Communications Act 2003 (c. 21)

(The document as of February, 2008)

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(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 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.

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.

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;

(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;

(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.

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.

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

(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.

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.

(2) A service is not to be treated as available for reception by members of the public if each of the three conditions set out in subsections (3) to (5) is satisfied.

(3) The first condition is that the service is confined to the provision of a facility--

(a) for the making by users of the service of individual selections of the material to be received; and

(b) for receiving whatever is selected.

(4) The second condition is that it is only in response to a selection made by a user of the service that anything (whether encrypted or not)--

(a) is broadcast from a satellite or by means of a multiplex service; or

(b) is otherwise transmitted by means of an electronic communications network.

(5) The third condition is that the individual selections that may be made do not include any that are limited to electing to be one of the recipients of material that is or has been offered for reception on the basis--

(a) that it is material selected by the provider of the service for the purpose of being made available for broadcasting or distribution simultaneously, or virtually so, to an audience consisting of users of the service; and

(b) that it will be broadcast or distributed simultaneously, or virtually so, to every member of the audience (if any) that consists of the users of the service who have elected to receive it.

(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;

(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.

(9) In this section "multiplex service" means a television multiplex service, a radio multiplex service or a general multiplex service.

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" means 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;
"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;
"EEA State" means the United Kingdom or any other State that is a contracting party to the Agreement on the European Economic Area signed at Oporto on 22nd May 1992, as adjusted by the Protocol signed at Brussels on 17th March 1993, 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);
"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--
(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 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;
(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;
"the Television without Frontiers Directive" means Council Directive 89/552/EEC on the Co-ordination of certain provisions laid down by law, regulation or administrative action in member States concerning the pursuit of television broadcasting activities, together with any modifications of that Directive by Directive 97/36/EC of the European Parliament and the Council;
"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;

(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;

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--

(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;

(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.

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.

(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,

(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.

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;

(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 the Wireless Telegraphy Act 1949 (c. 54)) with wireless telegraphy.

(3) The restrictions and conditions subject to which a TV licence may be issued do not include--

(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.

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.

(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 must be established; and

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