Communications Act 2003 (c. 21)

(The document as of February, 2008)

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(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;

(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;

(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 for the purposes of the Television without Frontiers 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.

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.

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

(6) In this section "cable package" and "multiplex service" each has the same meaning as in section 330.

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--

(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.

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.

(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.

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.

(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.

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;

(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.

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.

(3) The direction may specify the times at which the announcement is to be broadcast or otherwise transmitted.

(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

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.

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--

(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 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 Race Relations Act 1976 (c. 74) 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.

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.

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--

(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.

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.

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);

(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;

(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.

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. "

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.

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. "

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.

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--

(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.

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