Communications Act 2003 (c. 21)

(The document as of February, 2008)

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(a) for the means by which an entitlement to a concession must be established; and

(b) for the payment of sums by means of an instalment scheme set out in the regulations.

(5) The reference to a concession in subsection (4) 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.

(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.

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

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;

(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

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

367 Interpretation of provisions about dealer notification

(1) Section 6 of the Wireless Telegraphy Act 1967 (interpretation of provisions requiring notification of sale and hire of television sets) shall be amended as follows.

(2) In subsection (1), for the definitions of "television dealer", "television programme" and "television set" there shall be substituted--

" "television dealer" means a person of any description specified in regulations made by the Secretary of State setting out the descriptions of persons who are to be television dealers for the purposes of this Part;

"television set" 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 sets for the purposes of this Part. "

(3) After that subsection there shall be inserted--

" (1A) Regulations under subsection (1) defining a television set may provide for references to such a set to include references to software used in association with apparatus. "

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.

(3) References in this Part to using a television receiver are references to using it for receiving television programmes.

(4) The power to make regulations under this section defining a television receiver includes power to modify subsection (3).

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;

(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.

(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.

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 Office of Fair Trading.

(2) This subsection applies to the functions of the Office of Fair Trading under Part 4 of the Enterprise Act 2002 (market investigations) (other than sections 166 and 171) so far as relating to commercial activities connected with communications matters.

(3) So far as necessary for the purposes of, or in connection with, subsections (1) and (2), references in Part 4 of the Enterprise Act 2002 to the Office of Fair Trading (including references in provisions of that Act applied by that Part) shall be construed as including references to OFCOM except--

(a) in sections 166 and 171; 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) Before the Office of Fair Trading 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 Office of Fair Trading 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 the Competition Commission in carrying out an investigation on a reference made to them by OFCOM by virtue of subsection (1), to give to the Commission--

(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 Commission for that purpose, or

(ii) is information which, in OFCOM's opinion, it would be appropriate for that purpose to give to the Commission without any such request;

and

(b) any other assistance which the Commission may require, and which it is within OFCOM's power to give, in relation to any such matters,

and the Commission, for the purposes of carrying out any such investigation, shall take into account any information given to it for that purpose under this subsection.

(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 Office of Fair Trading.

(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 Office of Fair Trading included references to OFCOM.

(11) Subject to subsection (12), section 3 does 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 section 3(1) to (4) if it is a matter to which the Office of Fair Trading is entitled to have regard in the carrying out of those functions.

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 Office of Fair Trading.

(2) This subsection applies to the functions of the Office of Fair Trading under the provisions of Part 1 of the Competition Act 1998 (c. 41) (other than sections 38(1) to (6) and 51) so far as relating to--

(a) agreements, decisions or concerted practices which are of the kind mentioned in section 2(1) of that Act (agreements, decisions or practices affecting trade and having as their object or effect the prevention, restriction or distortion of competition) and which relate to activities connected with communications matters; or

(b) conduct which is of the kind mentioned in section 18(1) of that Act (conduct abusing a dominant position) and relates to such activities.

(3) So far as necessary for the purposes of, or in connection with, the provisions of subsections (1) and (2), references to the Office of Fair Trading in Part 1 of the Competition Act 1998 are to be read as including references to OFCOM, except--

(a) in sections 38(1) to (6), 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 Office of Fair Trading 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 Office of Fair Trading, the functions of the Office of Fair Trading under any of paragraphs 3, 7, 19(3) and 36 to 39 of Schedule 13 to the Competition Act 1998 (transitional provisions).

(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 Office of Fair Trading.

(11) Subject to subsection (12), section 3 does not apply in relation to anything done by OFCOM in the carrying out of their functions by virtue of this section.

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")--

(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".

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.

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.

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.

(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 " .

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). "

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.

(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. "

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 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

(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

(5) For the purposes of subsection (4) the decision-making authority may treat broadcasting as being the subject of different forms of provision 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.

(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. "

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. "

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--

" 61A Additional investigation and report by OFCOM: certain media mergers

(1) Subsection (2) applies where--

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