that sub-paragraph.

Commencement Information I1252 Sch. 18 para. 7 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1253 Sch. 18 para. 7 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Local loop notifications 8 (1) This paragraph applies where, as a result of a market power determination made by

OFCOM for the purposes of a provision of Chapter 1 of Part 2 of this Act, they conclude that a person who is for the time being LLU notified is no longer a person falling to be so notified.

(2) OFCOM must give a notification of their conclusion to— (a) the Secretary of State; and (b) the notified person.

(3) On receiving a notification under sub-paragraph (2) the Secretary of State must withdraw the LLU notification of the person in question.

(4) For the purposes of this paragraph a person is LLU notified if he is a person who, for the purposes of Regulation (EC) No. 2887/2000 of the European Parliament and of the Council on unbundled access to the local loop, is notified to the European Commission as having significant market power in an identified market, and “LLU notification” shall be construed accordingly.

(5) Section 192 applies to a decision by OFCOM to give a notification under this paragraph as it applies to a decision by them under Part 2 of this Act.

Commencement Information I1254 Sch. 18 para. 8 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1255 Sch. 18 para. 8 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

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Conditions relating to premium rate services and conditions corresponding to SMP or access-related conditions

9 (1) This paragraph applies where OFCOM give a continuation notice to the holder of a licence granted under section 7 of the 1984 Act.

(2) A continuation notice is a notice that a provision contained in a condition of the licence is to have effect, after the abolition of licensing—

(a) to the extent specified in the notice; and (b) subject to such modifications (if any) as may be so specified.

(3) OFCOM are not to give a continuation notice except to the extent that they consider that provision to which it will give effect, as modified by the notice, (“the continued provision”)—

(a) regulates the provision of premium rate services; or (b) falls within sub-paragraph (4).

(4) The continued provision falls within this sub-paragraph in so far as it corresponds to provision of one or more of the following descriptions—

(a) provision that OFCOM have power to include in SMP conditions; (b) provision authorised by section 73(2) or (4) for inclusion in access-related

conditions; (c) provision relating to matters mentioned in Article 16 of the Universal Service

Directive or Article 7 of the Access Directive.

(5) A continuation notice relating to provision corresponding to anything that OFCOM have power to include in SMP conditions—

(a) may identify the market by reference to which an SMP condition replacing the provision would have to be set; and

(b) in so far as the provision corresponds to anything that OFCOM have power to include only in SMP apparatus conditions, must do so.

(6) OFCOM are not to give a continuation notice relating to provision corresponding to anything that OFCOM have power to include only in SMP apparatus conditions except to the extent that it has effect in relation to the supply of electronic communications apparatus of a description supplied in the market identified in the notice as the market by reference to which SMP conditions replacing the continued provision would have to be set.

(7) The modifications for which a continuation notice may provide— (a) must be confined to modifications for the purpose of securing that the

provision to which they relate continues to have effect for so long as the notice is in force; but

(b) in the case of provision which is expressed to impose a requirement to be met before the abolition of licensing, may include a modification under which that requirement must continue to be met for so long as the notice remains in force.

(8) Notwithstanding any repeal or revocation made by this Act— (a) the continued provision, (b) every provision made by a direction, determination or consent given or made

for the purposes of the continued provision, and

834 Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions

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(c) so far as necessary for giving effect to anything mentioned in paragraph (a) or (b), every provision made by or under the licence under the 1984 Act that is not so mentioned,

are to remain in force for so long as the continuation notice is in force.

(9) A continuation notice shall cease to have effect if OFCOM give a notice to that effect to the holder of the licence.

(10) Where the continued provision is one that OFCOM have power to include only in an SMP apparatus condition, it shall be their duty, as soon as reasonably practicable after giving the continuation notice—

(a) to carry out an analysis of the market which, under sub-paragraph (5), is identified in that notice;

(b) to take all other steps necessary for enabling them to decide whether or not to set an SMP apparatus condition by reference to that market for the purpose of replacing the continued provision; and

(c) to decide whether or not to exercise their power to set such a condition for that purpose.

(11) In the case of every other continued provision falling within sub-paragraph (4), it shall be OFCOM’s duty, as soon as reasonably practicable after giving the continuation notice—

(a) to take all steps necessary for enabling them to decide whether or not to set a condition of any other description under Chapter 1 of Part 2 of this Act for the purpose of replacing the continued provision; and

(b) to decide whether or not to exercise their power to set a condition under that Chapter for that purpose.

(12) It shall be the duty of OFCOM— (a) as soon as reasonably practicable after making a decision required by sub-

paragraph (10) or (11), but (b) in a case where that decision is a decision to set a condition, not before the

coming into force of that condition, to give a notice under sub-paragraph (9) with respect to the continuation notice.

(13) The duties imposed by sub-paragraphs (10) to (12) apply only where OFCOM have not previously given a notice under sub-paragraph (9) with respect to the continuation notice in question.

(14) This paragraph has effect in the case of a licence granted under section 7 of the 1984 Act to persons of a particular class as if—

(a) references to the holder of that licence were references to the members of that class; and

(b) the manner in which a continuation notice or notice under sub-paragraph (9) is to be given to members of that class were by its publication in such manner as, in OFCOM’s opinion, is appropriate for bringing it to the attention of the members of that class who are affected by the notice.

[F824(14A) Sections 185 to 191 apply to a dispute relating to a provision of a kind mentioned in paragraph (4), other than a dispute relating to provision that OFCOM have power to include in SMP apparatus conditions, as they apply to disputes of a kind mentioned in subsections (1A) and (2) of section 185.]

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(15) Section 192 applies to a decision by OFCOM to give a notice under this paragraph as it applies to a decision by them under Part 2 of this Act.

(16) In this paragraph “Access Directive”, “electronic communications apparatus”, “the provision of premium rate services”, “SMP condition”, “SMP apparatus condition” and “Universal Service Directive” each has the same meaning as in Chapter 1 of Part 2 of this Act.

Textual Amendments F824 Sch. 18 para. 9(14A) inserted (26.5.2011) by The Electronic Communications and Wireless Telegraphy

Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 100(a) (with Sch. 3 para. 2)

Commencement Information I1256 Sch. 18 para. 9 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1257 Sch. 18 para. 9 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2) (with

art. 11)

Pre-commencement proposals relating to market power determinations 10 (1) Sub-paragraph (2) has effect where a proposal for—

(a) the identification of a market, (b) the making of a market power determination, or (c) the setting of conditions by reference to a proposal for a market power

determination, has been confirmed under regulation 8 of the Electronic Communications (Market Analysis) Regulations 2003 (S.I. 2003/330).

(2) If, at any time after the commencement of section 45, OFCOM— (a) are satisfied that a procedure has been followed in relation to the proposal

that satisfies the requirements of Article 7 of the Framework Directive, and (b) publish a notification to that effect in such manner as they consider

appropriate for bringing it to the attention of the persons who, in their opinion, are likely to be affected by the proposal,

the proposal (with such modifications, if any, as are specified in the notification) is to have effect, from the publication of the notification, in accordance with sub- paragraph (3).

(3) The proposal is to have effect as follows— (a) in the case of a proposal for identifying a market, as an identification of a

services market in accordance with and for the purposes of section 79 of this Act;

(b) in the case of a proposal for the making of a market power determination, as a market power determination made in accordance with and for the purposes of Chapter 1 of Part 2 of this Act; and

(c) in the case of a proposal for setting conditions, as if the conditions were SMP services conditions set under section 45 of this Act and applied to the same person as the condition in the proposal.

836 Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions

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(4) Where an appeal under regulation 11 of those regulations against a decision under them has been brought but not concluded before the commencement of section 192 of this Act—

(a) that appeal is to be stayed or sisted as from the commencement of the section; but

(b) the appellant is to have a new right of appeal under the section against the decision (as it has effect by virtue of this paragraph) as if—

(i) it were the corresponding decision made by OFCOM under Chapter 1 of Part 2 of this Act; and

(ii) it had been made immediately after the commencement of the section.

(5) Tribunal rules (within the meaning of Chapter 3 of Part 2 of this Act) may, in relation to an appeal stayed or sisted under sub-paragraph (4), make transitional provision for requiring steps taken and things done for the purposes of that appeal to be taken into account, to the extent set out in the rules, in the case of an appeal brought by virtue of paragraph (b) of that sub-paragraph.

(6) Section 192 applies to a decision by OFCOM to publish a notification under this paragraph as it applies to a decision by them under Part 2 of this Act.

(7) In this paragraph “the Framework Directive” has the same meaning as in Chapter 1 of Part 2 of this Act.

Commencement Information I1258 Sch. 18 para. 10 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1259 Sch. 18 para. 10 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Savings for licence conditions relating to accounting 11 (1) This paragraph applies where a licence granted under section 7 of the 1984 Act

contains conditions which impose requirements with respect to— (a) the keeping of accounts or financial information; or (b) the provision of accounts and financial information to the Director.

(2) OFCOM may give a notice to the holder of the licence as respects so much of those conditions as relates to—

(a) the keeping of accounts for a period current at the time of the abolition of licensing; and

(b) the provision of accounts and financial information in relation to any such period or in relation to periods ending before the abolition of licensing.

(3) In the case of a licence granted otherwise than to a particular person, a notice under this paragraph may be given to the licence holders by being published in such manner as OFCOM consider appropriate for bringing it to their attention.

(4) Notwithstanding any repeal or revocation made by this Act—

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(a) the licence under the 1984 Act is to continue in force to the extent that it imposes requirements as respects which a notice has been given under this paragraph; but

(b) those requirements, so far as they require the provision of accounts or information to the Director, are to have effect in relation to times after the abolition of licensing, as requirements to provide the accounts or information to OFCOM.

(5) Section 192 applies to a decision by OFCOM to give a notice under this paragraph as it applies to a decision by them under Part 2 of this Act.

Commencement Information I1260 Sch. 18 para. 11 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1261 Sch. 18 para. 11 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Charges under Telecommunications Act licences 12 (1) Where any amount is required by a licence under section 7 of the 1984 Act to be

paid to the Director in respect of a period beginning before the abolition of licensing, that liability is to have effect after the abolition of licensing as a liability to pay to OFCOM so much of that amount as does not relate to times after the abolition of licensing.

(2) For the purpose of determining how much of an amount payable to the Director relates to times after the abolition of licensing, an apportionment is to be made according to how much of that period had expired before the abolition of licensing.

Commencement Information I1262 Sch. 18 para. 12 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1263 Sch. 18 para. 12 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Enforcement of breaches of licence conditions 13 (1) This paragraph applies to—

(a) any provision to which effect is given, after the abolition of licensing, by a continuation notice under paragraph 9;

(b) conditions in respect of which notices under paragraph 11 have been given; (c) liabilities under paragraph 12; and (d) conditions of a licence under section 7 of the 1984 Act requiring

compliance by the licence holder with directions given by the Director under regulation 6 of the Telecommunications (Interconnection) Regulations 1997 (S.I. 1997/2931).

(2) Notwithstanding any repeal or revocation made by this Act, after the abolition of licensing, OFCOM are, for the purpose of enforcing anything to which this paragraph

838 Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions

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applies, to have all the enforcement powers previously exercisable by the Director under the 1984 Act.

(3) Those powers are to be exercisable in accordance with this paragraph irrespective of whether the contraventions occurred before or after the abolition of licensing.

(4) For the purpose of exercising those powers, references to the likelihood that a person will again be in contravention of a condition include references to whether he will be in contravention of any equivalent obligation imposed—

(a) by section 38 of this Act; (b) by conditions set under section 45 of this Act; or (c) by directions under section 190 of this Act.

(5) OFCOM are not to exercise any powers conferred by virtue of this paragraph if they consider that the exercise of those powers would be incompatible with the requirements of the Directives.

(6) In this paragraph “enforcement powers” includes— (a) the Director’s powers under sections 16 to 18 and 53 of the 1984 Act; and (b) in the case of a licence issued to a particular person, every power of his under

the licence to require information for the purpose of computing the amount of the liability to a charge.

(7) In this paragraph “the Directives” means the Authorisation Directive or any of the following Directives (as defined in Chapter 1 of Part 2 of this Act)—

(a) the Access Directive; (b) the Framework Directive; (c) the Universal Service Directive.

(8) In sub-paragraph (7) “the Authorisation Directive” means Directive 2002/20/EC of the European Parliament and of the Council on the authorisation of electronic communications networks and services [F825, as amended by Directive 2009/140/EC of the European Parliament and of the Council] .

Textual Amendments F825 Words in Sch. 18 para. 13(8) inserted (26.5.2011) by The Electronic Communications and Wireless

Telegraphy Regulations 2011 (S.I. 2011/1210), reg. 1(2), Sch. 1 para. 100(b) (with Sch. 3 para. 2)

Commencement Information I1264 Sch. 18 para. 13 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1265 Sch. 18 para. 13 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Saving for agreements having effect by reference to licensing regime 14 (1) This paragraph has effect where an agreement entered into for the purposes of a

condition of a licence under section 7 of the 1984 Act has effect immediately before the abolition of licensing subject to a provision which entitles a party to it to terminate the agreement if he or another party ceases to be a Schedule 2 public operator.

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(2) The right of termination is not to be exercisable by reason of the effect of the coming into force of any provision of this Act if—

(a) a general condition, (b) an access-related condition, or (c) a provision made by or having effect as if made under an SMP condition,

imposes requirements on one or both of the parties to the agreement that correspond to those for the purposes of which the agreement was originally entered into.

(3) In any such case, the agreement shall have effect in relation to times after the abolition of licensing as if references in the agreement to a Schedule 2 public operator were references to the provider of a public electronic communications network.

(4) In this paragraph “Schedule 2 public operator” has the same meaning as in Schedule 1 to the Telecommunications (Licence Modifications) (Standard Schedules) Regulations 1999 (S.I. 1999/2450).

(5) Expressions used in this paragraph and in Chapter 1 of Part 2 of this Act have the same meanings in this paragraph as in that Chapter.

Commencement Information I1266 Sch. 18 para. 14 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1267 Sch. 18 para. 14 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Fees for approvals for the purposes of licence conditions 15 (1) This paragraph has effect where a general condition set under section 45 of this Act

requires apparatus to be approved by reference to a standard previously designated for the purposes of section 24(6) of the 1984 Act.

(2) The Secretary of State may by order provide for the charging of fees in respect of the giving of approvals for the purposes of the condition.

(3) Fees charged under this paragraph are be paid to the person giving the approvals and, to the extent authorised by the Secretary of State, may be retained by that person.

(4) To the extent that they are not retained by that person, the fees must be paid into the Consolidated Fund.

(5) Any order made under section 24(13) of the 1984 Act that is in force immediately before the coming into force of the repeal of section 24 of that Act shall have effect after the coming into force of the repeal as an order made under this paragraph.

Commencement Information I1268 Sch. 18 para. 15 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1269 Sch. 18 para. 15 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

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Allocated telephone numbers 16 (1) Where immediately before the abolition of licensing telephone numbers are allocated

to a person holding a licence under section 7 of the 1984 Act for the purposes of the conditions of that licence, those numbers shall be treated, after the abolition of licensing as allocated to that person for the purposes of general conditions such as are mentioned in section 58 of this Act.

(2) An allocation having effect by virtue of sub-paragraph (1) may be withdrawn by OFCOM at any time, but only in accordance with section 61 of this Act.

(3) An allocation shall only continue to have effect in accordance with this paragraph for so long as the person to whom the allocation was made for the purposes of the licence conditions is a communications provider.

(4) The power by virtue of section 58 for general conditions to make provision for the making of periodic payments in respect of the allocation of telephone numbers shall be exercisable, at any time after the coming into force of that section, in relation to an allocation having effect by virtue of this paragraph as it has effect in relation to an allocation made under that section.

(5) Expressions used in this paragraph and in Chapter 1 of Part 2 of this Act have the same meanings in this paragraph as in that Chapter.

Commencement Information I1270 Sch. 18 para. 16 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1271 Sch. 18 para. 16 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Electronic communications code 17 (1) Sub-paragraph (2) applies where, immediately before the coming into force of

section 106 of this Act, the telecommunications code set out in Schedule 2 to the 1984 Act applies to a person by virtue of the provisions of his licence under section 7 of that Act.

(2) That person shall be treated after the commencement of section 106 of this Act as a person in whose case the electronic communications code applies by virtue of a direction given by OFCOM.

(3) The deemed direction shall be assumed to be one given in relation to so much of any electronic communications network as—

(a) was included immediately before the commencement of section 106 of this Act in the telecommunication system which was the operator’s system for the purposes of the application of the code; or

(b) which would have been so included if it had been being provided at that time.

(4) So much of the code in Schedule 2 to the 1984 Act as has effect immediately before the commencement of Schedule 3 to this Act—

(a) in relation to telecommunication apparatus, or (b) in relation a telecommunication system,

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is to have effect after the commencement of that Schedule in relation to so much of the apparatus or system as is electronic communications apparatus or the operator’s network for the purposes of the application of that Schedule to this Act by virtue of this paragraph or section 106(3)(b) of this Act.

(5) A right which for the purposes of the code in Schedule 2 to the 1984 Act has effect immediately before the commencement of Schedule 3 to this Act as conferred for purposes connected with the provision of a telecommunication service is to have effect after the commencement of that Schedule as conferred for the purposes of the corresponding electronic communications service.

(6) Any agreement which, immediately before the repeal of the provisions contained in section 10(3A) and (3B) of the 1984 Act or section 189 of the 1990 Act, is a relevant agreement for the purposes of those provisions shall be deemed in relation to times after the coming into force of that repeal to be a relevant agreement for the purposes of paragraph 29 of the electronic communications code.

(7) In this paragraph “the electronic communications code” has the same meaning as in Chapter 1 of Part 2 of this Act.

Commencement Information I1272 Sch. 18 para. 17 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1273 Sch. 18 para. 17 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Saving for guarantees of liabilities of telecommunications code operators 18 (1) This paragraph applies where, immediately before the abolition of licensing, a person

holding a licence under section 7 of the 1984 Act (“the operator”) — (a) is a person to whom the telecommunications code applies in respect of the

running of a telecommunications system by him (“the operator’s system”); and

(b) in pursuance of a condition of his licence imposed for the purpose of securing that sufficient funds are available to meet code-related liabilities specified in the licence, is a party to any guarantee arrangements.

(2) Arrangements are guarantee arrangements for the purposes of this paragraph if they are arrangements under which a person (the “guarantor”) is obliged, in circumstances specified in the arrangements, to make payments in respect of a failure by the operator to meet a code-related liability specified in the licence.

(3) The guarantor’s obligation to make payments under the guarantee arrangements is not to arise by reason only of the abolition of licensing.

(4) In relation to times after the abolition of licensing, the guarantee arrangements are to have effect, notwithstanding the operator’s licence having ceased to have effect on the abolition of licensing and subject to sub-paragraph (7), as if the following references continued to have effect—

(a) references in those arrangements to the code-related liabilities specified in the licence; and

842 Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions

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(b) (subject to sub-paragraph (5)(a)) references, for the purposes of any provision identifying the circumstances in which payments are to be made under the arrangements, to events specified in the licence.

(5) In relation to such times, those arrangements are also to have effect— (a) as if references (directly or indirectly) to the revocation, or to the expiration

without renewal, of the operator’s licence were references to his becoming subject to a direction by virtue of which he is prohibited from providing the whole or a part of his network; and

(b) as if references to the telecommunications code were references to the electronic communications code.

(6) In sub-paragraph (5) the reference to a person’s becoming subject to a direction by virtue of which he is prohibited from providing the whole or a part of an electronic communications network—

(a) does not include a reference to his becoming subject to a direction imposing a prohibition for a fixed period of less than eighteen months or to a direction that will have to be revoked if not confirmed; but

(b) except in the case of a direction imposing a prohibition for such a fixed period, does include a reference to the confirmation of a direction that would otherwise have had to be revoked.

(7) The guarantor is not to be liable in respect of any liability arising in connection with or as a result of activities carried on after the abolition of licensing except in so far as those activities are activities carried on for the purposes of providing the operator’s network.

(8) In this paragraph “code-related liabilities”, in relation to the operator, means liabilities arising or incurred by him—

(a) by reason of the application to him of the telecommunications code; (b) by reason of its ceasing to apply to him; or (c) otherwise in respect of activities carried on by him in connection with

running the operator’s system.

(9) In this paragraph— “the electronic communications code” has the same meaning as in Chapter

1 of Part 2 of this Act; “the operator’s network” means so much of any electronic

communications network provided by the operator as is a network in relation to which the electronic communications code applies in the operator’s case by virtue of paragraph 17(3)(a) of this Schedule;

“the telecommunications code” means the code set out in Schedule 2 to the 1984 Act (as it had effect immediately before the abolition of licensing).

Commencement Information I1274 Sch. 18 para. 18 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1275 Sch. 18 para. 18 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions Document Generated: 2021-03-19

843

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Compulsory purchase 19 Where—

(a) a compulsory purchase order made under section 34 or 35 of the 1984 Act, (b) a vesting order, or an application for a vesting order, made under section 36

of that Act, or (c) an authorisation given by the Secretary of State under section 37, 38 or 39

of that Act, is effective immediately before the commencement of Schedule 4 to this Act, it is to have effect after the commencement of that Schedule as if made or given under that Schedule.

Commencement Information I1276 Sch. 18 para. 19 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1277 Sch. 18 para. 19 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Notices under section 1D of the Wireless Telegraphy Act 1949 F82620 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F826 Sch. 18 para. 20 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1

(with Sch. 8 Pt. 1)

Commencement Information I1278 Sch. 18 para. 20 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Notices under regulations under section 3 of the Wireless Telegraphy Act 1998 F82721 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F827 Sch. 18 para. 21 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1

(with Sch. 8 Pt. 1)

Commencement Information I1279 Sch. 18 para. 21 in force at 18.9.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(2), Sch. 2

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1280 Sch. 18 para. 21 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Disputes about interconnection 22 (1) Where—

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(a) before the revocation by this Act of the Telecommunications (Interconnection) Regulations 1997 (S.I. 1997/2931) a dispute was referred to the Director under regulation 6 of those regulations, and

(b) that dispute has not been resolved when the revocation comes into force, Chapter 3 of Part 2 of this Act (except sections 189 and 190) is to have effect as if that dispute were a dispute which, immediately after the commencement of section 185 of this Act, was referred to OFCOM under that section.

(2) Where a dispute— (a) has arisen or arises about anything occurring or existing before the time when

the revocation of those regulations comes into force (“the relevant time”), (b) relates to matters disputes about which would (before that time) have been

referable to the Director under regulation 6, (c) is neither a dispute which was referred to him before that time nor a dispute

arising after that time which is referable to OFCOM under section 185, and (d) is referred to OFCOM after that time either during the transitional period or

in a case in which OFCOM are satisfied that the circumstances that prevented the making of a reference before the end of that period are exceptional,

sub-paragraph (1) is to have effect as if the dispute were a dispute arising before the relevant time in the case of which a reference to the Director had been made under regulation 6 before that time.

(3) Where OFCOM make a determination for resolving a dispute falling to be resolved in accordance with sub-paragraph (1) or (2)—

(a) their powers on making that determination are to be those which would have been exercisable by the Director under those regulations (instead of those under Chapter 3 of Part 2);

(b) conditions of a licence under section 7 of the 1984 Act requiring compliance with directions given by the Director under regulation 6 of those regulations are to continue to have effect as if they also applied to directions given by OFCOM by virtue of paragraph (a); and

(c) paragraph 13 of this Schedule has effect as if the reference in sub- paragraph (1)(d) to directions given by the Director under that regulation included a reference to directions given by OFCOM by virtue of paragraph (a) of this sub-paragraph.

(4) But OFCOM are not to give a direction by virtue of sub-paragraph (3)(a) containing provision which they would have no power to include in—

(a) a condition set under Chapter 1 of Part 2 of this Act; or (b) a direction under section 190.

(5) Where the Director gave a direction under regulation 6 of those regulations at any time before the coming into force of their revocation, the direction is to continue, after the revocation comes into force, to have effect (and be enforceable in accordance with paragraph 13 of this Schedule) to the extent that it is continued in force under this paragraph.

(6) The direction is continued in force under this paragraph only where OFCOM have at any time after the passing of this Act given notice to the persons to whom it applies that it is continued in force.

Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions Document Generated: 2021-03-19

845

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(7) OFCOM are to give such a notice only if they consider that the direction makes provision corresponding to that which they have power to include in—

(a) conditions set under Chapter 1 of Part 2 of this Act; or (b) directions under section 190.

(8) OFCOM may at any time by notice to the person to whom it applies revoke (in whole or in part) a direction which—

(a) was given by virtue of sub-paragraph (3)(a); or (b) is a direction to which a notice under sub-paragraph (6) relates.

(9) Where a direction which OFCOM have power to revoke under sub-paragraph (8) makes provision corresponding to anything that OFCOM have power to include in a condition set under Chapter 1 of Part 2 of this Act, it shall be their duty, as soon as reasonably practicable after giving the direction or as the case may be the notice under sub-paragraph (6)—

(a) to take all steps necessary for enabling them to decide whether or not to set such a condition for the purpose of replacing the direction; and

(b) to decide whether or not to exercise their power to set a condition under that Chapter for that purpose.

(10) It shall be the duty of OFCOM— (a) as soon as reasonably practicable after making a decision required by sub-

paragraph (9), but (b) in a case where that decision is a decision to set a condition, not before the

coming into force of that condition, to give a notice under sub-paragraph (8) revoking the direction in question.

(11) The duties imposed by sub-paragraphs (9) and (10) apply only where OFCOM have not previously revoked the direction in question.

(12) Section 192 applies to a decision by OFCOM to give a notice under this paragraph as it applies to a decision by them under Part 2 of this Act.

(13) In this paragraph “transitional period” means the period which is the transitional period (within the meaning of section 408) in relation to this paragraph.

Commencement Information I1281 Sch. 18 para. 22 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1282 Sch. 18 para. 22 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Appeals against wireless telegraphy and telecommunications decisions 23 (1) This paragraph applies where—

(a) a decision was made before the commencement of section 192; (b) the decision has effect after the commencement of a provision of this Act as

a decision made by OFCOM, or is a decision not to do something which (if done) would so have had effect; and

846 Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions

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content and are referenced with annotations. (See end of Document for details) View outstanding changes

(c) the decision is one against which an appeal was or could have been brought under—

F828(i) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (ii) section 46B of the 1984 Act.

(2) If no such appeal has been brought before the commencement of section 192 of this Act, that section applies to the decision as it applies to decisions by OFCOM under Part 2 of this Act F829..., but as if that section had been in force when the decision was made.

(3) If an appeal under F830... section 46B of the 1984 Act— (a) has been brought against the decision, but (b) has not been concluded before the commencement of section 192 of this Act,

the court in which it was brought may stay or sist the appeal as from the commencement of that section of this Act.

(4) If the court stays or sists the appeal under sub-paragraph (3), the appellant is to have a new right of appeal under section 192 against the decision as if (subject to sub- paragraph (7)) it were a decision to which that section applies that had been made immediately after the commencement of that section.

(5) Tribunal rules (within the meaning of Chapter 3 of Part 2 of this Act) may, in relation to an appeal stayed or sisted under sub-paragraph (3), make transitional provision—

(a) for requiring steps taken and things done for the purposes of that appeal to be taken into account, to the extent set out in the rules, in the case of an appeal brought by virtue of sub-paragraph (4); and

(b) for enabling the Tribunal in an appeal under sub-paragraph (4) to give directions to OFCOM as to the carrying out of functions of theirs that are the same as or correspond to those in the course of carrying out which the maker of the appealed decision made that decision.

(6) If, in a case falling within sub-paragraph (3), the court does not stay or sist the appeal—

(a) it must determine the appeal in the manner in which the Tribunal is required under section 195 of this Act to determine an appeal under section 192; but

(b) its powers on determining the appeal include a power to give directions to OFCOM as to the carrying out of any functions of theirs that correspond to those in the course of which the appealed decision was made.

(7) On an appeal brought or continued under this paragraph against a decision, the court or the Tribunal, in determining what was the appropriate action for the maker of the decision to take, must determine that question according to the law in force at the time when the decision was made.

Textual Amendments F828 Sch. 18 para. 23(1)(c)(i) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch.

9 Pt. 1 (with Sch. 8 Pt. 1) F829 Words in Sch. 18 para. 23(2) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2),

Sch. 9 Pt. 1 (with Sch. 8 Pt. 1) F830 Words in Sch. 18 para. 23(3) repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2),

Sch. 9 Pt. 1 (with Sch. 8 Pt. 1)

Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions Document Generated: 2021-03-19

847

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

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Commencement Information I1283 Sch. 18 para. 23 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1284 Sch. 18 para. 23 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Section 94 of the Telecommunications Act 1984 F83124 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F831 Sch. 18 para. 24 omitted (5.2.2019) by virtue of Investigatory Powers Act 2016 (c. 25), s. 272(1), Sch.

10 para. 101(3) (with Sch. 9 paras. 7, 8, 10); S.I. 2019/174, reg. 2(p)(v)

Competition Commission: specialist panel members 25 The persons who—

(a) have been appointed as members of the Competition Commission by the Secretary of State under section 13(10) of the 1984 Act, and

(b) hold office immediately before the date on which section 194 comes into force,

shall continue to hold office as members of the Competition Commission as if they had been appointed to that office by the Secretary of State under section 194(1).

Commencement Information I1285 Sch. 18 para. 25 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1286 Sch. 18 para. 25 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Transitory amendments to telecommunications terms in Broadcasting Act 1990 26 (1) This paragraph has effect, in the case of each of the provisions of the 1990 Act to

which it applies, in relation to times between— (a) the commencement of Chapter 1 of Part 2 of this Act; and (b) the commencement of so much of this Act (apart from this paragraph) as

amends or repeals that provision.

(2) The provisions of the 1990 Act set out in sub-paragraph (3) shall have effect (subject to sub-paragraph (4)) as if—

(a) for every reference to a telecommunication system there were substituted a reference to an electronic communications network; and

(b) for references to running such a system there were substituted references to providing it.

(3) Those provisions of the 1990 Act are— (a) section 46 (licensable programme services);

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(b) section 51(1)(a) (procedures for consideration of applications for additional services licences);

(c) section 72 (local delivery services); (d) section 75 (procedures for consideration of applications for local delivery

licences); (e) section 112 (licensable sound programme services); (f) section 117(1)(a) (procedures for consideration of applications for additional

services licences); (g) section 181 (apparatus deemed to be apparatus for wireless telegraphy).

(4) Sections 46(2) (licensable programme services), 112(2) (licensable sound programme services) and 201(2) (programme services) of the 1990 Act shall each have effect as if for paragraph (b) there were substituted—

“(b) a service which satisfies the conditions in section 233(5) of the Communications Act 2003;”.

(5) In sections 48 and 114 of the 1990 Act (additional services), references to electronic signals shall have effect as references to signals within the meaning of section 32 of this Act.

(6) Section 75(2) of the 1990 Act (consultation with relevant licensing authorities) shall have effect as if in paragraph (b) for the words “would be required to be licensed” there were substituted “ is a system which (but for repeals made by the Communications Act 2003) would have been required to be licensed ”.

(7) In section 181 of the 1990 Act (apparatus deemed to be apparatus for wireless telegraphy), “connected”—

(a) shall continue to be construed in accordance (notwithstanding its repeal) with section 4 of the 1984 Act; but

(b) shall be so construed as if, in that section of the 1984 Act, a reference to an electronic communications network were substituted for every reference to a telecommunication system.

(8) Part 5 of Schedule 2 to the 1990 Act (restriction on holding of licences by operators of public telecommunication systems) and the Broadcasting (Restrictions on the Holding of Licences) Order 1991 (S.I. 1991/1176) shall have effect as if references to a national public telecommunications operator were references to a person who provides an electronic communications network so as to make it available for use by members of the public in the whole, or substantially the whole, of the United Kingdom.

Commencement Information I1287 Sch. 18 para. 26 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1288 Sch. 18 para. 26 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Communications Act 2003 (c. 21) SCHEDULE 18 – Transitional Provisions Document Generated: 2021-03-19

849

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Activities of the Welsh Authority 27 (1) No approval shall be required under section 205 for the continued provision after the

commencement of that section of any service that was being provided by the Welsh Authority immediately before the commencement of that section.

(2) Where any activities are being carried on immediately before the commencement of section 206 by the Welsh Authority, no approval is required under that section in respect of the continued carrying on of the activities by the Authority.

(3) Where any activities are being carried on immediately before the commencement of section 206 by an S4C company, no approval is required under that section in respect of the carrying on after that commencement by that company or another S4C company of those activities.

Commencement Information I1289 Sch. 18 para. 27 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Gaelic Broadcasting 28 The persons who are members of Comataidh Craolaidh Gaidhlig immediately

before the date on which section 208 comes into force— (a) shall continue to hold office as members of Seirbheis nam Meadhanan

Gàidhlig as if they had been appointed to that office by OFCOM; (b) shall hold and vacate office in accordance with the terms of their

appointment by the ITC; (c) shall hold office for the period for which they were appointed by the ITC;

and (d) after the end of that period, shall be eligible for re-appointment as members

of Seirbheis nam Meadhanan Gàidhlig.

Commencement Information I1290 Sch. 18 para. 28 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

29 (1) The continuance in force of the Multiplex Licence (Broadcasting of Programmes in Gaelic) Order 1996 (S.I. 1996/2758) made under section 32 of the 1996 Act is not affected by the amendment of that section by Schedule 15 to this Act.

(2) But in relation to times after the television transfer date, that order shall have effect as if—

(a) the reference in that order to the ITC were a reference to OFCOM; and (b) the reference to the application of section 28 of the 1996 Act to a frequency

were omitted.

Commencement Information I1291 Sch. 18 para. 29 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Pre-transfer Broadcasting Act licences 30 (1) Subject to any express provision made by this Act in relation to a particular

description of Broadcasting Act licence, neither— (a) the transfer from a pre-commencement regulator to OFCOM of the function

of granting or awarding such licences or of any other power exercisable in relation to such licences, nor

(b) any other modification by or by virtue of this Act of the power to grant or award such licences or of a provision having effect in relation to such licences,

shall affect the continuing validity of a licence by or under which the provision of a service is authorised immediately before the coming into force of the transfer or modification.

(2) Accordingly, such a licence shall continue to have effect, after the coming into force of the transfer or modification—

(a) on the same terms and conditions and for the same period as it would have done if this Act had not been passed; but

(b) as if, in relation to times after the coming into force of any relevant transfer of functions to OFCOM, every reference in the licence to a pre-commencement regulator were a reference to OFCOM.

(3) Sub-paragraph (2) is subject to the following provisions of this Act— (a) those under which a licence is to have effect as if the period for which it is

granted were the period determined under this Act; and (b) those under which the conditions of a licence fall to be varied for the purpose

of imposing a condition required by this Act.

(4) Anything done at any time before the relevant transfer date under or for the purposes of enforcing any provision of a Broadcasting Act licence is to have effect in relation to times on or after that date—

(a) to the extent that it was done by or in relation to the ITC or Radio Authority, and

(b) so far as necessary for preserving its effect or for facilitating the taking of further action by OFCOM,

as a thing done by or in relation to OFCOM.

(5) In sub-paragraph (4) “relevant transfer date”— (a) in relation to licences under Part 1 of the 1990 Act or Part 1 of the 1996 Act,

means the television transfer date; and (b) in relation to licences under Part 3 of the 1990 Act or Part 2 of the 1996 Act,

means the radio transfer date.

Commencement Information I1292 Sch. 18 para. 30 in force at 25.7.2003 by S.I. 2003/1900, art. 2(1), Sch. 1

Channels 3 and 5 31 A determination made by the ITC under or for the purposes of section 14 or 28 of

the 1990 Act (Channels 3 and 5) is to have effect on and after the television transfer date as a determination under that section by OFCOM.

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Commencement Information I1293 Sch. 18 para. 31 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Saving pending replacement of licences for Channels 3 and 5 and the public teletext service 32 (1) The regulatory regime for a Channel 3 service, and that for Channel 5 and the existing

teletext service, shall not include the self-regulation conditions in any case in which the service or (as the case may be) Channel 5 is provided under a licence granted before the television transfer date.

(2) In sub-paragraph (1) “the self-regulation conditions” means the conditions which (apart from that sub-paragraph) are included by virtue of sections 265 to 269 of this Act in the regulatory regime for Channel 3 services, for Channel 5 and for the public teletext service.

(3) In relation to a licence granted before the television transfer date for a Channel 3 service, Channel 5 or the existing teletext service, section 263 shall have effect as if the reference in subsection (3)(a) of that section to a corresponding or additional service to be provided in analogue form were a reference to a corresponding or additional service to be provided in digital form.

(4) In this paragraph “the existing teletext service” means the existing service within the meaning of section 221 of this Act.

Commencement Information I1294 Sch. 18 para. 32 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Digital additional licences 33 (1) This paragraph applies where immediately before the coming into force of

section 242 of this Act a person holds a digital additional services licence under Part 1 of the 1996 Act in respect of a digital sound programme service and with a view to the inclusion of the broadcasting of that service by means of a television multiplex service licensed under Part 1 of the 1996 Act.

(2) The licence is to have effect on and after the coming into force of section 242 of this Act as if it were a national digital sound programme licence or (as the case may be) were comprised in any national digital sound programme licence already held by the licence holder for the service in question.

(3) Where a licence has effect in accordance with this paragraph, it shall not (to the extent that it so has effect) authorise the broadcasting of the digital sound programme service in question by means of a radio multiplex service.

(4) In this paragraph— “digital additional services licence” has the same meaning as in Part 1 of

the 1996 Act; and “national digital sound programme licence” has the same meaning as in

Part 2 of that Act.

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Commencement Information I1295 Sch. 18 para. 33 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Programme quotas 34 Any order which—

(a) was made under section 16(5)(a) of the 1990 Act (definitions of “qualifying programmes” and “independent productions”), and

(b) is in force immediately before the commencement of sections 277 and 309 of this Act and paragraphs 1 and 7 of Schedule 12 to this Act,

is to have effect in relation to times after the commencement of those sections and those paragraphs as an order made in exercise of the corresponding powers conferred by those sections and those paragraphs.

Commencement Information I1296 Sch. 18 para. 34 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Continuity in relation to appointed news provider 35 Where a body holds an appointment for the purposes of section 31(2) of the 1990

Act immediately before the date of the commencement of section 280 of this Act— (a) that appointment shall have effect in relation to times on and after that

date as an appointment for the purposes of arrangements entered into in accordance with conditions imposed under section 280 of this Act;

(b) the arrangements under which that appointment was made shall have effect in relation to such times as arrangements so entered into; and

(c) so much of the appointment or arrangements, or of any agreement to which the body is a party, as makes provision by reference to the body’s ceasing to be nominated under section 32 of the 1990 Act shall have effect in relation to such times as if references to ceasing to be so nominated were references to becoming a body falling within section 281(2) of this Act.

Commencement Information I1297 Sch. 18 para. 35 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Networking arrangements 36 (1) Where arrangements approved for the purposes of section 39 of the 1990 Act

(networking arrangements) are in force immediately before the commencement of section 291 of this Act, those arrangements are to have effect for the purposes of this Act, and of any conditions imposed under that section of this Act, as approved networking arrangements.

(2) For the purposes of proceedings in relation to a report under Schedule 4 to the 1990 Act at any time after the commencement of Schedule 11 to this Act, that report is to have effect as if it were a report under that Schedule to this Act.

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Commencement Information I1298 Sch. 18 para. 36 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Determination of qualifying revenue 37 (1) A statement of the ITC that is for the time being in force immediately before the

television transfer date for the purposes of— (a) Schedule 7 to the 1990 Act (statement of principles for determining

qualifying revenue), or (b) Schedule 1 to the 1996 Act (corresponding statement for the purposes of

that Act, is to have effect on and after that date as a statement by OFCOM.

(2) On and after the television transfer date a determination by the ITC under paragraph 2 of Part 1 of either of those Schedules is to have effect as a determination under that paragraph by OFCOM, and sub-paragraph (2) of that paragraph is to have effect accordingly.

Commencement Information I1299 Sch. 18 para. 37 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Rules for political broadcasts 38 Where—

(a) rules made by the ITC for the purposes of section 36 of the 1990 Act (party political broadcasts on Channel 3, Channel 4 or Channel 5), or

(b) rules made by the Radio Authority for the purposes of section 107 of the 1990 Act (party political broadcasts on national radio services),

are in force immediately before the commencement of section 333 of this Act, those rules are to have effect after its commencement as rules made by OFCOM for the purposes of that section of this Act.

Commencement Information I1300 Sch. 18 para. 38 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Functions under section 88 of the 1990 Act 39 A requirement imposed or notice given before the radio transfer date by the Radio

Authority under section 88 of the 1990 Act (restriction on holding of licences) is to have effect on and after that date as if it were imposed or given by OFCOM.

Commencement Information I1301 Sch. 18 para. 39 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Notices under section 94 of the 1990 Act 40 A notice given by the Secretary of State or any other Minister of the Crown under

section 94 of the 1990 Act (government control over licensed services) is to have effect on and after the radio transfer date as a notice given to OFCOM under section 336 of this Act.

Commencement Information I1302 Sch. 18 para. 40 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Programme standards: television 41 (1) This paragraph applies as respects times on or after the television transfer date and

before the first coming into force, in the case of the holder of a licence under Part 1 of the 1990 Act or Part 1 of the 1996 Act, of conditions imposed under section 325 of this Act.

(2) Sections 6 to 12 of the 1990 Act (general provisions about the content of licensed services) are to have effect in the case of that licence holder as if references in those sections to the ITC were references to OFCOM.

(3) A code drawn up by the ITC under section 6, 7 or 9 of the 1990 Act is to have effect as if it had been drawn up by OFCOM.

Commencement Information I1303 Sch. 18 para. 41 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Programme standards: radio 42 (1) This paragraph applies as respects times on or after the radio transfer date and before

the first coming into force, in the case of the holder of a licence under Part 3 of the 1990 Act or Part 2 of the 1996 Act, of conditions imposed under section 325 of this Act.

(2) Sections 90 to 96 of the 1990 Act (general provisions about the content of licensed services) are to have effect as if references in those sections to the Radio Authority were references to OFCOM.

(3) A code drawn up by the Radio Authority under section 90, 91 or 93 of the 1990 Act is to have effect as if it had been drawn up by OFCOM.

Commencement Information I1304 Sch. 18 para. 42 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Standards code 43 (1) In relation to any time after the commencement of section 319 of this Act, a code

in force immediately before its commencement as a code drawn up under section 6, 7, 9, 90, 91 or 93 of the 1990 Act or section 108 of the 1996 Act is to have effect

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(subject to sub-paragraphs (2) and (3)) as if it were a code issued by OFCOM for the purpose of setting standards under section 319 of this Act.

(2) A code under the 1990 Act shall have effect by virtue of sub-paragraph (1) in relation only to the following—

(a) in the case of the codes under sections 6, 7 and 9, services the provision of which is authorised by licences under Part 1 of the 1990 Act and S4C; and

(b) in the case of the codes under sections 90, 91 and 93, services the provision of which is authorised by licences under Part 3 of that Act.

(3) In the case of the code under section 108 of the 1996 Act, the code shall have effect by virtue of sub-paragraph (1)—

(a) in relation only to services provided by the BBC or the Welsh Authority; and (b) to the extent only that it contains provision that applies to those services and,

in the case of services provided by the Welsh Authority, relates to matters other than advertising and impartiality.

Commencement Information I1305 Sch. 18 para. 43 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Local and national radio licences 44 (1) Section 103 of the 1990 Act (restriction on changes of control affecting holders of

national licences) is to apply in relation to a pre-transfer national licence as it applies in relation to a national licence within the meaning of Part 3 of the 1990 Act.

(2) Anything done by or in relation to the Radio Authority under any of sections 98 to 102 or 103A of the 1990 Act, so far as it has been done—

(a) before the radio transfer date, and (b) for the purposes of, or in connection with, the grant or renewal of a pre-

transfer national licence, is to have effect for the purposes of, and in connection with, the grant or renewal of a licence at times on or after that date as if done by or in relation to OFCOM in connection with or for the purposes of the grant or renewal of national licence (within the meaning of Part 3 of that Act).

(3) Anything done by or in relation to the Radio Authority under any of sections 104 to 105 of the 1990 Act, so far as it has been done—

(a) before the radio transfer date, and (b) for the purposes of, or in connection with, the grant or renewal of a pre-

transfer local licence, is to have effect for the purposes of, and in connection with, the grant or renewal of a licence at times on or after that date as if done by or in relation to OFCOM in connection with, or for the purposes of, the grant or renewal of local licence (within the meaning of Part 3 of that Act).

(4) In this paragraph “pre-transfer local licence” and “pre-transfer national licence” each has the same meaning as in section 253 of this Act.

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Commencement Information I1306 Sch. 18 para. 44 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Section 111B of the 1990 Act 45 (1) Section 111B of the 1990 Act (power to suspend satellite services) is to have

effect in relation to a licence to provide a formerly regulated radio service (within the meaning of section 251) as it applies in relation to a licence to provide a radio licensable content service, but as if the reference in subsection (1)(b) of that section to a condition included in the licence in pursuance of the provisions there mentioned included a reference to a condition included in the licence in pursuance of section 90(1)(a) of that Act.

(2) In relation to any time falling— (a) on or after the radio transfer date, and (b) before the first coming into force, in the case of the holder of a licence under

Part 3 of the 1990 Act or Part 2 of the 1996 Act, of conditions imposed under section 325 of this Act,

section 111B of the 1990 Act is to have effect in relation to a licence to provide a radio licensable content service as if the reference in subsection (1)(b) of section 111B of that Act to a condition included in the licence in pursuance of the provisions there mentioned were a reference to a condition included in the licence in pursuance of section 90(1)(a) of that Act.

Commencement Information I1307 Sch. 18 para. 45 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Section 185 of the 1990 Act 46 (1) A determination or nomination made for the purposes of section 185 of the 1990

Act (the national television archive) by the ITC is to have effect on and after the television transfer date as a determination or nomination made by OFCOM.

(2) Sub-paragraph (1) applies in the case of a determination so far only as it relates to a financial year beginning on or after the television transfer date.

Commencement Information I1308 Sch. 18 para. 46 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Section 28 of the 1996 Act 47 (1) The repeal by this Act of section 28 of the 1996 Act does not affect any power to

vary a licence under Part 1 of the 1990 Act which is— (a) conferred on the ITC by an order under that section; and (b) transferred to OFCOM by this Act.

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(2) Nor does it affect so much of any order under that section in force immediately before the repeal as—

(a) modifies section 16 of the 1996 Act in its application in relation to the renewal of a licence first granted before the television transfer date; or

(b) imposes a prohibition on the use of digital capacity reserved before that date; but so much of any such prohibition as requires the consent of the ITC for the use of any digital capacity shall have effect after the television transfer date as if the consent required were OFCOM’s consent.

(3) Sub-paragraph (1) only saves the power so far as it is exercisable in relation to a licence granted before the television transfer date.

Commencement Information I1309 Sch. 18 para. 47 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Section 48 of the 1996 Act 48 Subsections (4) to (6) of section 48 of the 1996 Act (reservations of capacity for

national radio multiplex licences to independent national broadcasters) are to apply in relation to conditions included in pursuance of that section in licences granted before the radio transfer date as they apply in relation to conditions included in licences by virtue of the amendments of that section made by this Act.

Commencement Information I1310 Sch. 18 para. 48 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Applications for extension of pre-transfer licences 49 (1) Section 253(4)(a) does not prevent the determination by OFCOM of a day falling

less than one year after the making of the determination where— (a) OFCOM consider that the day by which they would need to publish a notice

is a day which is not more than 15 months after the commencement date; and (b) the determination of that day is made as soon as practicable after the

commencement date.

(2) Where the day determined by OFCOM for the purposes of paragraph (b) of section 253(3) is a day in the period of three months beginning with the day after the determination, that paragraph shall have effect as if for the words “three months before” there were substituted “ on ”.

(3) In this paragraph, the “commencement date” is the date on which section 253 comes into force.

Commencement Information I1311 Sch. 18 para. 49 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

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Applications for renewal of licences under 1990 Act and 1996 Act 50 (1) A provision set out in sub-paragraph (2) does not prevent the determination by

OFCOM of a date falling less than one year after the making of the determination where—

(a) OFCOM consider that the relevant date for the purposes of the section in question is a date which is not more than 15 months after the commencement date; and

(b) the determination of the relevant date is made as soon as practicable after the commencement date.

(2) Those provisions are— (a) section 53(12) of the 1990 Act; (b) section 103A(12) of the 1990 Act; (c) section 104A(14) of the 1990 Act; (d) section 16(12A) of the 1996 Act; (e) section 58(12A) of the 1996 Act.

(3) An application which is made before the commencement date in accordance with a provision set out in sub-paragraph (5) shall be treated after that date as if it had been made in accordance with that provision as amended by this Act.

(4) Where, in a case where a provision set out in sub-paragraph (5) applies, the relevant date for the purposes of the section in question is a date in the period of three months beginning with—

(a) the commencement date, or (b) the day after the day on which the relevant date is determined,

that provision shall have effect as if the words “the day falling three months before” were omitted.

(5) Those provisions are— (a) section 53(2) of the 1990 Act; (b) section 103A(2) of the 1990 Act; (c) section 104A(3) of the 1990 Act; (d) section 16(3) of the 1996 Act; (e) section 58(3) of the 1996 Act.

(6) In this paragraph, the “commencement date”, in relation to any provision set out in sub-paragraph (2) or (5) is the date on which the provision of Schedule 15 inserting or amending that provision comes into force.

Commencement Information I1312 Sch. 18 para. 50 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Listed events rules 51 (1) Subject to sub-paragraph (2), Part 4 of the 1996 Act (sporting and other events of

national interest) is to have effect in relation to times on or after the television transfer date as if anything done before that date by or in relation to the ITC had been done by or in relation to OFCOM.

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(2) The code drawn up by the ITC under section 104 of the 1996 Act (code of guidance as to the operation of Part 4) and in force immediately before the commencement of section 301 of this Act is to continue to have effect (notwithstanding the substitutions made by that section of this Act)—

(a) until the code drawn up by OFCOM under that section comes into force; but (b) in relation to times on or after the transfer date and before the coming into

force of OFCOM’s code, as if references in section 104(2) of that Act and in the code to the ITC were references to OFCOM.

(3) If a provision of sections 300 to 302 of this Act comes into force before the television transfer date, a reference to OFCOM in an amendment made by that provision is to be construed in relation to times before that date as a reference to the ITC.

(4) On the date on which section 300 of this Act comes into force, the Secretary of State shall revise the list maintained for the purposes of Part 4 of the 1996 Act in order to allocate each event which is a listed event on that date either to Group A or to Group B.

(5) Where— (a) the events listed in the list in force immediately before the Secretary of State

revises it under sub-paragraph (4) are treated, for any of the purposes of the code in force under section 104 of the 1996 Act at that time, as divided into two categories, and

(b) the Secretary of State’s revision under that sub-paragraph makes the same division,

section 97(2) of the 1996 Act shall not apply in relation to that revision of that list.

(6) In this paragraph “the transfer date” is the date on which paragraph 13 of Schedule 1 comes into force.

Commencement Information I1313 Sch. 18 para. 51 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Complaints to the Broadcasting Standards Commission 52 (1) On and after the transfer to OFCOM under this Act of the functions of the

Broadcasting Standards Commission under Part 5 of the 1996 Act, that Part is to have effect in relation to a fairness complaint made to, but not disposed of by, the Commission before the transfer as if—

(a) anything done, or treated as done, by or in relation to the Commission for the purposes of, or in connection with, that complaint had been done by or in relation OFCOM; and

(b) those functions had been functions of OFCOM at the time when it was done.

(2) Where immediately before the commencement of section 327 of this Act a licence to provide a licensed service (within the meaning of Part 5 of the 1996 Act) contains a condition included in that licence by virtue of section 119(7) of that Act (conditions requiring compliance with BSC directions), that condition is to have effect on and after the coming into force of section 327 of this Act as a condition requiring the licence holder to comply with directions given to him by OFCOM.

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(3) In this paragraph “fairness complaint” has the same meaning as in Part 5 of the 1996 Act.

Commencement Information I1314 Sch. 18 para. 52 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Codes of practice drawn up by the Broadcasting Standards Commission 53 The code of practice drawn up by the Broadcasting Standards Commission under

section 107 of the 1996 Act (code in respect of unjust and unfair treatment and infringements of privacy) is to have effect on and after the transfer under this Act to OFCOM of the Commission’s functions under Part 5 of that Act as if it were the code required to be drawn up under that section by OFCOM.

Commencement Information I1315 Sch. 18 para. 53 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Media ownership provisions 54 (1) Part 4 of Schedule 14 to this Act is to have effect—

(a) in relation to times before the television transfer date as if references to OFCOM were, in relation to licences under Part 1 of the 1990 Act or Part 1 of the 1996 Act, references to the ITC; and

(b) in relation to times before the radio transfer date as if references to OFCOM were, in relation to licences under Part 3 of the 1990 Act or Part 2 of the 1996 Act, references to the Radio Authority.

(2) A determination by the ITC or the Radio Authority under paragraph 2(2) of Part 2 of Schedule 2 to the 1990 Act which is in force immediately before the commencement of Part 4 of Schedule 14 to this Act is to have effect on and after its commencement as a determination under paragraph 15 of that Schedule to this Act.

(3) Any guidance issued by the ITC and the Radio Authority under paragraph 2(3) of Part 2 of Schedule 2 to the 1990 Act and in force immediately before the commencement of Part 4 of Schedule 14 to this Act is to have effect on and after its commencement as guidance published under paragraph 15(4) of that Schedule to this Act.

(4) Anything done under paragraph 15 of Schedule 14 by the ITC or the Radio Authority which is in force immediately before the relevant transfer date is to have effect on and after that date as if done under that paragraph by OFCOM.

(5) The following powers under enactments in force before the relevant transfer date shall be exercisable by OFCOM at all times on or after that date in relation to a pre- commencement contravention of a requirement imposed by or under Parts 3 to 5 of Schedule 2 to the 1990 Act—

(a) all the powers and duties of the ITC under section 5 of the 1990 Act and section 5 of the 1996 Act;

(b) all the powers and duties of the Radio Authority under section 88 of the 1990 Act and section 44 of the 1996 Act; and

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(c) all the other powers and duties of the ITC or the Radio Authority in relation to contraventions of conditions imposed under section 5 or 88 of the 1990 Act or section 5 or 44 of the 1996 Act.

(6) For the purpose of determining whether anything occurring after the relevant transfer date is a pre-commencement contravention of a requirement imposed by or under Parts 3 to 5 of Schedule 2 to the 1990 Act, references in those Parts of that Schedule to the ITC or to the Radio Authority are to be construed as including references to OFCOM.

(7) In this paragraph— “pre-commencement contravention” means a contravention of a

requirement which occurred before the coming into force of the repeal by this Act of the provision by or under which the requirement was imposed; and

“the relevant transfer date”— (a) in relation to the ITC, means the television transfer date; and (b) in relation to the Radio Authority, means the radio transfer date.

Commencement Information I1316 Sch. 18 para. 54(1)-(4) in force at 18.9.2003 by S.I. 2003/1900, art. 2(2), Sch. 2 I1317 Sch. 18 para. 54(5)-(7) in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

TV licences F83255 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F832 Sch. 18 para. 55 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1

(with Sch. 8 Pt. 1)

Commencement Information I1318 Sch. 18 para. 55 in force at 1.4.2004 by S.I. 2003/3142, art. 4(2), Sch. 2 (with art. 11)

Functions under the Enterprise Act 2002 56 (1) This section has effect in so far as, at any time before the coming into force of

section 370 of this Act, anything has been done or is treated as done by or in relation to the Director for the purposes of, or in connection with, the carrying out of any of his functions under the Enterprise Act 2002 (c. 40).

(2) That thing is to have effect on and after that date, and OFCOM may carry out their functions and continue anything begun by that Director, as if—

(a) that thing had been done by or in relation to OFCOM for the purposes of, or in connection with, their functions under that Act by virtue of that section; and

(b) the provisions conferring those functions on OFCOM had been in force at the time it was done.

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(3) Sub-paragraph (1) does not apply to anything that could not be done by or in relation to OFCOM for the purposes of, or in connection with, the carrying out of their functions under the Enterprise Act 2002 (c. 40).

(4) Where, by virtue of sub-paragraph (3), sub-paragraph (1) does not apply to something, that thing is to have effect instead as if done by or in relation to the Office of Fair Trading

Commencement Information I1319 Sch. 18 para. 56 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1320 Sch. 18 para. 56 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Functions under the Competition Act 1998 57 (1) This paragraph applies in so far as, at any time before the coming into force of

section 371 of this Act, anything has been done by or in relation to the Director for the purposes of, or in connection with, the carrying out of any of his functions under the Competition Act 1998 (c. 41).

(2) That thing is to have effect on and after that date, and OFCOM may carry out their functions and continue anything begun by that Director, as if—

(a) that thing had been done by or in relation to OFCOM for the purposes of, or in connection with, their functions under that Act by virtue of that section; and

(b) the provisions conferring those functions on OFCOM had been in force at the time it was done.

(3) Sub-paragraph (1) does not apply to anything that could not be done by or in relation to OFCOM for the purposes of, or in connection with, the carrying out of their functions under the Competition Act 1998.

(4) Where, by virtue of sub-paragraph (3), sub-paragraph (1) does not apply to something, that thing is to have effect instead as if done by or in relation to the Office of Fair Trading

Commencement Information I1321 Sch. 18 para. 57 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1322 Sch. 18 para. 57 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

58 (1) Where any regulations made under section 54(4) of the Competition Act 1998 (regulations about concurrent functions of regulators and the Office of Fair Trading) are in force at the coming into force of section 371 of this Act, those regulations—

(a) shall, from that time have effect in relation to functions exercisable concurrently by virtue of section 371 of this Act as they have effect in relation to functions exercisable concurrently by virtue of Part 2 of Schedule 10 to the Competition Act 1998; but

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(b) shall so have effect subject to any amendments or revocations coming into force at or after that time.

(2) Where, at any time before the coming into force of section 371, anything has been done by or in relation to the Director under or for the purposes of any regulations made under section 54(4) of the Competition Act 1998 that thing is to have effect, so far as necessary for the purposes of paragraph 57 of this Schedule, as if done by or in relation to OFCOM.

Commencement Information I1323 Sch. 18 para. 58 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1324 Sch. 18 para. 58 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Newspaper mergers 59 (1) Chapter 2 of Part 5 and any related repeals shall, subject to sub-paragraph (2), not

apply in relation to— (a) a transfer of a newspaper or of newspaper assets (within the meaning given

by section 57(2) of the Fair Trading Act 1973 (c. 41)) which has been made before the coming into force of section 373 of this Act; or

(b) a proposed transfer of a newspaper or of newspaper assets in relation to which an application for the consent of the Secretary of State under section 58 of the Act of 1973 has been made before the coming into force of section 373 of this Act.

(2) Chapter 2 of Part 5 and any related repeals shall apply in relation to a proposed transfer of a newspaper or of newspaper assets if—

(a) an application for the consent of the Secretary of State under section 58 of the Act of 1973 has been made;

(b) the application is expressed to depend on the operation of subsection (3) or (4) of that section;

(c) no consent is given by the Secretary of State under subsection (3) or (4) of that section; and

(d) no further application has been made for the consent of the Secretary of State under that section before the coming into force of section 373 of this Act.

Commencement Information I1325 Sch. 18 para. 59 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

60 Chapter 2 of Part 5 and any related repeals shall apply in relation to any transfer of a newspaper or of newspaper assets which is proposed (and not made) before the coming into force of section 373 of this Act and in relation to which no application has been made for the consent of the Secretary of State under section 58 of the Act of 1973 before the coming into force of that section.

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Commencement Information I1326 Sch. 18 para. 60 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

61 References in paragraphs 59 and 60 to Chapter 2 of Part 5 do not include references to subsections (2) to (4) of section 389 (powers to make transitional and consequential amendments etc.).

Commencement Information I1327 Sch. 18 para. 61 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

62 (1) The Secretary of State may, instead of any or all of the conditions attached to a consent given by him (or treated as so given) under section 58 of the Fair Trading Act 1973 (c. 41)), accept undertakings under this paragraph to take, or refrain from taking, action specified or described in the undertakings.

(2) If, and so far as, the Secretary of State accepts an undertaking under this paragraph instead of a condition, that condition shall cease to have effect.

(3) In deciding whether to accept an undertaking under this paragraph, the Secretary of State may, in particular, consult the Office of Fair Trading and OFCOM.

(4) An undertaking under this paragraph— (a) shall come into force when accepted; (b) may be varied or superseded by another undertaking; and (c) may be released by the Secretary of State.

(5) The Secretary of State shall, as soon as reasonably practicable, consider any representations received by him in relation to varying or releasing an undertaking under this paragraph.

(6) Paragraph 10 of Schedule 7 to the Enterprise Act 2002 (c. 40) (order-making power where final undertakings not fulfilled) shall apply in relation to an undertaking under this paragraph as it applies in relation to an undertaking under paragraph 9 of that Schedule to that Act but as if—

(a) in sub-paragraph (2) the words from “for any” to “66(6)” were omitted; and (b) sub-paragraph (3) were omitted.

(7) The following provisions of the Enterprise Act 2002 (c. 40) shall apply in relation to an undertaking under this paragraph or an order made by virtue of sub-paragraph (6) as they apply in relation to an undertaking under paragraph 9 of Schedule 7 to that Act or (as the case may be) an order under paragraph 10 of that Schedule to that Act—

(a) section 90 and Schedule 10 (procedural requirements for certain undertakings and orders);

(b) section 91 (register of undertakings and orders); (c) section 92 (duty of OFT to monitor undertakings and orders); (d) section 93 (further role of OFT in relation to undertakings and orders); and (e) section 94 (rights to enforce undertakings and orders).

(8) Section 402 of this Act shall not apply in relation to the power of the Secretary of State to make an order which is exercisable by virtue of sub-paragraph (6) but

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supplementary provisions of Part 3 of the Enterprise Act 2002 which relate to the making of an order under paragraph 10 of Schedule 7 to that Act shall apply in relation to the making of an order by virtue of sub-paragraph (6).

(9) Section 402 of this Act shall not apply in relation to the power of the Secretary of State to make an order under section 91(6)(a) of the Enterprise Act 2002 as applied by virtue of sub-paragraph (7)(b) above but supplementary provisions of Part 3 of the Enterprise Act 2002 which relate to the making of an order under section 91(6) (a) of that Act shall apply in relation to the making of an order under that provision as applied by virtue of sub-paragraph (7)(b) above.

Commencement Information I1328 Sch. 18 para. 62 in force at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

Orders in Council under section 6 of the Continental Shelf Act 1964 F83363 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F833 Sch. 18 para. 63 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1

(with Sch. 8 Pt. 1)

Commencement Information I1329 Sch. 18 para. 63 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1330 Sch. 18 para. 63 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

Interpretation of Schedule 64 In this Schedule—

“the 1984 Act” means the Telecommunications Act 1984 (c. 12); “the abolition of licensing” means the coming into force of the repeal by

this Act of section 7 of the 1984 Act; “the Director” means the Director General of Telecommunications; “the ITC” means the Independent Television Commission.

Commencement Information I1331 Sch. 18 para. 64 in force at 25.7.2003 for specified purposes by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1

(with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1332 Sch. 18 para. 64 in force at 29.12.2003 in so far as not already in force by S.I. 2003/3142, art. 3(2)

(with art. 11)

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SCHEDULE 19 Section 406

REPEALS

(1) Enactments

Short title and chapter Extent of repeal

Telegraph Act 1899 (c. 38) The whole Act. Wireless Telegraphy Act 1949 (c. 54) In section 1—

(a) subsection (1A); (b) in subsection (4), the words “other than

a television licence” and the words from “; and a television licence” onwards;

(c) subsections (6) and (7). Section 1D(1), (2), (7) and (8). Section 1F. Section 2. In section 3(1), the words after paragraph (d) from “and different” to “classes of case:”. Section 9. In section 10(2), the words after paragraph (b). In section 11(1)—

(a) paragraph (i) of the proviso; (b) in paragraph (ii) of the proviso the

words “, and paragraph (i) of this proviso shall not apply”.

Section 14(1A)(e), (2) and (3)(b). Section 15(4)(c) and the word “or” immediately preceding it. Section 19(2A) and (9). Schedule 2.

Army Act 1955 (3 & 4 Eliz. 2 c. 18) In section 44B(5), the definition of “telecommunication system” and the word “and” immediately preceding it.

Air Force Act 1955 (3 & 4 Eliz. 2 c. 19) In section 44B(5), the definition of “telecommunication system” and the word “and” immediately preceding it.

Naval Discipline Act 1957 (c. 53) In section 29B(5), the definition of “telecommunication system” and the word “and” immediately preceding it.

Opencast Coal Act 1958 (c. 69) In section 45(3), the word “a” before “telecommunication apparatus”.

Continental Shelf Act 1964 (c. 29) Section 6. Parliamentary Commissioner Act 1967 (c. 13)

In Schedule 2, the entries relating to the Broadcasting Standards Commission and the Office of the Director General of Telecommunications.

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Short title and chapter Extent of repeal

Marine, &c., Broadcasting (Offences) Act 1967 (c. 41)

Section 6(2) and (7).

Wireless Telegraphy Act 1967 (c. 72) Section 4. In section 7(5), paragraph (b) and the word “or” immediately preceding it.

Fair Trading Act 1973 (c. 41) Sections 57 to 62. In section 93B—

(a) in subsection (1)(b), the words “the Telecommunications Act 1984 or”;

(b) in subsection (5), the words “section 13B of the Telecommunications Act 1984 or”.

House of Commons Disqualification Act 1975 (c. 24)

In Part 2 of Schedule 1, the entries relating to—

(a) the Broadcasting Standards Commission;

(b) Comataidh Craolaidh Gaidhlig; (c) the Independent Television

Commission; (d) the Radio Authority.

In Part 3 of Schedule 1, the entry relating to the Director General of Telecommunications.

Northern Ireland Assembly Disqualification Act 1975 (c. 25)

In Part 2 of Schedule 1, the entries relating to—

(a) the Broadcasting Standards Commission;

(b) the Independent Television Commission;

(c) the Radio Authority; (d) the Tribunal established under Part 2 of

the Wireless Telegraphy Act 1949. In Part 3 of Schedule 1, the entries relating to—

(a) the Director General of Telecommunications;

(b) a Director of the successor company within the meaning of Part 5 of the Telecommunications Act 1984.

Welsh Development Agency Act 1975 (c. 70) In section 19(11), the definition of “appropriate authority”.

British Telecommunications Act 1981 (c. 38) In section 88— (a) in subsection (1), the words from “, and

the special” to “Schedule 5,”; (b) in subsection (2), the words “and 5”.

In Schedule 4, paragraphs 2 to 18, 21 and 22. In Schedule 5, paragraphs 1 and 3 to 22.

Acquisition of Land Act 1981 (c. 67) In section 28, paragraph (f).

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Short title and chapter Extent of repeal

Telecommunications Act 1984 (c. 12) Sections 1 to 30. Sections 34 to 49. In section 50, subsections (2) to (6A). Sections 51 to 55. Section 60. Section 61(1) to (6). Section 62. Section 63(1) to (4). Sections 64 to 67. Sections 69 to 71. In section 72—

(a) in subsection (1), the words from the beginning to “this Act,” and the words “and development land tax”;

(b) subsections (2), (4) and (5). Section 73. Sections 80 and 81. Section 88. Section 90. In section 91—

(a) in subsection (2), the words “or section 80(9)(b) above” and the words “for an offence or (as the case may be) for the forfeiture of any apparatus under that section”;

(b) in subsection (4), the words “and in section 80(9)(b) above”.

Section 92(4). Section 93. Sections 95 to 97. In section 98(9), the words “and ‘telecommunication apparatus’”. In section 101—

(a) in subsection (2)(a), the words “or transferred”;

(b) subsection (4). Section 102. In section 104—

(a) in subsection (1), the words “2, 27L 60(1) or (3), 69(2) or” and “, or paragraph 1 of Schedule 5,”;

(b) subsection (3). In section 106(1), the definitions of—

(a) “commercial activities connected with telecommunications”;

(b) “consumer”, “monopoly situation”, “practice” and “supply”;

(c) “the Director”; (d) “directory information service”; (e) “disabled person” and “disabled”; (f) “public telecommunications operator”;

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Short title and chapter Extent of repeal (g) “public telecommunications system”; (h) “telecommunication apparatus”; (i) “telecommunication service”; (j) “telecommunications operator”; (k) “telecommunication system”; (l) “transitional period”.

Section 107(1), (2) and (4). In section 109—

(a) subsections (2) and (3); (b) in subsection (4), the words “and

the special transitional provisions with respect to patents for inventions and registered designs contained in Schedule 6 to this Act”;

(c) subsections (5) to (7). Schedule 1. In Schedule 2—

(a) in paragraph 1(1), the words from “‘telecommunications apparatus’ includes any apparatus” onwards;

(b) in paragraph 9(2), the words “section 11(1) of this Act,”;

(c) in paragraph 10(2)(b), the words “(within the meaning of section 6 of this Act)”;

(d) in paragraph 27(1), the words “section 109(2) or (3) of or”.

In Schedule 4, paragraphs 2, 3, 12, 16, 28(2), 40, 55(1) and (7), 65, 80(1), 86(1), 89(5) and 90. In Schedule 5—

(a) paragraphs 1 to 7; (b) paragraph 8(2) and (4); (c) paragraphs 9 to 14; (d) paragraphs 16 to 29; (e) paragraphs 31 to 33; (f) paragraph 35; (g) paragraphs 38 to 42; (h) paragraph 47; (i) in paragraph 48, in sub-paragraph (1),

the words “Part 1 of the Industry Act 1972 and” and in sub-paragraph (2), the words “Part 1 of the Industry Act 1972 or”;

(j) paragraphs 49 to 51. Schedule 6.

Companies Consolidation (Consequential Provisions) Act 1985 (c. 9)

In Schedule 2, the entries relating to sections 60(3), 61(4), 66, 70 and 73(1) of and Schedule 5 to the Telecommunications Act 1984.

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Short title and chapter Extent of repeal

Surrogacy Arrangements Act 1985 (c. 49) Section 3(6). Interception of Communications Act 1985 (c. 56)

Schedule 2.

Housing Act 1985 (c. 68) Section 298(1). Airports Act 1986 (c. 31) Section 62(8). Insolvency Act 1986 (c. 45) In Schedule 2A, paragraph 10(1)(a). Consumer Protection Act 1987 (c. 43) In Schedule 4, in paragraph 9(1), the words

“28(6) and”. Channel Tunnel Act 1987 (c. 53) In Part 10 of Schedule 7, paragraph 1(2). Income and Corporation Taxes Act 1988 (c. 1)

In Schedule 29, in the Table in paragraph 32, the entries relating to sections 62(7) and 72(4) of the Telecommunications Act 1984.

Legal Aid Act 1988 (c. 34) In Schedule 5, paragraph 11. Copyright, Designs and Patents Act 1988 (c. 48)

In section 69(2), the word “or” at the end of paragraph (b). In Schedule 2, the word “or” at the end of paragraph 17(2)(b). In Schedule 7, paragraph 27.

Housing Act 1988 (c. 50) In Part 2 of Schedule 10, paragraph 19. Electricity Act 1989 (c. 29) In Schedule 4, in paragraph 12, the

definitions of “public telecommunications operator” and of “telecommunication apparatus”, “telecommunication system” and “the telecommunications code”.

Companies Act 1989 (c. 40) In Schedule 18, paragraph 28. In Schedule 20, paragraph 2.

Planning (Consequential Provisions) Act 1990 (c. 11)

In Schedule 2, paragraph 63.

Courts and Legal Services Act 1990 (c. 41) In Schedule 10, paragraph 8. Broadcasting Act 1990 (c. 42) Sections 1 and 2.

In section 4(3), the words from “and the amount” onwards. In section 5—

(a) subsection (6A)(a); (b) subsection (6B).

Sections 6 to 12. In section 15(3), paragraphs (c) to (e). In section 16—

(a) subsections (2) and (3); (b) in subsection (4), the words from “; and

in applying” onwards; (c) subsections (5) to (8).

Section 20. Section 21A.

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Short title and chapter Extent of repeal In section 24, subsections (4) to (6). Sections 25 to 27. In section 29—

(a) in subsection (2), paragraph (b) and the word “and” immediately preceding it;

(b) subsection (3). Sections 30 to 36. Sections 38 and 39. In section 42A, paragraph (b) and the word “and” immediately preceding it. Chapters 3 and 4 of Part 1. Section 48(5). In section 50—

(a) in subsection (1)(b)(ii), the words “(subject to the approval of the Secretary of State)”;

(b) subsection (7). Section 51(2) and (7). In section 53(4), the words “before the relevant date”. Section 54(2) In section 56(1)(b), the words “, and have the functions conferred by,”. Section 57. Section 59. Section 60(1) to (3) and (6). In section 61A—

(a) subsection (1); (b) in subsection (2) the words “on or after

the notified date”; (c) subsections (5) and (6).

Section 62. Section 65. In section 66A(2), paragraphs (c) and (d). Sections 68 to 70. In section 71(1)—

(a) in the definition of “Channel 3”, the words “by the Commission”;

(b) the definitions of “the Commission”, “licensable programme service” and “satellite television service”.

Part 2. Sections 83 and 84. In section 85, subsections (3) and (4). In section 87—

(a) in subsection (2)(b), sub-paragraph (ii) and the word “or” immediately preceding it;

(b) in subsection (3), the words from “and the amount” onwards.

In section 88—

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Short title and chapter Extent of repeal (a) subsection (6A)(a); and (b) subsection (6B).

Section 89(2). Sections 90 to 96. In section 98(3)(a), the word “both” and sub-paragraph (ii) and the word “and” immediately preceding it. In section 99(1)(a), the word “both” and sub-paragraph (ii) and the word “and” immediately preceding it. In section 103A—

(a) in subsection (3), the words “before the relevant date”, paragraph (a) and, in paragraph (b), the words “in any other case”;

(b) in subsection (8), the words from “(whether because” to “any other reason)”;

(c) subsection (10); (d) in subsection (11), the definition of

“simulcast radio service”. In section 104A(5), at the end of paragraph (a), the word “and”. In section 104B—

(a) subsection (1)(b); (b) subsections (6) and (7).

In section 106(1), the words from “, except” onwards. Sections 106A to 108. Section 110(7). Sections 112 and 113. Section 114(5). In section 116(1)(b)(iii), the words “(subject to the approval of the Secretary of State)”. Section 117(2) and (7). Section 119(2). Section 122 to 125. In section 126(1), the definitions of “assigned frequency”, “the Authority” and “licensable sound programme service”. Section 134. In section 177(6), the definition of “relevant foreign satellite service”. Section 180(2) and (3). Section 181. In section 183—

(a) in subsection (3), the words “, which shall be called” onwards;

(b) subsection (3A); (c) subsections (6) and (7).

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Short title and chapter Extent of repeal In section 185(5), the definition of “the Commission”. Section 186. Section 187(1) and (2). In section 188(2), paragraphs (b), (d) and (e). Sections 189 to 191. In section 196—

(a) in subsection (1)(a), the words “, 82”; (b) subsection (2).

Section 197. Section 199(1) to (4) and (6). In section 201(1), the words “under this Act”. In section 202—

(a) in subsection (1), the definition of “telecommunication system”;

(b) in subsection (2)(b), the words “1” and “8”;

(c) in subsection (5)(a), the words “for general reception, or”.

Schedule 1. In Part 1 of Schedule 2—

(a) in paragraph 1(1), the definitions of “coverage area”, of “digital programme service”, of “local delivery licence” and “local delivery service”, of “local digital sound programme service” and “national digital sound programme service”, of “local radio multiplex service” and “national radio multiplex service” and of “television multiplex service”;

(b) paragraph 1(8); (c) paragraph 3A; (d) paragraph 3B; (e) paragraph 4.

In Part 2 of Schedule 2— (a) paragraph 1(1)(a) and (b); (b) in paragraph 1(1)(j)(i), the words “(a),

(b) or”; (c) paragraph 1(2) and (3); (d) in paragraph 5A(1)(a), the words

“granted by the Commission”; (e) paragraph 5A(1)(b) and the word “and”

immediately preceding it; (f) in paragraph 5A(2), the words “granted

by the Authority”; (g) paragraph 5A(3).

Parts 3 to 5 of Schedule 2. Schedule 4. Schedule 5. In Schedule 6—

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Short title and chapter Extent of repeal (a) paragraph 2(1); (b) in paragraph 13(2), the words from

“and shall include” onwards. Schedule 8. Schedule 12. In Schedule 18—

(a) in Part 1, paragraphs 1(4) to (6), 2(1) and (3) and 4;

(b) in Part 2, paragraphs 1(d) and 5. In Schedule 19—

(a) in paragraph 8(c), the words “and (where the expenses relate to the Commission’s functions in connection with sound programmes) the Radio Authority”;

(b) in paragraph 11(4), the words “or the Radio Authority” and “or, as the case may be, the Authority”.

In Schedule 20— (a) paragraph 9; (b) paragraph 24(c)(ii); (c) paragraph 38; (d) paragraph 54.

In Schedule 22— (a) paragraphs 1 to 3; (b) in paragraph 4, the words “and 45”; (c) paragraph 5.

New Roads and Street Works Act 1991 (c. 22)

In Schedule 4, in paragraph 7(4), the definitions of “telecommunication apparatus” and “telecommunication system”. In Schedule 6, in paragraph 7(4), the definitions of “telecommunication apparatus” and “telecommunication system”.

Taxation of Chargeable Gains Act 1992 (c. 12)

In Schedule 10, paragraph 7.

Charities Act 1992 (c. 41) In section 60(10), the definition of “telecommunication apparatus”.

Competition and Service (Utilities) Act 1992 (c. 43)

Sections 1 to 10. Section 49. In Schedule 1, paragraphs 1, 2, 3(b) and 4.

Carriage of Goods by Sea Act 1992 (c. 50) In section 5(1), the definition of “telecommunication system” and the word “and” immediately preceding it.

Tribunals and Inquiries Act 1992 (c. 53) In Part 1 of Schedule 1, the entry at paragraph 45 relating to wireless telegraphy.

Judicial Pensions and Retirement Act 1993 (c. 8)

Section 26(8)(a). In Schedule 5, the entry relating to the President of the tribunal established under

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Short title and chapter Extent of repeal section 9 of the Wireless Telegraphy Act 1949. In Schedule 6, paragraph 58. In Schedule 7, paragraph 5(5)(xxxii).

Leasehold Reform, Housing and Urban Development Act 1993 (c. 28)

In Part 2 of Schedule 20, paragraph 19(1).

Cardiff Bay Barrage Act 1993 (c. 42) In Schedule 4, in paragraph 3(2), the words following paragraph (c). In Schedule 7, paragraph 21(10).

Local Government (Wales) Act 1994 (c. 19) In Schedule 16, paragraph 72. Vehicle Excise and Registration Act 1994 (c. 22)

In Schedule 3, paragraph 3(a)(i).

Criminal Justice and Public Order Act 1994 (c. 33)

Section 92.

Deregulation and Contracting Out Act 1994 (c. 40)

Section 8. In Schedule 4, paragraph 3(a).

Criminal Procedure (Consequential Provisions) (Scotland) Act 1995 (c. 40)

In Schedule 4, paragraph 48(2) and (3).

Criminal Procedure (Scotland) Act 1995 (c. 46)

In Schedule 9, the entry relating to the Wireless Telegraphy Act 1949.

Arbitration Act 1996 (c. 23) In Schedule 3, paragraph 7. Broadcasting Act 1996 (c. 55) Section 1(1A) to (3).

Section 2(1), (6) and (7). In section 4(3), the words from “and the amount” onwards. Section 5(7)(a). Section 6. In section 11(5), the words from “not exceeding” onwards. Section 12(7). In section 16(6), the words “before the relevant date”. Section 18(5) and (6). Section 19(2) and (4) to (10). Sections 20 to 22. Section 25(5) and (6). Section 28. In section 29(2), the word “59,”. Sections 30 and 31. In section 33(3)(c), the words “or II”. Section 34. Section 38. In section 39(1), the definitions of “the Commission” and “qualifying teletext service”.

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Short title and chapter Extent of repeal In section 40(4), the words “provided on a frequency or frequencies assigned to the Authority under section 45(1)”. In section 43—

(a) in subsection (2)(b), sub-paragraph (ii) and the word “or” immediately preceding it;

(b) in subsection (3), the words from “and the amount” onwards.

Section 44(7)(a). Section 45. In section 46(1), paragraph (e). Section 47(4). Section 54(7). In section 56(1)(a)(i), the words “to which the licence relates”. In section 58—

(a) subsection (5); (b) in subsection (6), the words “before the

relevant date”. In section 60, subsections (7) to (10). In section 61, subsections (3) and (4). Section 68. Section 71. In section 72(1), the definition of “the Authority”. Sections 74 to 76. Sections 78 and 79. Section 80(2). Sections 82 to 84. Section 86(3). Sections 87 to 90. Section 91. Section 93. In section 95, subsections (3) to (7). In section 97(3)(b), the words “by the Commission” and “by them”. In section 104(4)(d), the words “by the Commission” and “by them”. In section 105(1), the definitions of “the Commission” and “live”. Section 106. In section 107—

(a) subsection (2); (b) in subsection (4)(a), the words “or

regulatory”. Sections 108 and 109. In section 110—

(a) subsection (2); (b) in subsection (3), the words from “; and

in exercising” onwards;

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Short title and chapter Extent of repeal (c) in subsection (4), the definition of “a

standards complaint” and the word “and” immediately preceding it.

Sections 112 and 113. In section 114—

(a) in subsection (1), the words “or a standards complaint”;

(b) in subsection (2), the words “or a standards complaint” and in paragraph (b) the words “, in the case of a fairness complaint,”.

In section 115— (a) in subsection (2), paragraph (c); (b) in subsection (3), paragraph (b) and the

word “and” immediately preceding it. Section 116. In section 118, the words “or a standards complaint”. In section 119—

(a) in subsection (3), paragraph (c); (b) in subsection (8), the words “or

standards complaint” and in paragraph (c) the words “, a regulatory body”;

(c) in subsection (9), the words “or standards complaint” and “, 113(1)”;

(d) subsection (12). In section 120(1), the words “or a standards complaint”. Sections 122 to 129. In section 130—

(a) in subsection (1), in the definition of “licensed service”, the words from “, subject to” to “125(6),”;

(b) the definitions in that subsection of “the appropriate regulatory body”, “the BSC”, “financial year”, “local delivery service”, “regulatory body”, “sexual conduct” and “standards complaint”;

(c) in subsection (2), paragraph (b) and the word “and” immediately preceding it.

Section 142. Section 143(3) and (4). Section 144(5). In section 145(8), the definition of “the relevant authority”. In Schedule 2, paragraphs 1(2)(d) to (f), 4, 5, 6(3), 10 and 11. Schedule 3. Schedule 4. In Schedule 8, paragraph 4.

878 Communications Act 2003 (c. 21) SCHEDULE 19 – Repeals

Document Generated: 2021-03-19 Status: This version of this Act contains provisions that are prospective.

Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Communications Act 2003. Any changes that have already been made by the team appear in the

content and are referenced with annotations. (See end of Document for details) View outstanding changes

Short title and chapter Extent of repeal In Schedule 10, paragraphs 1, 3 to 6, 8, 11 to 14, 16, 18 to 20, 22 to 25, 26(a)(ii) and (b) and 27(a).

Channel Tunnel Rail Link Act 1996 (c. 61) In Part 4 of Schedule 15, in paragraph 1(2), the definitions of “telecommunications code”, “telecommunications operator” and “operator”, “telecommunication apparatus”, “telecommunications code system” and “telecommunication system”.

Telecommunications (Fraud) Act 1997 (c. 4) The whole Act. Planning (Consequential Provisions) (Scotland) Act 1997 (c. 11)

In Schedule 2, paragraph 37.

Wireless Telegraphy Act 1998 (c. 6) In section 1(1), the words “other than a television licence as defined in section 1(7) of that Act”. In section 1(3)—

(a) paragraph (a); (b) in paragraph (b) the words from “or

provide” to “the Secretary of State”; (c) paragraph (d) and the word “and”

immediately preceding it. In section 3—

(a) in subsection (1), the words “or determined by him under” and paragraph (a) and the word “and” immediately after it;

(b) subsection (2); (c) in subsection (3), paragraph (h) and the

word “and” immediately preceding it. Section 5. Schedule 1.

Petroleum Act 1998 (c. 17) In Schedule 4— (a) in paragraph 2(3), the words “section 6

(wireless telegraphy) and”; (b) paragraph 19.

Competition Act 1998 (c. 41) In Schedule 1, paragraph 3. In Schedule 7—

(a) paragraph 2(1)(d)(iii); (b) in paragraph 19A(9), in the definition

of “merger reference group”, the words “section 59 of the Fair Trading Act 1973 (c. 41),” and in the definition of “special reference group” paragraphs (b) and (f) and the word “or” at the end of paragraph (m).

In Schedule 7A, in paragraph 1, in the definition of “merger investigation”, the

Communications Act 2003 (c. 21) SCHEDULE 19 – Repeals Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Short title and chapter Extent of repeal words “section 59 of the Fair Trading Act 1973 (c. 41),”. In Schedule 10—

(a) paragraph 2(1) to (6), (8) and (9); (b) paragraph 9(2) to (4) and (6).

In Schedule 12, paragraph 14(3). In Schedule 13, paragraph 35(2)(a).

Regional Development Agencies Act 1998 (c. 45)

In Schedule 6, paragraph 16(1).

Access to Justice Act 1999 (c. 22) In Schedule 4, paragraph 26. Electronic Communications Act 2000 (c. 7) Sections 11 and 12. Regulation of Investigatory Powers Act 2000 (c. 23)

Section 18(12)(e). In Schedule 4, paragraph 3.

Postal Services Act 2000 (c. 26) In Schedule 7, paragraph 3(2)(g). Freedom of Information Act 2000 (c. 36) In Part 6 of Schedule 1, the entries relating

to— (a) the Broadcasting Standards

Commission; (b) the Independent Television

Commission; (c) the Radio Authority; (d) the Scottish Advisory Committee on

Telecommunications; (e) the Welsh Advisory Committee on

Telecommunications. In Part 7 of Schedule 1, the entry relating to the Northern Ireland Advisory Committee on Telecommunications.

Countryside and Rights of Way Act 2000 (c. 37)

In section 45(1), the definitions of “telecommunications code” and “telecommunications code system”.

Transport Act 2000 (c. 38) In Schedule 8, paragraph 14(2). In Schedule 9, paragraph 3(2)(e).

Political Parties, Elections and Referendums Act 2000 (c. 41)

Section 11(1) and (2). In Schedule 12, in paragraph 4, sub- paragraphs (1) to (5) and in sub- paragraph (7) the definitions of “the 1990 Act”, “licence”, “licensed” and “the licensing body”. In Schedule 21, paragraph 8.

Criminal Justice and Police Act 2001 (c. 16) In the table in section 1(1), the entry relating to section 43(1)(b) of the Telecommunications Act 1984.

Anti-terrorism, Crime and Security Act 2001 (c. 24)

In Schedule 4, paragraph 29.

880 Communications Act 2003 (c. 21) SCHEDULE 19 – Repeals

Document Generated: 2021-03-19 Status: This version of this Act contains provisions that are prospective.

Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Communications Act 2003. Any changes that have already been made by the team appear in the

content and are referenced with annotations. (See end of Document for details) View outstanding changes

Short title and chapter Extent of repeal

Office of Communications Act 2002 (c. 11) Section 2. Sections 4 to 6. In the Schedule, paragraphs 1(4), 8(5), 17(8) and (9) and 20.

Tobacco Advertising and Promotion Act 2002 (c. 36)

Section 12(4).

Enterprise Act 2002 (c. 40) In section 22(3)(a), the words “69(1),”. In section 33(3)(a), the words “69(1),”. In section 46(1)(a), the words “69(1),”. In section 62(4), the words “section 69(1) or”. In section 67(1)(b), the words from “which” to “or 33”. In section 68(2)(c), the words from “which”, where it occurs for the second time, to “or 33”. Section 69. In section 121—

(a) in subsection (1), the words “, Part V of the Fair Trading Act 1973 (c. 41)”;

(b) in subsection (2), paragraph (b) and the word “or” at the end of the paragraph;

(c) in subsection (4)(c), sub-paragraph (i), the word “and” at the end of the sub- paragraph and, in sub-paragraph (ii), the words “in any other case,”;

(d) in subsection (8), the words “, Part V of the Act of 1973”;

(e) subsection (10). In section 136—

(a) in subsection (7), paragraph (a) and the word “and” immediately preceding paragraph (g);

(b) in subsection (8), the words “the Director of Telecommunications,”.

Section 168(3)(a), (4)(a) and (5)(d). In Schedule 9, paragraphs 1 and 16. In Schedule 25, paragraphs 13(2) to (8), 24(2) to (6), (8) and (9) and 34.

Income Tax (Earnings and Pensions) Act 2003 (c. 1)

In section 320(7), paragraph (d).

European Parliament (Representation) Act 2003(c. 7)

In section 12(4), in the definition of “programme services”, the words from “(including” to “local delivery services”.

Communications Act 2003 (c. 21) SCHEDULE 19 – Repeals Document Generated: 2021-03-19

881

Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Commencement Information I1333 Sch. 19(1) in force for specified purposes at 25.7.2003 by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1334 Sch. 19(1) in force for specified purposes at 18.9.2003 by S.I. 2003/1900, arts. 1(2), 2(2), Sch. 2 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1335 Sch. 19(1) in force for specified purposes at 29.12.2003 by S.I. 2003/3142, art. 3(1), Sch. 1 (with arts.

5, 6, 10, 11) I1336 Sch. 19(1) in force for specified purposes at 29.12.2003 by S.I. 2003/3142, art. 3(2) (with art. 11) I1337 Sch. 19(1) in force for specified purposes at 1.4.2004 by S.I. 2003/3142, art. 4(2), Sch. 2 (with art. 11)

Note F8341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F834 Sch. 19 Note 1 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1

(with Sch. 8 Pt. 1)

2 The repeal of section 63 of the Telecommunications Act 1984 (c. 12) does not affect the power of the Secretary of State or the Treasury to acquire or subscribe for securities of the successor company or of any subsidiary of the successor company other than pursuant to an enactment.

Commencement Information I1338 Sch. 19(1) Note 2 in force for specified purposes at 25.7.2003 by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1339 Sch. 19(1) Note 2 in force in so far as not already in force at 29.12.2003 by S.I. 2003/3142, art. 3(2)

(with art. 11)

F8353 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments F835 Sch. 19 Note 3 repealed (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), s. 126(2), Sch. 9 Pt. 1

(with Sch. 8 Pt. 1)

4 The repeal of paragraph 20 of Schedule 5 to the Telecommunications Act 1984 shall be disregarded for the purposes of Schedule 18 to this Act.

Commencement Information I1340 Sch. 19(1) Note 4 in force for specified purposes at 25.7.2003 by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1341 Sch. 19(1) Note 4 in force in so far as not already in force at 29.12.2003 by S.I. 2003/3142, art. 3(2)

(with art. 11)

882 Communications Act 2003 (c. 21) SCHEDULE 19 – Repeals

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Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Communications Act 2003. Any changes that have already been made by the team appear in the

content and are referenced with annotations. (See end of Document for details) View outstanding changes

5 The repeals of sections 27A to 27L and in section 50 of the Telecommunications Act 1984 and the repeal of sections 1 to 10 of the Competition and Service Utilities Act 1992 do not have effect in relation to any dispute or other matter referred to the Director General of Telecommunications before the coming into force of the repeals.

Commencement Information I1342 Sch. 19(1) Note 5 in force for specified purposes at 25.7.2003 by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1343 Sch. 19(1) Note 5 in force in so far as not already in force at 29.12.2003 by S.I. 2003/3142, art. 3(2)

(with art. 11)

6 The repeals of sections 26 and 27 of the 1990 Act have effect subject to section 201(2) of this Act.

Commencement Information I1344 Sch. 19(1) Note 6 in force for specified purposes at 25.7.2003 by S.I. 2003/1900, arts. 1(2), 2(1), Sch.

1 (with art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1345 Sch. 19(1) Note 6 in force in so far as not already in force at 29.12.2003 by S.I. 2003/3142, art. 3(2)

(with art. 11)

(2) Instruments

Title and number Extent of revocation

Planning (Northern Ireland) Order 1991 (S.I. 1991/1220 (N.I. 11))

Article 104(5).

Electricity (Northern Ireland) Order 1992 (S.I. 1992/231 (N.I. 1))

In Schedule 4, in paragraph 1(1), the definitions of “public telecommunications operator” and of “telecommunication apparatus”, “telecommunication system” and “the telecommunications code”.

Telecommunications (Single Emergency Call Number) Regulations 1992 (S.I. 1992/2875)

The whole regulations.

Roads (Northern Ireland) Order 1993 (S.I. 1993/3160 (N.I. 15))

In Article 2(2), the definitions of “telecommunication apparatus”, “the telecommunications code” and “telecommunications code system”.

Airports (Northern Ireland) Order 1994 (S.I. 1994/426 (N.I. 1))

Article 12(7).

Street Works (Northern Ireland) Order 1995 (S.I. 1995/3210 (N.I. 19))

In Schedule 2, in paragraph 7(4), the definitions of “telecommunication apparatus” and “telecommunication system”.

Gas (Northern Ireland) Order 1996 (S.I. 1996/275 (N.I. 2))

In Schedule 3, in paragraph 1, the definitions of “public telecommunications operator” and of “telecommunication apparatus”,

Communications Act 2003 (c. 21) SCHEDULE 19 – Repeals Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective. Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial

team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. (See end of Document for details) View outstanding changes

Title and number Extent of revocation “telecommunication system” and “the telecommunications code”.

Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6))

Paragraphs 4 and 9 of Schedule 2.

Telecommunications (Voice Telephony) Regulations 1997 (S.I. 1997/1886)

The whole regulations.

Telecommunications (Interconnection) Regulations 1997 (S.I. 1997/2931)

The whole regulations.

Telecommunications (Open Network Provision and Leased Lines) Regulations 1997 (S.I. 1997/2932)

The whole regulations.

Telecommunications (Open Network Provision) (Voice Telephony) Regulations 1998 (S.I. 1998/1580)

The whole regulations.

Telecommunications (Licence Modification) (Standard Schedules) Regulations 1999 (S.I. 1999/2450)

The whole regulations.

Telecommunications (Licence Modification) (Fixed Voice Telephony and International Facilities Operator Licences) Regulations 1999 (S.I. 1999/2451)

The whole regulations.

Telecommunications (Licence Modification) (Mobile Public Telecommunications Operators) Regulations 1999 (S.I. 1999/2452)

The whole regulations.

Telecommunications (Licence Modification) (British Telecommunications plc) Regulations 1999 (S.I. 1999/2453)

The whole regulations.

Telecommunications (Licence Modification) (Cable and Local Delivery Operator Licences) Regulations 1999 (S.I. 1999/2454)

The whole regulations.

Telecommunications (Licence Modification) (Kingston Communications (Hull) PLC) Regulations 1999 (S.I. 1999/2455)

The whole regulations.

Telecommunications (Interconnection) (Carrier Pre-section) Regulations 1999 (S.I. 1999/3448)

The whole regulations.

Telecommunications (Interconnection) (Number Portability, etc.) Regulations 1999 (S.I. 1999/3449)

The whole regulations.

Telecommunications (Licence Modification) (Satellite Operator Licences) Regulations 2000 (S.I. 2000/1711)

The whole regulations.

884 Communications Act 2003 (c. 21) SCHEDULE 19 – Repeals

Document Generated: 2021-03-19 Status: This version of this Act contains provisions that are prospective.

Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Communications Act 2003. Any changes that have already been made by the team appear in the

content and are referenced with annotations. (See end of Document for details) View outstanding changes

Title and number Extent of revocation

Telecommunications (Licence Modification) (Regional Public Access Mobile Radio Operator Licences) Regulations 2000 (S.I. 2000/1712)

The whole regulations.

Telecommunications (Licence Modification) (Amendment) Regulations 2000 (S.I. 2000/1713)

The whole regulations.

Telecommunications (Licence Modification) (Mobile Data Operator Licences) Regulations 2000 (S.I. 2000/1714)

The whole regulations.

Telecommunications (Licence Modification) (Paging Operator Licences) Regulations 2000 (S.I. 2000/1715)

The whole regulations.

Telecommunications (Services for Disabled Persons) Regulations 2000 (S.I. 2000/2410)

The whole regulations.

Telecommunications (Licence Modifications) (Amendment No. 2) Regulations 2000 (S.I. 2000/2998)

The whole regulations.

Telecommunications (Licence Modifications) (Amendment) Regulations 2001 (S.I. 2001/2495)

The whole regulations.

Commencement Information I1346 Sch. 19(2) in force for specified purposes at 25.7.2003 by S.I. 2003/1900, arts. 1(2), 2(1), Sch. 1 (with

art. 3) (as amended by S.I. 2003/3142, art. 1(3)) I1347 Sch. 19(2) in force in so far as not already in force at 29.12 .2003 by S.I. 2003/3142, art. 3(1)(2), Sch.

1 (with art. 11)

Communications Act 2003 (c. 21) Document Generated: 2021-03-19

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Status: This version of this Act contains provisions that are prospective.

Changes to legislation: There are outstanding changes not yet made by the legislation.gov.uk editorial team to Communications Act 2003. Any changes that have already been made by the team appear in the content and are referenced with annotations. View outstanding changes

Changes and effects yet to be applied to : – s. 25 heading substituted by S.I. 2019/246 Sch. 1 para. 7(5) – s. 4A heading words omitted by S.I. 2019/246 Sch. 1 para. 4(4) – s. 4 heading words substituted by S.I. 2019/246 Sch. 1 para. 3(11) – s. 70 heading substituted by S.I. 2020/1419 Sch. 1 para. 25 – s. 72 heading substituted by S.I. 2020/1419 Sch. 1 para. 26 – s. 48A heading word substituted by S.I. 2019/246 Sch. 1 para. 10(4) – s. 49A heading word substituted by S.I. 2019/246 Sch. 1 para. 14(4) – s. 80A heading word substituted by S.I. 2019/246 Sch. 1 para. 26(4) – s. 218 heading word substituted by 2010 c. 24 s. 28(4) – s. 3(14) words inserted by S.I. 2020/1419 Sch. 1 para. 2(3) – s. 4(2) word substituted by S.I. 2020/1419 Sch. 1 para. 3(2)(a) – s. 4(2) words substituted by S.I. 2019/246 Sch. 1 para. 3(2) (This amendment not

applied to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

– s. 4(2) words substituted by S.I. 2020/1419 Sch. 1 para. 3(2)(b) – s. 4(2) words substituted by S.I. 2020/1419 Sch. 1 para. 67(2) – s. 4(3) word omitted by S.I. 2019/246 Sch. 1 para. 3(3) – s. 4(4) omitted by S.I. 2019/246 Sch. 1 para. 3(4) – s. 4(5) word substituted by S.I. 2019/246 Sch. 1 para. 3(5)(a) – s. 4(5) words substituted by S.I. 2019/246 Sch. 1 para. 3(5)(b) – s. 4(6) word substituted by S.I. 2019/246 Sch. 1 para. 3(6) – s. 4(6A) word substituted by S.I. 2019/246 Sch. 1 para. 3(6) – s. 4(7) word substituted by S.I. 2019/246 Sch. 1 para. 3(7) – s. 4(9) word substituted by S.I. 2019/246 Sch. 1 para. 3(8) – s. 4(10)(a) words inserted by S.I. 2019/246 Sch. 1 para. 3(9) – s. 4(10)(a) words inserted by S.I. 2019/919 reg. 2 (This amendment not applied to

legislation.gov.uk. Reg. 2 omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 5)

– s. 4(10)(a) words inserted by S.I. 2020/1419 Sch. 1 para. 3(4) – s. 4(10)(a) words inserted by S.I. 2020/1419 Sch. 1 para. 67(3) – s. 4(11) words substituted by S.I. 2019/246 Sch. 1 para. 3(10) (This amendment not

applied to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

– s. 4(11) words substituted by S.I. 2020/1419 Sch. 1 para. 67(5) – s. 4(12) words inserted by S.I. 2020/1419 Sch. 1 para. 3(6)(a) – s. 4(12) words inserted by S.I. 2020/1419 Sch. 1 para. 3(6)(b) – s. 4(13) substituted by S.I. 2020/1419 Sch. 1 para. 3(8) – s. 4A(2) substituted by S.I. 2019/246 Sch. 1 para. 4(2) (This amendment not applied

to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

– s. 4A(2) substituted by S.I. 2020/1419 Sch. 1 para. 68 – s. 4A(2) words inserted by S.I. 2020/1419 Sch. 1 para. 4 – s. 4A(3) omitted by S.I. 2019/246 Sch. 1 para. 4(3) – s. 5(3A) word substituted by S.I. 2019/246 Sch. 1 para. 5(b) (This amendment not

applied to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

886 Communications Act 2003 (c. 21) Document Generated: 2021-03-19

– s. 5(3A) words substituted by S.I. 2019/246 Sch. 1 para. 5(a) (This amendment not applied to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

– s. 5(3A) words substituted by S.I. 2020/1419 Sch. 1 para. 5 – s. 10(3) word omitted by S.I. 2019/246 Sch. 1 para. 6 – s. 25(1)(a) words substituted by S.I. 2019/246 Sch. 1 para. 7(2)(a) – s. 25(1)(b)(i) word omitted by S.I. 2019/246 Sch. 1 para. 7(2)(b)(i) – s. 25(1)(b)(ii) word inserted by S.I. 2019/246 Sch. 1 para. 7(2)(b)(ii) – s. 25(2) substituted by S.I. 2019/246 Sch. 1 para. 7(3) – s. 25(3) words inserted by S.I. 2019/246 Sch. 1 para. 7(4)(a) – s. 25(3) words inserted by S.I. 2019/246 Sch. 1 para. 7(4)(b) – s. 33(5)(a) words inserted by S.I. 2020/1419 Sch. 1 para. 8(a) – s. 33(5)(c) words inserted by S.I. 2020/1419 Sch. 1 para. 8(b) – s. 33(5)(e) omitted by S.I. 2020/1419 Sch. 1 para. 8(d) – s. 33(5)(f) words substituted by S.I. 2020/1419 Sch. 1 para. 8(e) – s. 33(7) omitted by S.I. 2019/246 Sch. 1 para. 8(2) – s. 33(8) omitted by S.I. 2019/246 Sch. 1 para. 8(2) – s. 33(10) words omitted by S.I. 2019/246 Sch. 1 para. 8(3) – s. 48(2) words omitted by S.I. 2019/246 Sch. 1 para. 9(2) – s. 48(2B)(a) words substituted by S.I. 2019/246 Sch. 1 para. 9(3)(a) – s. 48(2B)(b) and word omitted by S.I. 2019/246 Sch. 1 para. 9(3)(b) – s. 48(7) words substituted by S.I. 2019/246 Sch. 1 para. 9(4) – s. 48A(2) words omitted by S.I. 2019/246 Sch. 1 para. 10(2) – s. 48A(4) words substituted by S.I. 2020/1419 Sch. 1 para. 13(3) – s. 48A(7) words omitted by S.I. 2019/246 Sch. 1 para. 10(3)(a) – s. 48A(7) words substituted by S.I. 2019/246 Sch. 1 para. 10(3)(b) – s. 48B omitted by S.I. 2019/246 Sch. 1 para. 11 – s. 48B(3) words substituted by S.I. 2020/1419 Sch. 1 para. 14(2)(a) – s. 48B(3) words substituted by S.I. 2020/1419 Sch. 1 para. 14(2)(b) – s. 48B(7) words substituted by S.I. 2020/1419 Sch. 1 para. 14(3) – s. 48B(9) words substituted by S.I. 2020/1419 Sch. 1 para. 14(4) – s. 48C(2)-(4) omitted by S.I. 2019/246 Sch. 1 para. 12 – s. 49(3) word substituted by S.I. 2019/246 Sch. 1 para. 13(2) (This amendment not

applied to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

– s. 49(3) word substituted by S.I. 2020/1419 Sch. 1 para. 15 – s. 49(3) word substituted by S.I. 2020/1419 Sch. 1 para. 69 – s. 49(4) words omitted by S.I. 2019/246 Sch. 1 para. 13(3) – s. 49(4B)(a) words substituted by S.I. 2019/246 Sch. 1 para. 13(4)(a) – s. 49(4B)(b) and word omitted by S.I. 2019/246 Sch. 1 para. 13(4)(b) – s. 49(4C)(a) word inserted by S.I. 2019/246 Sch. 1 para. 13(5)(a) – s. 49(4C)(c) and word omitted by S.I. 2019/246 Sch. 1 para. 13(5)(b) – s. 49A(2) words omitted by S.I. 2019/246 Sch. 1 para. 14(2) – s. 49A(4) words substituted by S.I. 2020/1419 Sch. 1 para. 16 – s. 49A(7) words omitted by S.I. 2019/246 Sch. 1 para. 14(3) – s. 49B omitted by S.I. 2019/246 Sch. 1 para. 15 – s. 49B(3) words substituted by S.I. 2020/1419 Sch. 1 para. 17(2)(a) – s. 49B(3) words substituted by S.I. 2020/1419 Sch. 1 para. 17(2)(b) – s. 49B(7) words substituted by S.I. 2020/1419 Sch. 1 para. 17(3) – s. 49B(10) words substituted by S.I. 2020/1419 Sch. 1 para. 17(4) – s. 49C(2) omitted by S.I. 2019/246 Sch. 1 para. 16(2) – s. 49C(3) omitted by S.I. 2019/246 Sch. 1 para. 16(2) – s. 49C(4)(d)-(g) omitted by S.I. 2019/246 Sch. 1 para. 16(3) – s. 49C(4)(f) words substituted by S.I. 2020/1419 Sch. 1 para. 18(a) – s. 49C(4)(g) words substituted by S.I. 2020/1419 Sch. 1 para. 18(b) – s. 49C(5) omitted by S.I. 2019/246 Sch. 1 para. 16(4) – s. 49C(6) omitted by S.I. 2019/246 Sch. 1 para. 16(4) – s. 51(1)(d) words inserted by S.I. 2020/1419 Sch. 1 para. 19(2)

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887

– s. 51(2)(b) substituted by S.I. 2019/246 Sch. 1 para. 17(2) (This amendment not applied to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

– s. 51(2)(b) substituted by S.I. 2020/1419 Sch. 1 para. 70 – s. 51(2A) omitted by S.I. 2019/246 Sch. 1 para. 17(3) – s. 51(5) words omitted by S.I. 2019/246 Sch. 1 para. 17(4) – s. 55(1)(b)(ii) and word omitted by S.I. 2019/246 Sch. 1 para. 18 – s. 60(4) words substituted by S.I. 2020/1419 Sch. 1 para. 20 – s. 61(6)(b) words substituted by S.I. 2020/1419 Sch. 1 para. 21 – s. 65(1) words omitted by S.I. 2019/246 Sch. 1 para. 19 – s. 65(2)(a) word inserted by S.I. 2020/1419 Sch. 1 para. 22(2)(a) – s. 65(2)(c)-(e) omitted by S.I. 2020/1419 Sch. 1 para. 22(2)(b) – s. 65(2B) words inserted by S.I. 2020/1419 Sch. 1 para. 22(3) – s. 65(2C)(a) words inserted by S.I. 2020/1419 Sch. 1 para. 22(5) – s. 65(3) words inserted by S.I. 2020/1419 Sch. 1 para. 22(6) – s. 66(8) omitted by S.I. 2019/246 Sch. 1 para. 20 – s. 66(9) omitted by S.I. 2019/246 Sch. 1 para. 20 – s. 67(3) word inserted by S.I. 2019/246 Sch. 1 para. 21(2)(a) (This amendment not

applied to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

– s. 67(3) word inserted by S.I. 2020/1419 Sch. 1 para. 23(a) – s. 67(3)(c) and word omitted by S.I. 2019/246 Sch. 1 para. 21(2)(b) (This

amendment not applied to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

– s. 67(3)(c) and word omitted by S.I. 2020/1419 Sch. 1 para. 23(b) – s. 72A modified (temp.) by S.I. 2020/1419 reg. 5 – s. 72A(1) words omitted by S.I. 2020/1419 Sch. 1 para. 27 – s. 72B(1)(a) words inserted by S.I. 2020/1419 Sch. 1 para. 28 – s. 74(3) words inserted by S.I. 2020/1419 Sch. 1 para. 31(3) – s. 75(2)(b) words inserted by S.I. 2019/224 Sch. 1 para. 19(2)(b) (This amendment

not applied to legislation.gov.uk. Sch.1 para. 19(2)(b)(3) omitted (21.12.2020) by virtue of S.I. regs. 1(2), Sch. 2 para. 3)

– s. 75(2)(b) words inserted by S.I. 2020/1419 Sch. 1 para. 72(2) – s. 75(2)(b) words omitted by S.I. 2019/224 Sch. 1 para. 19(2)(a) – s. 75(2)(b) words substituted by S.I. 2020/1419 Sch. 1 para. 33(2) – s. 75(2)(b) words substituted in earlier amending provision S.I. 2019/224, Sch. 1

para. 19(2)(b) by S.I. 2020/1536 reg. 5(4) – s. 77(4) words substituted by S.I. 2019/246 Sch. 1 para. 22(2) – s. 77(7)(b) word substituted by S.I. 2019/246 Sch. 1 para. 22(3) – s. 78(2) substituted by S.I. 2019/246 Sch. 1 para. 23(2) – s. 78(2) words substituted by S.I. 2020/1419 Sch. 1 para. 34(2) – s. 78(5) omitted by S.I. 2019/246 Sch. 1 para. 23(3) (This amendment not applied

to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

– s. 78(5) omitted by S.I. 2020/1419 Sch. 1 para. 34(3) – s. 79(2)(3)(7) omitted by S.I. 2019/246 Sch. 1 para. 24(3) – s. 80(1) words omitted by S.I. 2019/246 Sch. 1 para. 25(2) – s. 80(1B)(a) words substituted by S.I. 2019/246 Sch. 1 para. 25(3)(a) – s. 80(1B)(b) and word omitted by S.I. 2019/246 Sch. 1 para. 25(3)(b) – s. 80(7) omitted by S.I. 2019/246 Sch. 1 para. 25(4) – s. 80A(2) words omitted by S.I. 2019/246 Sch. 1 para. 26(2) – s. 80A(6) words substituted by S.I. 2020/1419 Sch. 1 para. 36 – s. 80A(10) words omitted by S.I. 2019/246 Sch. 1 para. 26(3)(a) – s. 80A(10) words substituted by S.I. 2019/246 Sch. 1 para. 26(3)(b) – s. 80B omitted by S.I. 2019/246 Sch. 1 para. 27 – s. 80B(3) words substituted by S.I. 2020/1419 Sch. 1 para. 37(2) – s. 80B(6) words substituted by S.I. 2020/1419 Sch. 1 para. 37(3) – s. 80B(8)(a) words substituted by S.I. 2020/1419 Sch. 1 para. 37(4)(a)

888 Communications Act 2003 (c. 21) Document Generated: 2021-03-19

– s. 80B(8)(b) word substituted by S.I. 2020/1419 Sch. 1 para. 37(4)(b)(i) – s. 80B(8)(b) word substituted by S.I. 2020/1419 Sch. 1 para. 37(4)(b)(ii) – s. 81(2)-(4) omitted by S.I. 2019/246 Sch. 1 para. 28 – s. 83 omitted by S.I. 2019/246 Sch. 1 para. 29 – s. 83(1) words substituted by S.I. 2020/1419 Sch. 1 para. 38 – s. 84(2) words substituted by S.I. 2020/1419 Sch. 1 para. 39 – s. 84(7) words substituted by S.I. 2019/246 Sch. 1 para. 30 – s. 84A(2) omitted by S.I. 2019/246 Sch. 1 para. 31(2) – s. 84A(2) words substituted by S.I. 2020/1419 Sch. 1 para. 40(2) – s. 84A(3)(b) and word omitted by S.I. 2019/246 Sch. 1 para. 31(3) – s. 84A(5)(6) omitted by S.I. 2019/246 Sch. 1 para. 31(4) – s. 84A(5) words substituted by S.I. 2020/1419 Sch. 1 para. 40(3) – s. 84A(7)(a) words substituted by S.I. 2020/1419 Sch. 1 para. 40(4)(a) – s. 84A(7)(b) words substituted by S.I. 2020/1419 Sch. 1 para. 40(4)(b)(i) – s. 84A(7)(b) words substituted by S.I. 2020/1419 Sch. 1 para. 40(4)(b)(ii) – s. 87(4)(d) word inserted by S.I. 2019/246 Sch. 1 para. 32(a) – s. 87(4)(d) words inserted by S.I. 2020/1419 Sch. 1 para. 41(3)(b) – s. 87(4)(f) and word omitted by S.I. 2019/246 Sch. 1 para. 32(b) – s. 88(1)(b)(ii) word omitted by S.I. 2020/1419 Sch. 1 para. 42(2)(i) – s. 88(1)(b)(iii) words inserted by S.I. 2020/1419 Sch. 1 para. 42(2)(ii) – s. 88(2) substituted by S.I. 2020/1419 Sch. 1 para. 42(4) – s. 89(2) words omitted by S.I. 2019/246 Sch. 1 para. 33 – s. 89B substituted by S.I. 2019/246 Sch. 1 para. 34 – s. 96C(3) words inserted by S.I. 2020/1419 Sch. 1 para. 46(2) – s. 96C(4)(d)(ii) words substituted by S.I. 2020/1419 Sch. 1 para. 46(3) – s. 97(5) words inserted by S.I. 2020/1419 Sch. 1 para. 47 – s. 98(1)(a) words inserted by S.I. 2020/1419 Sch. 1 para. 48 – s. 100A(1)(a) words inserted by S.I. 2020/1419 Sch. 1 para. 50(2) – s. 100A(3)(a) words inserted by S.I. 2020/1419 Sch. 1 para. 50(3) – s. 102(2)(b) words substituted by S.I. 2020/1419 Sch. 1 para. 51 – s. 104(1) word inserted by S.I. 2020/1419 Sch. 1 para. 52(2)(b) – s. 104(3) word inserted by S.I. 2020/1419 Sch. 1 para. 52(3) – s. 104(4) words inserted by S.I. 2020/1419 Sch. 1 para. 52(4) – s. 105B(3) word substituted by S.I. 2019/246 Sch. 1 para. 35(2)(a) – s. 105B(3)(a) word omitted by S.I. 2019/246 Sch. 1 para. 35(2)(b) – s. 105B(6) word substituted by S.I. 2019/246 Sch. 1 para. 35(3) – s. 107(3C) words substituted by S.I. 2020/1419 Sch. 1 para. 53 – s. 107(9) words substituted by S.I. 2020/1419 Sch. 1 para. 53 – s. 134(8) words substituted by 2021 c. 7 Sch. para. 2 – s. 134A(4)(b) substituted by S.I. 2020/1419 Sch. 1 para. 55 – s. 134B(1)(h) word omitted by S.I. 2020/1419 Sch. 1 para. 57(b) – s. 134B(1)(i) word inserted by S.I. 2020/1419 Sch. 1 para. 57(c) – s. 150A omitted by S.I. 2019/246 Sch. 1 para. 36 – s. 150A(2)(a) words substituted by S.I. 2020/1419 Sch. 1 para. 60(a) – s. 150A(2)(a) words substituted by S.I. 2020/1419 Sch. 1 para. 60(b) – s. 151(1) words inserted by S.I. 2020/1419 Sch. 1 para. 61(2)(b) – s. 151(1) words inserted by S.I. 2020/1419 Sch. 1 para. 61(2)(c) – s. 151(1) words inserted by S.I. 2020/1419 Sch. 1 para. 61(2)(d) – s. 151(1) words inserted by S.I. 2020/1419 Sch. 1 para. 61(2)(e) – s. 151(1) words inserted by S.I. 2020/1419 Sch. 1 para. 61(2)(f) – s. 151(1) words omitted by S.I. 2020/1419 Sch. 1 para. 61(2)(a) – s. 151(1) words omitted by S.I. 2020/1419 Sch. 1 para. 61(2)(g) – s. 151(4B) words substituted by S.I. 2020/1419 Sch. 1 para. 61(3) – s. 151(5) omitted by S.I. 2020/1419 Sch. 1 para. 78 – s. 151(5) words substituted by S.I. 2020/1419 Sch. 1 para. 61(4) – s. 181(2) repealed by S.I. 2007/288 (N.I.) Sch. 2

Communications Act 2003 (c. 21) Document Generated: 2021-03-19

889

– s. 186(3)(b) word substituted by S.I. 2019/246 Sch. 1 para. 37 (This amendment not applied to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

– s. 186(3)(b) word substituted by S.I. 2020/1419 Sch. 1 para. 79 – s. 189 omitted by S.I. 2019/246 Sch. 1 para. 38 – s. 191(1)(a) word inserted by S.I. 2019/246 Sch. 1 para. 39(a) – s. 191(1)(b) and word omitted by S.I. 2019/246 Sch. 1 para. 39(b) – s. 197(2) omitted by S.I. 2019/246 Sch. 1 para. 40 (This S.I. is amended by S.I.

2020/1419, Sch. 2 para. 4(2)(j)) – s. 197(2) words substituted by S.I. 2020/1419 Sch. 1 para. 62(2) – s. 197(3) omitted by S.I. 2020/1419 Sch. 1 para. 62(3) – s. 211(2)(b)(c) substituted by S.I. 2019/224 Sch. 1 para. 20(2) – s. 211(3)(b) substituted by S.I. 2019/224 Sch. 1 para. 20(3) – s. 218(1) words inserted by 2010 c. 24 s. 28(2)(b) – s. 218(1) words substituted by 2010 c. 24 s. 28(2)(a) – s. 218(7) words repealed by 2010 c. 24 s. 28(3)(b)Sch. 2 – s. 218(7) words substituted by 2010 c. 24 s. 28(3)(a) – s. 221 repealed by 2010 c. 24 s. 28(5)Sch. 2 – s. 245(5)(c) words substituted by S.I. 2019/224 Sch. 1 para. 23 – s. 276(1) words substituted by 2010 c. 24 s. 28(6) – s. 299(1)(3)(4) coming into force by S.I. 2003/3142 art. 4(3) (Art. 4(3) is omitted

(8.6.2004) by virtue of S.I. 2004/1492, art. 2) – s. 300 coming into force by S.I. 2003/3142 art. 4(3) (Art. 4(3) is omitted (8.6.2004)

by virtue of S.I. 2004/1492, art. 2) – s. 329(7)(b)(i) words substituted by S.I. 2019/224 Sch. 1 para. 25 – s. 335A substituted by S.I. 2019/224 Sch. 1 para. 27 – s. 362 words substituted by 2010 c. 24 s. 28(7) – s. 362(1) words inserted by S.I. 2019/224 Sch. 1 para. 28(b) – s. 362(1) words omitted by S.I. 2019/224 Sch. 1 para. 28(a) – s. 368A(1)(d) word omitted by S.I. 2019/224 Sch. 1 para. 29(a) – s. 368B(1) word substituted by S.I. 2010/419 reg. 3(1) – s. 368B(6) word substituted by S.I. 2010/419 reg. 3(2) – s. 368C(2) omitted by 2017 c. 30 s. 93(3) – s. 368E(5) word omitted by 2017 c. 30 s. 94(2) – s. 368E(6) words inserted by 2017 c. 30 s. 94(4) – s. 368E(7) words inserted by 2017 c. 30 s. 94(5) – s. 368G(2) word substituted by S.I. 2010/419 reg. 6 – s. 368O(3) omitted by S.I. 2019/224 Sch. 1 para. 30 – s. 368S(2)(d) substituted by S.I. 2020/1536 reg. 4(2) – s. 371(2)(a) word inserted by S.I. 2019/93 Sch. 1 para. 11(2)(a) (This amendment not

applied to legislation.gov.uk. Sch. 1 para. 11(2) substituted immediately before IP completion day by S.I. 2020/1343, regs. 1(1), 23(2))

– s. 371(2)(b) word inserted by S.I. 2019/93, Sch. 1 para. 11(2)(a) (as substituted) by S.I. 2020/1343 reg. 23(2)

– s. 371(2)(c) omitted by S.I. 2019/93 Sch. 1 para. 11(2)(b) (This amendment not applied to legislation.gov.uk. Sch. 1 para. 11(2) substituted immediately before IP completion day by S.I. 2020/1343, regs. 1(1), 23(2))

– s. 371(2)(c) substituted for s. 371(2)(c)(d) by S.I. 2019/93, Sch. 1 para. 11(2)(b) (as substituted) by S.I. 2020/1343 reg. 23(2)

– s. 371(2)(d) omitted by S.I. 2019/93 Sch. 1 para. 11(2)(b) (This amendment not applied to legislation.gov.uk. Sch. 1 para. 11(2) substituted immediately before IP completion day by S.I. 2020/1343, regs. 1(1), 23(2))

– s. 393(6)(aza) words substituted by S.I. 2019/246 Sch. 1 para. 41 – s. 401(5)(g) words substituted by 2016 c. 25 Sch. 10 para. 101(2) (This amendment

not applied to legislation.gov.uk. S. 401(3) already substituted for s. 401(3)-(5) (31.7.2017) by Digital Economy Act 2017 (c. 30), ss. 100(5), 118(6); S.I. 2017/765, reg. 2(bb))

– s. 402(2)(aa) substituted by 2021 c. 7 Sch. para. 3(a)

890 Communications Act 2003 (c. 21) Document Generated: 2021-03-19

– s. 402(2A) words substituted by 2021 c. 7 Sch. para. 3(b)(i) – s. 403(6) words substituted by S.I. 2020/1419 Sch. 1 para. 63 – s. 405(1) words inserted by S.I. 2020/1419 Sch. 1 para. 64(a) – s. 405(1) words inserted by S.I. 2020/1419 Sch. 1 para. 64(b) – s. 405(1) words omitted by S.I. 2019/246 Sch. 1 para. 42(a) – s. 405(1) words omitted by S.I. 2019/246 Sch. 1 para. 42(b) – Sch. 3A Pt. 10 applied by 2021 c. 2 Sch. 32 para. 33(1) – Sch. 3A Pt. 6 excluded by 2021 c. 2 Sch. 32 para. 33(2) – Sch. 3A para. 10(4) words inserted by 2021 c. 7 Sch. para. 4(2)(b) – Sch. 3A para. 12(2) words inserted by 2021 c. 7 Sch. para. 4(3) – Sch. 3A para. 19(a) words inserted by 2021 c. 7 Sch. para. 4(4)(b) – Sch. 3A para. 20(2)(a) words inserted by 2021 c. 7 Sch. para. 4(5) – Sch. 3A para. 26(6) words inserted by 2021 c. 7 Sch. para. 4(7)(b) – Sch. 3A para. 27(6) words inserted by 2021 c. 7 Sch. para. 4(8) – Sch. 3A para. 108(1) words inserted by 2021 c. 7 Sch. para. 4(12)(b) – Sch. 3A para. 10(1) words substituted by 2021 c. 7 Sch. para. 4(2)(a) – Sch. 3A para. 19(a) words substituted by 2021 c. 7 Sch. para. 4(4)(a) – Sch. 3A para. 108(1) words substituted by 2021 c. 7 Sch. para. 4(12)(a) – Sch. 6 para. 13 words substituted by S.I. 2005/886 Sch. para. 95 – Sch. 8 para. 7 words inserted by S.I. 2020/1419 Sch. 1 para. 65 – Sch. 11 para. 6(6) words inserted by S.I. 2019/93 Sch. 1 para. 11(4) – Sch. 11 para. 6(7)(a) words inserted by S.I. 2019/93 Sch. 1 para. 11(5)(a) – Sch. 11 para. 6(7)(a) words substituted by S.I. 2019/93 Sch. 1 para. 11(5)(b) – Sch. 11 para. 6(7)(a) words substituted in earlier amending provision S.I. 2019/93,

Sch. 1 para. 11(5) by S.I. 2020/1343 reg. 23(3) – Sch. 11A para. 6(3)(b) words substituted by S.I. 2019/224 Sch. 1 para. 31 – Sch. 15 para. 63 and cross-heading repealed by 2010 c. 24 Sch. 2 – Sch. 17 para. 70 repealed by 2016 c. 25 Sch. 10 Pt. 8 – Sch. 18 para. 13(5) words substituted by S.I. 2019/246 Sch. 1 para. 43 – specified provision(s) amendment to earlier commencing SI 2003/1900, art. 3(2) by

S.I. 2003/3142 art. 1(3) – specified provision(s) amendment to earlier commencing SI 2003/3142 by S.I.

2004/1492 art. 2 – specified provision(s) amendment to earlier commencing SI 2003/3142 by S.I.

2004/697 art. 2 – specified provision(s) amendment to earlier commencing SI 2003/3142 art. 4 Sch. 2

by S.I. 2004/545 art. 2

Changes and effects yet to be applied to the whole Act associated Parts and Chapters: Whole provisions yet to be inserted into this Act (including any effects on those provisions): – s. 3(4)(ea) inserted by S.I. 2019/246 Sch. 1 para. 2 – s. 3(4)(eb) inserted by S.I. 2020/1419 Sch. 1 para. 2(2) – s. 4(9)(aa)-(ac) substituted for word by S.I. 2020/1419 Sch. 1 para. 3(3) – s. 4(10A) inserted by S.I. 2020/1419 Sch. 1 para. 3(5) – s. 4(10A) word substituted by S.I. 2020/1419 Sch. 1 para. 67(4) – s. 4(12A)(12B) inserted by S.I. 2020/1419 Sch. 1 para. 3(7) – s. 25(1)(b)(iii) inserted by S.I. 2019/246 Sch. 1 para. 7(2)(b)(iii) – s. 32(2)-(2B) substituted for s. 32(2) by S.I. 2020/1419 Sch. 1 para. 6 – s. 32A inserted by S.I. 2020/1419 Sch. 1 para. 7 – s. 33(5)(ca)(cb) inserted by S.I. 2020/1419 Sch. 1 para. 8(c) – s. 38(6)(ea)-(ec) inserted by S.I. 2020/1419 Sch. 1 para. 9 – s. 45(2)(b)(ia) inserted by S.I. 2020/1419 Sch. 1 para. 10(2) – s. 45(4A) inserted by S.I. 2020/1419 Sch. 1 para. 10(3) – s. 46(5A) inserted by S.I. 2020/1419 Sch. 1 para. 11(2) – s. 46(6)(aa)(ab) substituted for word by S.I. 2020/1419 Sch. 1 para. 11(3)

Communications Act 2003 (c. 21) Document Generated: 2021-03-19

891

– s. 46(8A) inserted by S.I. 2020/1419 Sch. 1 para. 11(4) – s. 47(4) inserted by S.I. 2020/1419 Sch. 1 para. 12 – s. 48A(2A) inserted by S.I. 2020/1419 Sch. 1 para. 13(2) – s. 51(2)(ba) inserted by S.I. 2020/1419 Sch. 1 para. 19(3) – s. 51(2B) inserted by S.I. 2020/1419 Sch. 1 para. 19(4) – s. 51(8)(9) inserted by S.I. 2020/1419 Sch. 1 para. 19(5) – s. 65(2BA)-(2BC) inserted by S.I. 2020/1419 Sch. 1 para. 22(4) – s. 65(6) inserted by S.I. 2020/1419 Sch. 1 para. 22(7) – s. 67(3A) inserted by S.I. 2019/246 Sch. 1 para. 21(3) – s. 68(2A) inserted by S.I. 2020/1419 Sch. 1 para. 24 – s. 72C-72I and cross-heading inserted by S.I. 2020/1419 Sch. 1 para. 29 – s. 73(2)(bza) inserted by S.I. 2020/1419 Sch. 1 para. 30(2) – s. 73(4A) inserted by S.I. 2020/1419 Sch. 1 para. 30(3) – s. 74(2A)-(2D) inserted by S.I. 2020/1419 Sch. 1 para. 31(2) – s. 74A74B inserted by S.I. 2020/1419 Sch. 1 para. 32 – s. 74A(5)(a) words substituted by S.I. 2020/1419 Sch. 1 para. 71 – s. 75(2A) inserted by S.I. 2019/224 Sch. 1 para. 19(3) (This amendment not applied

to legislation.gov.uk. Sch.1 para. 19(2)(b)(3) omitted (21.12.2020) by virtue of S.I. regs. 1(2), Sch. 2 para. 3)

– s. 75(2A) inserted by S.I. 2020/1419 Sch. 1 para. 72(3) – s. 75(2B) inserted by S.I. 2020/1419 Sch. 1 para. 33(3) – s. 79(1A) inserted by S.I. 2019/246 Sch. 1 para. 24(2) – s. 79(2A)-(2C) inserted by S.I. 2020/1419 Sch. 1 para. 35 – s. 79(2C) omitted by S.I. 2020/1419 Sch. 1 para. 73(4) – s. 79(2BA) inserted by S.I. 2020/1419 Sch. 1 para. 73(3) – s. 79(2ZA) inserted by S.I. 2020/1419 Sch. 1 para. 73(2) – s. 79(6A) inserted by S.I. 2020/1419 Sch. 1 para. 73(5) – s. 84A(7)(8) substituted for s. 84A(7) by S.I. 2019/246 Sch. 1 para. 31(5) (This

amendment not applied to legislation.gov.uk. Amending provision omitted (21.12.2020) by virtue of S.I. 2020/1419, reg. 1(2), Sch. 2 para. 4(2))

– s. 84A(7)(8) substituted for s. 84A(7) by S.I. 2020/1419 Sch. 1 para. 74 – s. 87(3A) inserted by S.I. 2020/1419 Sch. 1 para. 41(2) – s. 87(4)(ba)(bb) inserted by S.I. 2020/1419 Sch. 1 para. 41(3)(a) – s. 88(1)(b)(iv) inserted by S.I. 2020/1419 Sch. 1 para. 42(2)(iii) – s. 88(1A) inserted by S.I. 2020/1419 Sch. 1 para. 42(3) – s. 91A and cross-heading inserted by S.I. 2020/1419 Sch. 1 para. 43 – s. 91A(3) words substituted by S.I. 2020/1419 Sch. 1 para. 75 – s. 93A-93D and cross-heading inserted by S.I. 2020/1419 Sch. 1 para. 44 – s. 93B(6) inserted by S.I. 2020/1419 Sch. 1 para. 76 – s. 93C(6) omitted by S.I. 2020/1419 Sch. 1 para. 77 – s. 96A(8) inserted by S.I. 2020/1419 Sch. 1 para. 45 – s. 100(8) inserted by S.I. 2020/1419 Sch. 1 para. 49 – s. 104(1)(aa) inserted by S.I. 2020/1419 Sch. 1 para. 52(2)(a) – s. 124O and cross-heading inserted by 2010 c. 24 s. 19 – s. 124P124Q inserted by 2010 c. 24 s. 20(1) – s. 124Q(7)(a) words substituted by 2013 c. 22 Sch. 9 para. 52 – s. 124R inserted by 2010 c. 24 s. 21 – s. 124U-124W and cross-heading inserted by S.I. 2020/1419 Sch. 1 para. 54 – s. 134B(1)(j) inserted by S.I. 2020/1419 Sch. 1 para. 57(d) – s. 134B(1)(fa) inserted by S.I. 2020/1419 Sch. 1 para. 57(a) – s. 134AC inserted by S.I. 2020/1419 Sch. 1 para. 56 – s. 135(2)(g) inserted by S.I. 2020/1419 Sch. 1 para. 58(2) – s. 135(3)(fa) inserted by S.I. 2020/1419 Sch. 1 para. 58(3) – s. 135(3B) inserted by S.I. 2020/1419 Sch. 1 para. 58(4) – s. 144(6) inserted by S.I. 2020/1419 Sch. 1 para. 59 – s. 192(1)(d)(iia) inserted by 2010 c. 24 s. 20(2) – s. 211(4)(5) inserted by S.I. 2019/224 Sch. 1 para. 20(4) – s. 211A211B inserted by S.I. 2019/224 Sch. 1 para. 21

892 Communications Act 2003 (c. 21) Document Generated: 2021-03-19

– s. 211A(2)(a) words substituted in earlier amending provision S.I. 2019/224, Sch. 1 para. 21 by S.I. 2020/1536 reg. 5(5)

– s. 235(8) inserted by S.I. 2019/224 Sch. 1 para. 22 – s. 319(2)(ha) inserted by S.I. 2019/224 Sch. 1 para. 24 – s. 319(2)(ha) words substituted in earlier amending provision S.I. 2019/224, Sch. 1

para. 24 by S.I. 2020/1536 reg. 5(6) – s. 335(2A)(2B) inserted by S.I. 2019/224 Sch. 1 para. 26 – s. 368A(1)(e)(f) substituted for s. 368A(1)(e) by S.I. 2019/224 Sch. 1 para. 29(b) – s. 368E(5)(d)(e) inserted by 2017 c. 30 s. 94(3) – s. 368S(3)-(9) inserted by S.I. 2020/1536 reg. 4(3) – s. 368BA(4) inserted by S.I. 2020/1062 reg. 26 – s. 402(2A)(a)(b) inserted by 2021 c. 7 Sch. para. 3(b)(ii) – Sch. 3A Pt. 4A inserted by 2021 c. 7 s. 1 – Sch. 3A para. 23(2A) inserted by 2021 c. 7 Sch. para. 4(6) – Sch. 3A para. 26(1A)(1B) inserted by 2021 c. 7 Sch. para. 4(7)(a) – Sch. 3A para. 37(3)(aa) inserted by 2021 c. 7 Sch. para. 4(9) – Sch. 3A para. 84(1)(aa) inserted by 2021 c. 7 Sch. para. 4(10) – Sch. 3A para. 95(1)(aa) inserted by 2021 c. 7 Sch. para. 4(11) – Sch. 11 para. 6(7A) inserted by S.I. 2019/93 Sch. 1 para. 11(6) – Sch. 11 para. 6A inserted by S.I. 2019/93 Sch. 1 para. 11(7) – Sch. 11 para. 6(7A) words substituted in earlier amending provision S.I. 2019/93,

Sch. 1 para. 11(6) by S.I. 2020/1343 reg. 23(4) – Sch. 11 para. 6A words substituted in earlier amending provision S.I. 2019/93, Sch.

1 para. 11(7) by S.I. 2020/1343 reg. 23(5)


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