Communications Act 2003 Part 1 Functions of OFCOM Transferred and assigned functions Functions and general powers of OFCOM 1 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— 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. Transfer of functions of pre-commencement regulators 2 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. 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. Strategic priorities Statement of strategic priorities 2A 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. 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). Duties of OFCOM in relation to strategic priorities 2B 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. Consultation and parliamentary procedure 2C 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 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 General duties of OFCOM 3 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. g the adequate protection of citizens from harm presented by content on regulated services, through the appropriate use by providers of such services of systems and processes designed to reduce the risk of such harm. 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. 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 the public service remit for television in the United Kingdom (as defined in section 264) ; b the desirability of promoting competition in relevant markets; c (subject to subsection (5A)) 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; ea the desirability of ensuring the security and availability of public electronic communications networks and public electronic communications services; eb the desirability of ensuring that relevant markets facilitate end-to-end connectivity in the interests of consumers in those markets; 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. 4A In performing their duties under subsection (1) in relation to matters to which subsection (2)(g) is relevant, OFCOM must have regard to such of the following as appear to them to be relevant in the circumstances— a the risk of harm to citizens presented by regulated services; b the need for a higher level of protection for children than for adults; c the need for it to be clear to providers of regulated services how they may comply with their duties set out in Chapter 2, 3, 4 or 5 of Part 3, Chapter 1, 3 or 4 of Part 4, or Part 5 of the Online Safety Act 2023; d the need to exercise their functions so as to secure that providers of regulated services may comply with such duties by taking measures, or using measures, systems or processes, which are (where relevant) proportionate to— i the size or capacity of the provider in question, and ii the level of risk of harm presented by the service in question, and the severity of the potential harm; e the desirability of promoting the use by providers of regulated services of technologies which are designed to reduce the risk of harm to citizens presented by content on regulated services; f the extent to which providers of regulated services demonstrate, in a way that is transparent and accountable, that they are complying with their duties set out in Chapter 2, 3, 4 or 5 of Part 3, Chapter 1, 3 or 4 of Part 4, or Part 5 of the Online Safety Act 2023. 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. 5A Subsection (4)(c) does not apply in relation to the carrying out of any of OFCOM’s online safety functions. 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. 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. 6ZA Where it appears to OFCOM, in relation to the carrying out of any of their online safety functions, that any of their general duties conflict with their duty under section 24, 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 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; “ content on regulated services ” means— regulated user-generated content present on regulated services, search content of regulated services, fraudulent advertisements present on regulated services, and regulated provider pornographic content present on regulated services; “end-to-end connectivity” has the meaning given by section 74(3); “ general duties ”, in relation to OFCOM, means— their duties under subsections (1) to (5); and 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; “ online safety functions ” has the meaning given by section 235 of the Online Safety Act 2023, except that it does not include OFCOM’s general duties; “ relevant markets ” means markets for any of the services, facilities, apparatus or directories in relation to which OFCOM have functions. 15 In this section the following terms have the same meaning as in the Online Safety Act 2023— “ content ” (see section 236 of that Act); “ fraudulent advertisement ” (see sections 38 and 39 of that Act); “ harm ” (see section 234 of that Act); “ provider ”, in relation to a regulated service (see section 226 of that Act); “ regulated user-generated content ” (see section 55 of that Act); “ regulated provider pornographic content ” (see section 79 of that Act); “ regulated service ” (see section 4 of that Act); “ search content ” (see section 57 of that Act). Duties in relation to certain regulatory functions 4 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 requirements set out in the following provisions of this section . 3 The first ... 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 The second requirement is a requirement to promote the interests of all members of the public in the United Kingdom . 6 The third 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. 6A The third 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 b the review, variation or removal of such a limitation. 7 The fourth 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 ...; ... aa efficient investment and innovation; and b the maximum benefit for the persons who are customers of communications providers and of persons who make associated facilities available. 9 The fifth requirement is a requirement to encourage such compliance with the standards mentioned in subsection (10) as is necessary for— a facilitating service interoperability; aa facilitating end-to-end connectivity; ab facilitating the changing by end-users of their communications provider; ac facilitating the retention by end-users of their telephone numbers after a change of communications provider; 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 by the European Commission in accordance with Article 17 of the Framework Directive or Article 39 of the EECC Directive (whether before or after IP completion day) ; b the standards and specifications from time to time adopted by— i the European Committee for Standardisation; ii the European Committee for Electrotechnical Standardisation; and 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; ... iia the European Conference of Postal and Telecommunications Administrations; and iii the International Electrotechnical Committee. 10A The sixth requirement is a requirement to promote connectivity and access to very high capacity networks by members of the public and businesses in the United Kingdom. 11 Where it appears to OFCOM that any of the six requirements in this section 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— ... “end-to-end connectivity” has the meaning given by section 74(3); “ network access ” and “ service interoperability ” each has the same meaning as in Chapter 1 of Part 2. “telephone number” has the meaning given by section 56(5). 12A In this Act “very high capacity network” means an electronic communications network which— a consists wholly of optical fibre elements at least up to the distribution point at the serving location; or b is capable of delivering, under usual peak-time conditions, network performance that, in OFCOM’s opinion, is similar, in terms of available downlink and uplink bandwidth, resilience, error-related parameters and latency and its variation, to the network performance of a network falling within paragraph (a). 12B For the purposes of subsection (12A)(b), network performance can be considered similar regardless of whether the end-user experience varies due to the inherently different characteristics of the medium by which the network ultimately connects with the network termination point. 13 In this section and sections 4A and 5, “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, as amended by Directive 2009/140/EC of the European Parliament and of the Council. ... European Commission recommendations for harmonisation 4A 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 may take account of recommendations issued by the European Commission under Article 19(1) of the Framework Directive or Article 38(1) of the EECC Directive (including recommendations issued before the coming into force of this section or after IP completion day) if the recommendations appear to OFCOM to be relevant to those functions. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions in respect of networks and spectrum functions 5 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. 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 would have required 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. 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. 7 Subsection (4) does not affect the Secretary of State’s powers under section 132. Duties to review regulatory burdens 6 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 (except their online safety functions) 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. 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. 11 In this section “ online safety functions ” has the same meaning as in section 3. Duty to carry out impact assessments 7 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 Subject to subsection (2A), 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. 2A A proposal to do any of the following is important for the purposes of this section— a to prepare a code of practice under section 41 of the Online Safety Act 2023; b to prepare amendments of such a code of practice; or c to prepare a code of practice as a replacement for such a code of practice. 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. 4A An assessment under subsection (3)(a) that relates to a proposal mentioned in subsection (2A) must include an assessment of the likely impact of implementing the proposal on small businesses and micro businesses. 4B An assessment under subsection (3)(a) that relates to a proposal to do anything else for the purposes of, or in connection with, the carrying out of OFCOM’s online safety functions (within the meaning of section 235 of the Online Safety Act 2023) must, so far as the proposal relates to such functions, include an assessment of the likely impact of implementing the proposal on small businesses and micro businesses. 5 An assessment carried out under this section— a may take such form, and b must relate to such matters, as OFCOM consider appropriate. 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. Duty to publish and meet promptness standards 8 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 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. Secretary of State’s powers in relation to promptness standards 9 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. Accessible domestic communications apparatus Duty to encourage availability of easily usable apparatus 10 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 ... 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. Media literacy Duties to promote media literacy 11 A1 In this section— a subsection (1) imposes duties on OFCOM which apply in relation to material published by means of the electronic media (including by means of regulated services), and b subsections (1A) to (1E) expand on those duties, and impose further duties on OFCOM, in relation to regulated services only. 1 It shall be the duty of OFCOM to take such steps, and to enter into such arrangements, as appear to them calculated— 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. 1A OFCOM must take such steps, and enter into such arrangements, as they consider most likely to be effective in heightening the public’s awareness and understanding of ways in which they can protect themselves and others when using regulated services, in particular by helping them to— a understand the nature and impact of harmful content and the harmful ways in which regulated services may be used, especially content and activity disproportionately affecting particular groups, including women and girls; b reduce their and others’ exposure to harmful content and to the use of regulated services in harmful ways, especially content and activity disproportionately affecting particular groups, including women and girls; c use or apply— i features included in a regulated service, including features mentioned in section 15(2) of the Online Safety Act 2023, and ii tools or apps, including tools such as browser extensions, so as to mitigate the harms mentioned in paragraph (b); d establish the reliability, accuracy and authenticity of content; e understand the nature and impact of disinformation and misinformation, and reduce their and others’ exposure to it; f understand how their personal information may be protected. 1B OFCOM must take such steps, and enter into such arrangements, as they consider most likely to encourage the development and use of technologies and systems for supporting users of regulated services to protect themselves and others as mentioned in paragraph (a), (b), (c), (d) or (e) of subsection (1A), including technologies and systems which— a provide further context to users about content they encounter; b help users to identify, and provide further context about, content of democratic importance present on regulated user-to-user services; c signpost users to resources, tools or information raising awareness about how to use regulated services so as to mitigate the harms mentioned in subsection (1A)(b). 1C OFCOM’s duty under subsection (1A) is to be performed in the following ways (among others)— a pursuing activities and initiatives, b commissioning others to pursue activities and initiatives, c taking steps designed to encourage others to pursue activities and initiatives, and d making arrangements for the carrying out of research (see section 14(6)(a)). 1D OFCOM must draw up, and from time to time review and revise, a statement recommending ways in which others, including providers of regulated services, might develop, pursue and evaluate activities or initiatives relevant to media literacy in relation to regulated services. 1E OFCOM must publish the statement and any 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. 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. 3 In this section and in section 11A, “ regulated service ” means— a a regulated user-to-user service, or b a regulated search service. “ Regulated user-to-user service ” and “ regulated search service ” have the same meaning as in the Online Safety Act 2023 (see section 4 of that Act). 4 In this section— a “ content ”, in relation to regulated services, means regulated user-generated content, search content or fraudulent advertisements; b the following terms have the same meaning as in the Online Safety Act 2023— “ content of democratic importance ” (see section 17 of that Act); “ fraudulent advertisement ” (see sections 38 and 39 of that Act); “ harm ” (see section 234 of that Act) (and “harmful” is to be interpreted consistently with that section); “ provider ” (see section 226 of that Act); “ regulated user-generated content ” (see section 55 of that Act); “ search content ” (see section 57 of that Act). Regulated services: media literacy strategy and media literacy statement 11A 1 OFCOM must prepare and publish a media literacy strategy within the period of one year beginning with the day on which the Online Safety Act 2023 is passed. 2 A media literacy strategy is a plan setting out how OFCOM propose to exercise their functions under section 11 in the period covered by the plan, which must be not more than three years. 3 In particular, a media literacy strategy must state OFCOM’s objectives and priorities for the period it covers. 4 Before the end of the period covered by a media literacy strategy, OFCOM must prepare and publish a media literacy strategy for a further period, ensuring that each successive strategy covers a period beginning immediately after the end of the last one. 5 In preparing or revising a media literacy strategy, OFCOM must consult such persons as they consider appropriate. 6 OFCOM’s annual report must contain a media literacy statement. 7 A media literacy statement is a statement by OFCOM— a summarising what they have done in the financial year to which the report relates in the exercise of their functions under section 11, and b assessing what progress has been made towards achieving the objectives and priorities set out in their media literacy strategy in that year. 8 A media literacy statement must include a summary and an evaluation of the activities and initiatives pursued or commissioned by OFCOM in the exercise of their functions under section 11 in the financial year to which the report relates. 9 The first annual report that is required to contain a media literacy statement is the report for the financial year during which OFCOM’s first media literacy strategy is published, and that first statement is to relate to the period from publication day until the end of that financial year. 10 But if OFCOM’s first media literacy strategy is published during the second half of a financial year— a the first annual report that is required to contain a media literacy statement is the report for the next financial year, and b that first statement is to relate to the period from publication day until the end of that financial year. 11 References in this section to OFCOM’s functions under section 11 are to those functions so far as they relate to regulated services. 12 In this section— “ annual report ” means OFCOM’s annual report under paragraph 12 of the Schedule to the Office of Communications Act 2002; “ financial year ” means a year ending with 31 March. OFCOM’s Content Board Duty to establish and maintain Content Board 12 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, 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 of the S4C Board and employees of S4C ; 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. Functions of the Content Board 13 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 Subject to subsection (3A), 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. 3A OFCOM may, but need not, confer on the Content Board functions in relation to matters that concern the nature or kind of online content in relation to which OFCOM have functions under the Online Safety Act 2023 (see Parts 3 and 5 of that Act). 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. 8 In this section references to “matters mentioned in subsection (2)” do not include references to the matters mentioned in subsection (3A). Functions for the protection of consumers Consumer research 14 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 the 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. 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) , (1A) and (1B) ; 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. 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. 6B OFCOM must make arrangements for ascertaining— a the state of public opinion from time to time concerning providers of regulated services and their manner of operating their services; b the experiences of United Kingdom users of regulated services in relation to their use of such services; c the experiences of United Kingdom users of regulated user-to-user services and regulated search services in relation to the handling of complaints made by them to providers of such services; and d the interests and experiences of United Kingdom users of regulated services in relation to matters that are incidental to or otherwise connected with their experiences of using such services. 6C OFCOM’s report under paragraph 12 of the Schedule to the Office of Communications Act 2002 for each financial year must contain a statement by OFCOM about the research that has been carried out in that year under subsection (6B). 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. 8A In subsection (6B) the following terms have the same meaning as in the Online Safety Act 2023— “ provider ” (see section 226 of that Act); “regulated service”, “regulated user-to-user service” and “ regulated search service ” (see section 4 of that Act); “ United Kingdom user ” (see section 227 of that Act). 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. Duty to publish and take account of research 15 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. Consumer consultation 16 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 (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 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 a 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 services 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; ... da regulated services; 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. 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. 5A As regards OFCOM’s functions under the Online Safety Act 2023 in relation to regulated services— a the reference in subsection (5) to “the contents” of a thing includes a reference to specific pieces of online content, but b subsection (5) is not to be read as preventing the Consumer Panel from being able to give advice about any matter that more generally concerns— i different kinds of online content in relation to which OFCOM have functions under that Act (see Parts 3 and 5 of that Act), and ii the impact that different kinds of such content may have on United Kingdom users of regulated services. 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. 12A OFCOM’s report under paragraph 12 of the Schedule to the Office of Communications Act 2002 for each financial year must contain a statement by OFCOM about the arrangements for consultation that have been made in that year under this section, so far as the arrangements relate to regulated services. 13 In this section— “ domestic and small business consumer ” means a person who— 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 a service or facility mentioned in subsection (4)(a) to (e) ; but is neither— a communications provider or a person who makes associated facilities available or a provider of a regulated service ; nor 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— 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 a facility for obtaining access, in whole or in part, to the programme service or services listed or promoted in the guide. 14 In this section the following terms have the same meaning as in the Online Safety Act 2023— “ provider ”, in relation to a regulated service (see section 226 of that Act); “ regulated service ” (see section 4 of that Act); “ United Kingdom user ” (see section 227 of that Act). Membership etc. of the Consumer Panel 17 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, 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. 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— 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 an employee of Citizens Advice . 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 . 4BC 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 a member or a member of staff of Consumer Scotland, and b is nominated for the purposes of this subsection by Consumer Scotland after consultation with OFCOM. 4BD Only one person may, at any time, be a member of the Consumer Panel appointed in accordance with a direction under subsection (4BC); but that does not prevent OFCOM appointing as a member of the Consumer Panel any person who is also a member or member of staff of Consumer Scotland. 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. 4D A person appointed in accordance with a direction under subsection (4BC) ceases to be a member of the Consumer Panel— a on ceasing to be a member or, as the case may be, a member of staff of Consumer Scotland, or b if Consumer Scotland decides 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 subsections (3) to (4A) , (4BA) and (4BC) . 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). 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. Committees and other procedure of the Consumer Panel 18 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. 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. Power to amend remit of Consumer Panel 19 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. Advisory committees Advisory committees for different parts of the United Kingdom 20 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. 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. Advisory committee on elderly and disabled persons 21 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. International matters Representation on international and other bodies 22 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— functions relating to the use of the electro-magnetic spectrum for wireless telegraphy; functions relating to the regulation of television or radio broadcasting or the provision of television and radio services ; ... functions relating to postal services; and 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— the use of the electro-magnetic spectrum for wireless telegraphy; the regulation of television or radio broadcasting or of the provision of television and radio services; the regulation of postal services; any other matter in respect of which OFCOM have functions. 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. Directions for international purposes in respect of broadcasting functions 23 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. General information functions Provision of information to the Secretary of State 24 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. Provision of information before publication 24A 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. 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— OFCOM publish the information; 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. Provision of information to assist in formulation of policy 24B 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, ... e Part 3 of the Postal Services Act 2011, or f the Online Safety Act 2023, 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. 3 But subsection (2) does not prevent OFCOM providing the Secretary of State with any information that they consider may assist the Secretary of State in the formulation of policy in relation to the security of public electronic communications networks or public electronic communications services. 4 Subsection (2) does not apply to information— a obtained by OFCOM— i in the exercise of a power conferred by section 100 of the Online Safety Act 2023 for the purpose mentioned in subsection (6)(c) of that section (information in connection with a consultation about a threshold figure for the purposes of charging fees under that Act), or ii in the exercise of a power conferred by section 175(5) of that Act (information in connection with circumstances presenting a threat), and b reasonably required by the Secretary of State. Information requested by EU bodies 25 1 This section applies if— a the European Commission or BEREC requests 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— i Part 2; ... ii the enactments relating to the management of the radio spectrum that are not contained in that Part ; or iii any other enactment relating to the regulation of electronic communications networks and electronic communications services. 2 OFCOM may comply with the request if and to the extent that— a they consider it appropriate to do so in connection with their functions, and b in the case of information relating to a particular business, they are satisfied that arrangements exist for preserving confidentiality. 3 If information provided to the European Commission or BEREC 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 or, as the case may be, to BEREC . 4 It shall be for OFCOM to determine the manner in which a notification is given under subsection (3). Publication of information and advice for consumers etc. 26 1 OFCOM must 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; 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; ... 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. da United Kingdom users of regulated services; e the customers of persons who provide postal services. 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 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. 7 In this section the following terms have the same meaning as in the Online Safety Act 2023— “ regulated service ” (see section 4 of that Act); “ United Kingdom user ” (see section 227 of that Act). Employment in broadcasting Training and equality of opportunity 27 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. 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 the Equality Act 2010 or, in Northern Ireland, the Disability Discrimination Act 1995 (c. 50); “ racial group ” has the same meaning as in the Race Relations Act 1976 (c. 74) Equality 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. Charging General power to charge for services 28 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; 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. International recognition of satellite frequency assignments: power to charge fees 28A 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— the period beginning with the coming into force of this section and ending with the next 31st March, or any subsequent period of twelve months beginning with 1st April; “ the ITU Radio Regulations ” means the radio regulations of the International Telecommunication Union. Guarantees Secretary of State guarantees for OFCOM borrowing 29 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— 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. Provisions supplemental to transfer of functions Transfers of property etc. from pre-commencement regulators 30 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. 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. Transitional functions and abolition of pre-commencement regulators 31 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). Part 2 Networks, services and the radio spectrum Chapter 1 Electronic communications networks and services Preliminary Meaning of electronic communications networks and services 32 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; ... iii software and stored data ; 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 of any of the types specified in subsection (2A) provided by means of an electronic communications network, except so far as it is a content service. 2A Those types of service are— a an internet access service; b a number-based interpersonal communications service; and c any other service consisting in, or having as its principal feature, the conveyance of signals, such as a transmission service used for machine-to-machine services or for broadcasting. 2B In subsection (2A)(a) “internet access service” means a service that provides access to the internet and thereby connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used. 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 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. Meaning of number-based interpersonal communications service 32A 1 In this Chapter “number-based interpersonal communications service” means an interpersonal communications service which— a connects with publicly assigned numbering resources, namely a number or numbers in a national or international numbering plan, or b enables communication with a number or numbers in a national or international numbering plan. 2 In subsection (1), “interpersonal communications service” means a service which enables direct interpersonal and interactive exchange of information by means of electronic communications networks between a finite number of persons, where the persons initiating or participating in the communication determine its recipient. Notification by providers Advance notification to OFCOM 33 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 , including a short description of the network, service or facility ; b the time when it is intended that effect should be given to the relevant proposal; c particulars identifying the person giving the notification , including the person’s legal status and, in the case of a body corporate, details of its incorporation ; ca the address of the person’s main establishment and, if that is outside the United Kingdom, of any secondary establishment in the United Kingdom; cb the person’s website address, where applicable, associated with the provision of electronic communications networks or services; 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f addresses and other particulars necessary for effecting service on or contacting each of the persons mentioned in paragraphs (c) and (d) . 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; 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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; .... 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. Designations and requirements for the purposes of s. 33 34 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. Notification of contraventions of s. 33 35 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; ... 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 e specifies any penalty which OFCOM are minded to impose in accordance with section 35A. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalties for contravention of section 33 35A 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. 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. Confirmation decision for contravention of s. 33 36 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. 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. 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 a confirmation decision has been given to comply with any 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. 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. Penalties for contravention of s. 33 37 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Administrative charges imposed on providers Fixing of charges 38 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— 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)(l); 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; ea their functions under sections 93A to 93D; eb the monitoring of compliance with commitments that are made binding by a commitments decision; ec . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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; 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. 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. Supplemental provision about fixing charges 39 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. 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. Notification of non-payment of charges 40 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 making representations about the notified determination . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 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. 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalties for non-payment of charges 41 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; ... 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. 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 without 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). Suspending service provision for non-payment 42 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 serious 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; 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; c that , 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 , in the case of a repeated contravention, an attempt, by the imposition of penalties under section 41, to secure such compliance has failed; and 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. 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— 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 24 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. Enforcement of directions under s. 42 43 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— 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 96A 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. Register of providers required to notify or to pay charges Duty of OFCOM to keep publicly accessible register 44 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. 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). Conditions of entitlement to provide network or service etc. Power of OFCOM to set conditions 45 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; ia a social tariff 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. 4A A social tariff condition is a condition which contains only provision authorised by section 72F. 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 91 ; 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 89A . 9 An SMP apparatus condition is a condition containing only provisions authorised by section 93. 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. Persons to whom conditions may apply 46 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. 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. 5A A social tariff condition may be applied— a generally to every person providing a public electronic communications service; b generally to every person providing such a service of a particular description specified in the condition; or c to a particular person specified in the condition. 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; aa in the case of a condition falling within section 74(2A), must be— i a person providing a public electronic communications network; or ii the owner of a line or associated facility; ab in the case of a condition falling within section 74A, must be a person who provides an electronic communications network; 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 89A . 8A A person whom OFCOM have previously determined to be a person having significant market power in a services market but whom OFCOM determine no longer to be a person having significant market power in that market is to be treated as continuing to fall within subsection (8) for so long as OFCOM consider necessary to ensure a sustainable transition for those benefitting from obligations imposed on that person as a result of the previous determination. 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”). Test for setting or modifying conditions 47 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 (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. 3 Subsection (2)(a) does not apply in relation to the setting of a general condition. 4 This section does not apply in relation to the setting or modification of a social tariff condition in accordance with a direction under section 72D(7). Procedure for setting, modifying and revoking conditions 48 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. 2 Where section 48A applies, OFCOM must comply with the applicable requirements of that section ... 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. 2B Where OFCOM propose to extend or make permanent any such temporary conditions, modification or revocation— a section 48A does not apply in relation to the proposal; ... b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 In the case of a proposal by OFCOM with respect to an SMP condition, the applicable requirements of sections 79 to 86 must also be complied with. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 The publication of a notification under this section or 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 or section 48A . Consultation for section 45 conditions 48A 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 ... 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. 2A This section also does not apply to the proposed setting, modification or revocation of a social tariff condition. 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 30 days 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 ... OFCOM may then give effect to the proposal , with any modifications that appear to OFCOM to be appropriate. EU consultation for section 45 conditions 48B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Delivery of copies of notifications etc. in respect of section 45 conditions 48C 1 OFCOM must send to the Secretary of State a copy of every notification published under section 48(1) or 48A(3). 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions and approvals for the purposes of a s. 45 condition 49 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 (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 The 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 (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. 2A Subsection (2)(a) does not apply in relation to a direction, approval or consent affecting a general condition. 3 Where 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 requirements set out in section 4. 4 Where section 49A applies, the applicable requirements of that section ... 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 section 49A does not apply in relation to the proposal; ... b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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); and b whether OFCOM is of the opinion mentioned in section 49A(2); ... c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4D OFCOM must immediately determine any question so referred to them. Consultation for directions, approvals and consents 49A 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 ... 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; 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 30 days 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 ... 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. EU consultation for directions, approvals and consents 49B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Delivery of copies of notifications etc. in respect of directions, approvals and consents 49C 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Delivery of copies of notifications etc. 50 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General conditions: subject-matter Matters to which general conditions may relate 51 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 or 72H ; e conditions requiring ... 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; ... b provide protection for such end-users that is the same as, or similar to, any protection that was, immediately before IP completion day, required by Title 3 of Part 3 of the EECC Directive (end-user rights); ba relate to any of the elements of a bundled contract; 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; 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; ... 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. i specify requirements in relation to arrangements that enable an end-user to change communications provider on request. 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2B The power to set general conditions falling within subsection (1)(b) includes power to require negotiations relating to service interoperability or network access to be conducted through an intermediary who— a is independent of the parties; and b is either appointed by the parties with the approval of OFCOM or appointed by OFCOM. 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 91 , 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 ... 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 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. 8 In this Chapter “bundled contract” means a contract, or two or more closely related or linked contracts, between the provider of a public electronic communications service and a qualifying end-user, which— a relates, or together relate, to the provision of at least one of the following— i an internet access service; and ii a number-based interpersonal communications service; and b also relates, or together also relate, to the provision of at least one of the following— i another service falling within paragraph (a)(i) or (ii); ii any other public electronic communications service; iii an information society service; iv a content service; and v terminal equipment. 9 In subsection (8)— “content service” has the meaning given by section 32(7); “information society service” is to be read in accordance with Article 1(1)(b) of Directive (EU) 2015/1535 of the European Parliament and of the Council of 9 September 2015 laying down a procedure for the provision of information in the field of technical regulations and of rules on Information Society services (codification); “internet access service” has the meaning given by section 32(2B); “qualifying end-user” means an end-user who is— an individual acting for purposes other than those of a business; acting in the course of a business which is carried on by the end-user, and for which no more than 10 individuals work, whether as employees or volunteers or otherwise; a not-for-profit body for which no more than 10 individuals work, whether as employees or otherwise but excluding volunteers. General conditions: customer interests Conditions relating to customer interests 52 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 , 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 , where the complaint relates to contractual conditions, or to the performance of a contract for the supply of an electronic communications network or service ; c the provision of remedies and redress in respect of matters that form the subject-matter of such complaints or disputes; 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 , 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). Approval of codes of practice for the purposes of s. 52 53 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. Approval of dispute procedures for the purposes of s. 52 54 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 , 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— 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. Orders by OFCOM in the absence of conditions under s. 52 55 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; ... ii . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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; 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. General conditions: telephone numbers The National Telephone Numbering Plan 56 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; ... 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. 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. 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. Conditions for limitations on allocation of telephone numbers 56A 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. Conditions to secure access to telephone numbers 57 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— 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. Conditions about allocation and adoption of numbers 58 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; 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 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. 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. 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. Telephone numbering conditions binding non-providers 59 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. 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. Modification of documents referred to in numbering conditions 60 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— 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 30 days 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— general conditions the making of which is authorised by section 57 or 58; 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. Withdrawal of telephone number allocations 61 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. 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 serious 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 30 days 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). 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— 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 confirmation 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. Numbering reorganisations 62 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— 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. General duty as to telephone numbering functions 63 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. General conditions: must-carry obligations Must-carry obligations 64 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 (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. 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. 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. Universal service conditions Obligations to be secured by universal service conditions 65 1 The Secretary of State must by order ... set out the extent to which the things falling within subsection (2) must ... be provided, made available or supplied throughout the United Kingdom. 2 Those things are— a electronic communications networks and electronic communications services; and b facilities capable of being made available as part of or in connection with an electronic communications service; c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 at a fixed location 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. 2BA The universal service order may in particular say that mobile services must be provided to any extent, but may not do so unless this appears to the Secretary of State necessary to ensure the full social and economic participation in society of qualifying end-users. 2BB In subsection (2BA)— a “mobile services” means— i broadband services provided otherwise than at a fixed location; and ii telephone services provided otherwise than at a fixed location; b “qualifying end-user” means an end-user who is— i an individual acting for purposes other than those of a business; ii a micro, small or medium-sized enterprise, as defined by Article 2(1) of the Annex to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises; or iii a not-for-profit body. 2BC The universal service order may continue to contain provision setting out the extent to which any of the following things must be provided, made available or supplied throughout the United Kingdom— a public pay telephone or other public voice telephony access points; b particular methods of billing for electronic communications services or of accepting payment for them; c directories capable of being used in connection with the use of an electronic communications network or electronic communications service; d directory enquiry facilities capable of being used for purposes connected with the use of such a network or service; e publicly available telephone services capable of allowing end-users to send and receive facsimile. 2C The universal service order may contain— a guidance about matters relating to the speed to be provided by broadband connections or services at a fixed location 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 , other than matters relating only to social tariffs as defined by section 72F(2) . 4 Before making or varying the universal service order, the Secretary of State must consult OFCOM and such other persons as he considers appropriate. 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. 6 In this section “public pay telephone” means a telephone available to the general public, for the use of which the means of payment may include one or more of the following— a coins; b credit or debit cards; and c pre-payment cards, including cards for use with dialling codes. Designation of universal service providers 66 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 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. Subject-matter of universal service conditions 67 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. 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; and b requires information so published to satisfy the requirements that OFCOM consider appropriate for securing that it is adequate; ... c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3A A condition set in accordance with that subsection may require the information published in accordance with it to be framed by reference to such international standards specified in the condition as OFCOM consider appropriate. 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 ... that is contained in the universal service order. 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 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). Tariffs etc. for universal services 68 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. 2A The special tariffs that may be required by virtue of subsection (2)(b) do not include social tariffs as defined by section 72F(2). 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 or, where there is no designated 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. Directories and directory enquiry facilities 69 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. Review of compliance costs: universal service conditions 70 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. Sharing of burden of universal service obligations 71 1 This section applies where OFCOM— 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 b communications providers to whom general conditions are applicable. 9 Section 403 applies to the powers of OFCOM to make regulations under this section. Report on sharing mechanism: universal service obligations 72 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 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. Review of universal service order 72A 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 .... 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. Broadband download speeds: duty to give direction under section 72A 72B 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 at a fixed location 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). Further duty to review tariffs Duty to review certain tariffs that are not universal service tariffs 72C 1 It is the duty of OFCOM— a to keep under review qualifying service tariffs, other than— i universal service tariffs; or ii tariffs available only to end-users who are carrying on a business; and b to monitor changes to those tariffs. 2 The reference in subsection (1) to qualifying service tariffs is a reference to the tariffs used by the providers of qualifying services. 3 In this section— “qualifying services” means— broadband services at a fixed location; telephone services at a fixed location; and mobile services, as defined by section 65(2BB)(a); “tariff” includes a pricing structure. Social tariff conditions Social tariff conditions: procedure 72D 1 The Secretary of State may direct OFCOM— a to review the affordability of qualifying services for individuals on low incomes or with special social needs, with a view to considering whether to recommend to the Secretary of State the setting of a social tariff condition; and b to report to the Secretary of State on the results of the review. 2 OFCOM may in their report recommend— a the setting of a social tariff condition to be applied— i generally to every person providing a public electronic communications service; ii generally to every person providing a public electronic communications service of a particular description specified in the report; or iii to a particular person (or particular persons) specified in the report; or b the modification or revocation of a social tariff condition. 3 OFCOM may recommend the application of a social tariff condition to a particular person (or particular persons) specified in their report only in exceptional circumstances, in particular where the application of a social tariff condition to all providers of public electronic communications services of a particular description would result in an excessive administrative or financial burden on those providers, on OFCOM or on any government department. 4 The Secretary of State may give guidance to OFCOM as to the matters to which OFCOM are to have regard— a in carrying out a review under subsection (1)(a); and b in making a recommendation under subsection (2). 5 OFCOM must not recommend the setting or modification of a social tariff condition unless they are satisfied that the condition or (as the case may be) the modification satisfies the test in section 47(2). 6 Where section 72E does not apply to the recommendation because of subsection (2) of that section— a the recommendation must relate to a social tariff condition that is to be temporary, or to a temporary modification or revocation; b the recommendation must state the period for which it is proposed that the condition, or the modification or revocation, should have effect; and c section 72E does not apply in relation to any recommendation by OFCOM in relation to the extension or making permanent of the temporary condition, modification or revocation. 7 The Secretary of State may direct OFCOM to implement any recommendation made under subsection (2). 8 The Secretary of State must publish— a a direction given under subsection (1) or (7); and b guidance given under subsection (4). 9 OFCOM must publish any report made under subsection (1)(b). 10 In this section “qualifying services” has the same meaning as in section 72C. Consultation by OFCOM on proposed recommendation 72E 1 This section applies where— a OFCOM propose to recommend the setting, modification or revocation of a social tariff condition; and b the implementation of the proposed recommendation 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 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— a stating that they are proposing to recommend the setting, modification or revocation of the social tariff condition specified in the notification; b setting out the effect of that condition, modification or revocation; c giving their reasons for proposing the recommendation; and d specifying the period within which representations may be made to OFCOM about their proposal. 4 That period must end no less than 30 days 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 consider every representation about the proposal made to them during the period specified in the notification. 7 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. Social tariff conditions: general 72F 1 The only provision that may be contained in a social tariff condition set under section 45 is provision requiring the use in relation to a qualifying service, in such cases as may be specified or described in the condition, of such social tariffs as may be so specified or described. 2 For this purpose a “social tariff” is a special tariff that differs from the tariff provided under normal commercial conditions and is available to an individual who meets criteria relating to low income or special social needs. 3 A social tariff condition may not be set, modified or revoked under section 45 except in accordance with a direction under section 72D(7). 4 Subsection (3) does not apply to modifications that in the opinion of OFCOM— a relate only to matters of administration; and b are minor in character. 5 If by virtue of subsection (4) OFCOM modify a social tariff condition under section 45 in the absence of a direction under section 72D(7), they must, when publishing a notification of the modification under section 48(1), send a copy of the notification to the Secretary of State. 6 In this section “qualifying service” and “tariff” each has the same meaning as in section 72C. Review of compliance costs: social tariff conditions 72G 1 OFCOM may from time to time review the extent (if any) of the financial burden for a particular communications provider of complying in relation to any matter with a social tariff condition applied to the provider. 2 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 communications provider from the application to the provider of the social tariff condition. 3 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 the communications providers who are subject to the social tariff condition; or b themselves carry out an audit of those calculations. 4 OFCOM must ensure, in the case of every audit carried out under subsection (3), that a report on the audit— a is prepared; and b if not prepared by OFCOM, is provided to them. 5 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. 6 The publication of anything under subsection (5) 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. Sharing of burden of social tariff obligations 72H 1 This section applies where OFCOM— a have concluded, on a review under section 72G, that complying in relation to any matter with social tariff conditions imposes a financial burden on a particular communications provider (“the social tariff provider”); and b have published that conclusion in accordance with that section. 2 OFCOM must determine, in the case of the social tariff 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 social tariff 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 Subsections (4) to (9) of section 71 apply for the purposes of this section as if— a references to the designated universal service provider were references to the social tariff provider; b references to universal service conditions were references to social tariff conditions; c the reference to an application for the purposes of subsection (3)(b) of that section were a reference to an application for the purposes of subsection (3)(b) of this section; d references to contributions under subsection (3) of that section were references to contributions under subsection (3) of this section; e references to regulations made under that section were references to regulations made under subsections (4) to (7) of that section as applied by this subsection. Report on sharing mechanism: social tariff obligations 72I 1 This section applies where regulations made under section 71(4) to (7) as applied by section 72H(4) 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 a social tariff condition; b the market benefits for each communications provider to whom a social tariff condition applies that have accrued to that provider during that period from the application to the provider of the social tariff condition; and c the contribution made under section 72H(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) to (7) as applied by section 72H(4). 4 Every subsequent report must be prepared in relation to the period of 12 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 section 72(7) or (8); or b to publish anything that it would not be reasonably practicable to publish without disclosing such a matter. 7 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. Access-related conditions Permitted subject-matter of access-related conditions 73 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 efficiency ...; b sustainable competition ...; ... bza the bringing into operation, where OFCOM consider it appropriate, of very high capacity networks; 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 participate ... 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. 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. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4A Access-related conditions may include conditions permitted by section 74A. 5 Access-related conditions may include conditions containing any provision required by section 75(2). Specific types of access-related conditions 74 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. 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. 2A The conditions that may be set by virtue of section 73(2) also include conditions imposing on a person who provides an electronic communications network that includes a line or associated facility to which this subsection applies, or who owns such a line or associated facility, obligations for the purposes of giving to other persons such entitlements as OFCOM may from time to time direct as respects the availability and use of the line or associated facility in cases where OFCOM are satisfied that it would be economically inefficient or physically impracticable for those other persons to replicate the line or associated facility. 2B Subsection (2A) applies— a to a line or associated facility that is— i in a building, or ii between the network termination point as determined by OFCOM and the first concentration or distribution point as so determined; and b in a case where OFCOM consider, having regard where applicable to any analysis of a services market under section 79, that obligations imposed by virtue of paragraph (a) will not in their opinion sufficiently address high and non-transitory economic or physical barriers to replication which underlie an existing or emerging market situation significantly limiting competitive outcomes for end-users, to a line or associated facility that is outside a building beyond the first concentration or distribution point to a point determined by OFCOM to be the closest point to end-users that is capable of hosting a sufficient number of end-user connections to be commercially viable for those seeking access. 2C OFCOM may not apply a condition authorised by virtue of subsection (2B)(b) to a person providing an electronic communications network if— a the network concerned is not publicly funded and the person providing the network makes available a viable and similar alternative means of reaching end-users by providing any undertaking with access to a very high capacity network on fair, non-discriminatory and reasonable terms and conditions; or b the obligations would compromise the economic or financial viability of the bringing of a new network into operation. 2D The conditions authorised by subsection (2A) may include provision— a for securing fairness and reasonableness in the way in which requests for entitlements are made and responded to; 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; c requiring the person to whom the condition applies (“the relevant provider”) not to discriminate unduly against particular persons, or against a particular description of persons, in relation to matters connected with the entitlements mentioned in subsection (2A); d requiring the relevant 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; e requiring the relevant provider to publish, in such manner as OFCOM may from time to time direct, the terms and conditions on which the relevant provider is willing to enter into a contract giving the entitlements mentioned in subsection (2A); f requiring the terms and conditions on which the relevant provider is willing to enter into such a contract to include such terms and conditions as may be specified or described in the condition; g requiring the relevant provider to make such modifications as OFCOM may direct of any offer by that provider which sets out the terms and conditions on which that provider is willing to enter into such a contract; h imposing rules about the apportionment and recovery of costs. 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— 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 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— for different end-users of the same public electronic communications service to be able to communicate with each other; and 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. “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. 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). Access-related conditions in certain cases involving use of radio spectrum 74A 1 OFCOM may apply a condition falling within subsection (2) to a person who provides an electronic communications network (“the host network”) if it appears to OFCOM that— a in a particular local area within the United Kingdom (“the relevant area”), access by end-users to electronic communications services which depend on the use of wireless telegraphy is unavailable or severely restricted; b the unavailability or restriction results from the physical characteristics of the relevant area or from other characteristics of the relevant area that tend to make the bringing into operation of infrastructure uneconomic; c the provider of the host network has not made network access available on fair and reasonable commercial terms and conditions to other persons providing electronic communications services; and d when granting or varying the wireless telegraphy licence relating to the host network, OFCOM had made clear the possibility that a requirement to provide network access or to enter into wholesale roaming access agreements might subsequently be imposed. 2 A condition falling within this subsection is one requiring the provider of the host network— a to provide network access in relation to network elements which are not active; or b to enter into wholesale roaming access agreements relating to the relevant area or any part of the relevant area, on such terms and conditions as may be specified or described in the condition, in response to a request meeting specified requirements. 3 If OFCOM are satisfied as to the matters in subsection (1) but it appears to them that in the circumstances a condition falling within subsection (2) does not suffice to address the situation, OFCOM may also apply a condition requiring the provider of the host network to provide network access in relation to network elements which are active. 4 The conditions authorised by subsection (2) or (3) may include any provision mentioned in subsection (2D) of section 74, reading references in that subsection to subsection (2A) of that section as references to subsection (2) or (3) of this section (as the case requires). 5 In exercising their powers under this section, OFCOM must have regard to— a the need to maximise the coverage and availability of electronic communications services throughout the United Kingdom , along major transport paths and in particular territorial areas; b the desirability of significantly increasing choice, and improving the quality of service, for end-users; c the desirability of promoting the efficient use of radio spectrum; d the technical feasibility of network access and associated conditions; e the extent of infrastructure-based and service-based competition in the market concerned; f the desirability of promoting technological innovation; g the need to maintain incentives for investment in infrastructure. 6 In this section “a wholesale roaming access agreement” means an agreement between the provider of the host network and the provider of a public electronic communications service that depends on the use of wireless telegraphy (“the roaming provider”) for the purpose of enabling public electronic communications services to be provided in the relevant area to the customers of the roaming provider. Review of access-related conditions 74B 1 This section applies to a condition set by virtue of section 73(2) or (4A) and applied to a particular person, so long as the condition remains in force, but does not apply to a condition required by section 75(2). 2 OFCOM must within the specified period review the results of imposing the obligations in question and consider whether the condition should be modified or revoked. 3 OFCOM must, as soon as reasonably practicable after complying with subsection (2), publish— a a report on the review, and b if the review concludes that the condition should be modified or revoked, a notification under section 48(1) or, where section 48A applies, section 48A(3). 4 In this section “the specified period”, in relation to a condition, means the period of 5 years beginning with the latest of the following days— a the commencement of this section; b the date of the most recent notification under section 48(1) setting or modifying the condition; c the date of the most recent report under subsection (3)(a) in relation to the condition. Conditional access systems and access to digital services 75 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 ... in Part I of Annex 2 to the EECC Directive (conditions relating to access to digital programme services) as it had effect immediately before IP completion day . 2A For the purposes of subsection (2)(b), Part 1 of Annex 2 to the EECC Directive is to be read as if— a the reference to viewers and listeners in the Union were a reference to viewers and listeners in the United Kingdom; b the reference to member States were a reference to OFCOM; c the words “in accordance with Article 62” were omitted; d in point (a), the references to Union competition law were references to any provision relating to competition that is contained in or made under an enactment. 2B OFCOM may also apply access-related conditions to any person who provides a conditional access system in relation to services which are not protected programme services but appear to OFCOM to be complementary to protected programme services; and those conditions may contain any provision of the kind mentioned in subsection (2)(b). 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 subscription to the service or to a service that includes that service; or 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. Modification and revocation of conditions imposed under s. 75 76 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. Information about electronic communications apparatus available for shared use 76A 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. Privileged supplier conditions Imposition of privileged supplier conditions 77 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 £45 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 sterling 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— an electronic communications network; or an electronic communications service; “qualified auditor” means a person who— is eligible for appointment as a statutory auditor under Part 42 of the Companies Act 2006, and 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 Article 106 of the Treaty on the Functioning of the European Union . SMP conditions: procedure Circumstances required for the setting of SMP conditions 78 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 are to be construed, so far as it is appropriate to do so for the purposes of this Chapter, in the same way as the reference in section 18(1) of the Competition Act 1998 to a dominant position in a market. 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Market power determinations 79 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. 1A In identifying or analysing a services market for the purposes of this Chapter, OFCOM must conduct a forward-looking assessment of the market, taking into account expected or foreseeable developments that may affect competition in the market. 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2ZA In identifying or analysing a services market for the purposes of this Chapter, OFCOM may have regard to EECC materials relating to market identification and analysis. 2A In determining whether to identify a market for the purpose of considering whether to make a market power determination, OFCOM must consider whether the criteria in subsection (2B) are met; and OFCOM may not identify that market for that purpose unless they consider that the criteria are met. 2B Those criteria are— a that high and non-transitory structural, legal or regulatory barriers to entry are present; b that there is a market structure which, having regard to the state of infrastructure-based competition and other sources of competition behind the barriers to entry, does not tend towards effective competition within such period as OFCOM determine to be appropriate in relation to the review; c that competition law alone is insufficient adequately to address the identified market failure. 2BA In considering whether to make or revise a market power determination in relation to a services market, OFCOM may have regard to EECC materials relating to market analysis or the determination of what constitutes significant market power. 2C . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 6A In this section “ EECC materials ” means recommendations or guidelines published by the European Commission, and guidelines published by BEREC, under the Framework Directive or the EECC Directive (including those published after IP completion day). 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proposals for identifying markets and for market power determinations 80 1 Where section 80A applies, OFCOM must comply with the applicable requirements of that section ... 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 section 80A does not apply in relation to the proposal; ... b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Consultation for market identifications and market power determinations 80A 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 ... 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 30 days 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. 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 ... OFCOM may then give effect to the proposal , with any modifications that appear to OFCOM to be appropriate. EU consultation for market identifications and market power determinations 80B . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Delivery of copies of notifications under sections 79 and 80A 81 1 OFCOM must send to the Secretary of State a copy of every notification published under section 79(4) or 80A(3). 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . European Commission’s powers in respect of proposals 82 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special rules for transnational markets 83 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Review of services market identifications and determinations 84 1 This section applies where OFCOM have identified and analysed a services market for the purposes of making a market power determination. 2 OFCOM must, when required to do so by section 84A and at such other times as they may 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 a market power determination made on such a basis. 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 81 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. Timing of services market identifications and determinations 84A 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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; ... b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Subsection (3) applies only where the market power determination was made after 25 May 2011. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 In subsection (3), “ the specified period ” means the period of 5 years from the publication under section 79(4) of the notification of the market power determination made on the basis of the earlier analysis, but this is subject to subsection (8). 8 If, in relation to an analysis and review that would otherwise be required within the period mentioned in subsection (7), OFCOM are of the opinion that exceptionally a longer period is justified, OFCOM may, by publishing a statement of the reasons for their opinion, extend the specified period by up to one additional year. Review of apparatus market identifications and determinations 85 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, 80, 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. Cases where review required 86 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. SMP services conditions: subject-matter Conditions about network access etc. 87 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. 3A The assets as respects which entitlements may be given under subsection (3) include, in the case of assets which are not active, any which, although forming part of the relevant network or the relevant facilities, do not form part of the services market to which the determination relates. 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 (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; ba any technological developments that, in OFCOM’s opinion, are likely to affect the design and management of the relevant network or (as the case may be) the relevant facilities; bb the need to ensure that the provision of the proposed network access does not have the effect of favouring one form of technology over another in relation to the design and management of electronic communications networks; 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 (taking account of any public investment made) ; d the need to secure effective competition (including, where it appears to OFCOM to be appropriate, economically efficient infrastructure based competition) in the long term and to support innovative business models that support sustainable competition ; and e any rights to intellectual property that are relevant to the proposal; ... f . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 5A The SMP conditions authorised by this section also include a condition which— a is of a technical or operational nature; and 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. 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 contract for the provision by a person to whom this section applies to another person of network access to the relevant network; or 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. Conditions about network access pricing etc. 88 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 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; ... iii conferring the greatest possible benefits on the end-users of public electronic communications services having regard, where relevant to the market analysis, to the long-term interests of end-users in the use of next-generation networks; and iv where relevant to the market analysis, promoting the availability and use of new and enhanced networks. 1A Even if the tests in subsection (1)(a) and (b) are satisfied, OFCOM may consider not imposing an SMP condition if they consider— a that a demonstrable retail price constraint is present; and b that obligations imposed by SMP conditions not falling within section 87(9) ensure effective and non-discriminatory access. 2 In setting an SMP condition falling within section 87(9), OFCOM must take account of— a the extent of the investment in the matters to which the condition relates of the person to whom it is to apply; and b where the condition involves price controls on the provision of network access to existing network elements, the benefits of predictable and stable wholesale prices in ensuring— i efficient market entry; and ii sufficient incentives for all undertakings to bring into operation new and enhanced networks. 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. Conditions about network access in exceptional cases 89 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 ... Functional separation 89A 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. Functional separation conditions: matters to be considered by OFCOM 89B 1 This section applies where OFCOM propose to apply a functional separation condition to a person. 2 OFCOM must consider the expected impact of the condition on— a OFCOM; b the person on whom the condition is to be imposed; c the staff of the entity to which activities are to be transferred; d the electronic communications sector as a whole; e incentives to invest in the electronic communications sector, particularly with regard to the need to ensure social and territorial cohesion; f competition in the services market affected by the condition; and g other persons who in OFCOM's opinion are likely to be affected by the condition, including, in particular, consumers. 3 OFCOM must also consider— a evidence relevant to the conclusions mentioned in section 89A(1)(c) and (d); b whether there is little or no prospect of effective and sustainable infrastructure based competition within a reasonable timeframe; c whether a functional separation condition would be the most effective means of addressing important and persisting competition problems or market failures identified by OFCOM; and d the impact that the obligations contained in the condition 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. Obligation to notify OFCOM of voluntary separation 89C 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. Conditions about carrier selection and pre-selection 90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conditions about regulation of services etc. for end-users 91 1 Where— 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 89 . 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). 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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). SMP services conditions: wholesale-only undertakings SMP services conditions: wholesale-only undertakings 91A 1 Subsection (2) applies where— a OFCOM make or have made a market power determination that a person (“the dominant provider”) has significant market power in an identified services market; and b the dominant provider is not engaged in any of the following— i the provision of a public electronic communications network to end-users of public electronic communications services; ii the provision of a public electronic communications service to end-users; iii the making available of associated facilities to end-users of public electronic communications services. 2 OFCOM must consider whether the following tests are satisfied in the case of the dominant provider. 3 The first test is that none of the persons specified in subsection (4) has activities in any retail market for electronic communications services provided to end-users in the United Kingdom . 4 Those persons are— a the dominant provider; b any subsidiary undertaking or parent undertaking of the dominant provider; c any subsidiary undertaking of a parent undertaking of the dominant provider. 5 The second test is that the dominant provider is not bound to deal with a single and separate undertaking operating downstream that is active in any retail market for electronic communications services provided to end-users, because of an exclusive agreement, or an agreement which amounts in effect to an exclusive agreement. 6 If OFCOM are satisfied that both those tests are satisfied, OFCOM are not to apply to the dominant provider any SMP condition except one or more of the following— a a condition authorised by section 87(3); b a condition authorised by section 87(6)(a); c a condition which is authorised by section 87(9) and relates to fair and reasonable pricing in connection with the provision of network access to the dominant provider’s network. 7 Subsection (6) does not restrict OFCOM’s powers in a case where, by reason of the terms and conditions on which the dominant provider is willing to enter into an access contract, OFCOM conclude that competition problems have arisen or are likely to arise to the detriment of end-users. 8 The dominant provider must notify OFCOM as soon as reasonably practicable of any change in circumstances relevant to the application of the tests in subsections (3) and (5). 9 If, as a result of a notification under subsection (8) or otherwise, OFCOM determine that either of the tests in subsections (3) and (5) is no longer satisfied in relation to the dominant provider, OFCOM must consider whether to set or modify SMP conditions applying to the dominant provider. 10 In this section “parent undertaking” and “subsidiary undertaking” each has the meaning given by section 1162 of the Companies Act 2006. Conditions about leased lines 92 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . SMP apparatus conditions: subject-matter Conditions about apparatus supply 93 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. 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. Commitments by network provider Notification to OFCOM of proposed commitments 93A 1 This section applies where OFCOM have made, or are considering the making of, a determination that a person who provides a public electronic communications network (“the dominant provider”) has significant market power in an identified services market. 2 The dominant provider may notify OFCOM of a proposal to address the competition problems that are identified in the market power determination, or the possible competition problems that are identified in the proposal for a market power determination, by making commitments to provide network access to, or co-investment in, that network. 3 The proposal must— a be sufficiently detailed to enable OFCOM to undertake a detailed consideration under subsection (6); b specify the period during which the dominant provider is willing to be bound by the commitments; and c comply with such other requirements as OFCOM may publish for the purposes of this subsection. 4 If the proposal complies with subsection (3), OFCOM must publish a notification of the proposal. 5 The notification must— a state that OFCOM are considering whether to accept the proposed commitments; b set out the effect of the proposal and an initial analysis by OFCOM of the proposal; and c specify the period within which representations may be made to OFCOM about the proposal and analysis. 6 OFCOM must— a consider every representation about the proposal and analysis made to them during the period specified in the notification under subsection (5); b notify the dominant provider of their opinion— i that the proposal is adequate to address the competition problems, or possible competition problems, mentioned in subsection (2); or ii that if specified changes were made the proposal would be adequate to address those problems; or iii that for specified reasons the proposal is inadequate to address those problems; and c publish the notification given under paragraph (b). 7 The dominant provider may then revise the proposal in the light of OFCOM’s opinion. 8 If the dominant provider notifies OFCOM that the dominant provider is willing to implement the proposal, or the proposal as revised under subsection (7), OFCOM may decide to make the commitments binding, for such period as they may specify in the decision. 9 A decision under subsection (8) (referred to in this Chapter as a “commitments decision”) takes effect on being notified by OFCOM to the dominant provider and published by OFCOM. 10 The publication of a notification under this section must be in such manner as appears to OFCOM to be appropriate for bringing the notification to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the matters notified. Notification of proposed commitments relating to very high capacity network 93B 1 Section 93A has effect subject to the provisions of this section in a case where— a the dominant provider referred to in section 93A(1) proposes commitments which include a commitment to open up investment in a network to co-investment (“a co-investment commitment”); b the network is a very high capacity network which consists of optical fibre elements— i up to the premises of the end-user or, where this is technically impracticable, up to the immediate proximity of those premises; or ii up to the base station; and c the bringing into operation of the network was not publicly announced before 21 December 2018; d the dominant provider has notified OFCOM under subsection (2) of section 93A of a proposal complying with subsection (3) of that section. 2 OFCOM are not required to publish under section 93A(4) a notification complying with section 93A(5) in relation to the proposed co-investment commitment if in their opinion the proposal does not address all the matters specified in subsection (3) of this section. 3 In considering the proposed co-investment commitment under section 93A(6), OFCOM must, in particular, consider whether in their opinion the offer to co-invest satisfies the following requirements— a it is open at any moment during the lifetime of the network to any provider of electronic communications networks or services; b it would allow other co-investors who are providers of electronic communications networks or services to compete effectively and sustainably in the long term in downstream markets in which the dominant provider is active on terms which include— i fair, reasonable and non-discriminatory terms allowing access to the full capacity of the network to the extent that it is subject to co-investment; ii flexibility in terms of the value and timing of the participation of each co-investor; iii the possibility of increasing such participation in the future; iv reciprocal rights awarded by the co-investors after the bringing into operation of the co-invested infrastructure; c it is made public by the dominant provider in a timely manner and, if the dominant provider is not a wholesale-only undertaking, within such period of not less than 6 months before the bringing into operation of the new network as OFCOM consider appropriate; d persons seeking access to the network but not participating in the co-investment can benefit from the outset from the same quality, speed, conditions and end-user reach as were available before the bringing into operation of the network; e it is accompanied by a mechanism of adaptation over time, confirmed by OFCOM in light of developments on the related retail markets, that— i maintains the incentives to participate in the co-investment; and ii ensures that persons seeking access at any time have access to the very high capacity elements of the network on transparent and non-discriminatory terms which reflect appropriately the degrees of risk incurred by the respective co-investors at different stages of the bringing into operation of the network and take into account the competitive situation in retail markets; f it complies with— i the criteria set out in points (a) to (d) of Annex 4 to the EECC Directive; and ii any additional criteria that OFCOM consider necessary to ensure accessibility of potential investors to the co-investment and publish for the purposes of this section; and g it is made in good faith. 4 OFCOM must, by a commitments decision, make the co-investment commitment binding if— a in considering the proposal under section 93A(6), they determine that the co-investment commitment— i satisfies (or, if changes specified under section 93A(6) were made, would satisfy) the requirements in subsection (3); and ii is adequate (or, if changes so specified were made, would be adequate) to address the competition problems, or possible competition problems, mentioned in section 93A(2); and b the dominant provider notifies OFCOM under section 93A(8) in relation to the proposal (or, as the case requires, the proposal as revised under section 93A(7)). 5 In the case of a co-investment commitment, the period specified by OFCOM in a commitments decision must be at least 7 years. 6 In determining whether the requirements of subsection (3) are met, OFCOM may have regard to any guidelines that are from time to time published by BEREC under Article 76(4) of the EECC Directive (whether before or after IP completion day). Giving effect to commitments decision 93C 1 It is the duty of the dominant provider to comply with the commitments specified in a commitments decision during the period specified in the decision. 2 As soon as practicable after making a commitments decision in a case where SMP services conditions have been applied or would have been applied to the dominant provider, OFCOM must review the appropriateness, having regard to the commitments decision, of the conditions that have been or would have been applied. 3 In carrying out the review, the matters to which OFCOM are to have regard include— a evidence regarding the fair and reasonable character of the commitments; b whether the commitments involve obligations to all market participants; c whether the commitments promote the timely availability of access under fair, reasonable and non-discriminatory conditions, including access to very high capacity networks, before the launch of related retail services; d the overall adequacy of the commitments to enable sustainable competition on downstream markets and to facilitate co-operative deployment and take-up of very high capacity networks in the interests of end-users. 4 If, in the case of a commitment made binding as a result of section 93B(4), at least one person has entered into an agreement for co-investment with the dominant provider under the commitments decision, OFCOM must take steps to revoke or modify any SMP services conditions that they consider to be affected by the decision. 5 Subsection (4) does not apply where, in OFCOM’s opinion, the characteristics of the services market to which the determination referred to in section 93A(1) relates are such that, despite the commitments to which effect is given by the commitments decision, the SMP services condition continues to be necessary in order to address significant competition problems. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 In this section “dominant provider” means the person who made the proposal to which the commitments decision relates. Modification of commitments 93D 1 This section applies where a commitments decision has effect in relation to a person who provides a public electronic communications network (“the dominant provider”). 2 The dominant provider may notify OFCOM of a proposed modification of the commitments that are made binding by the commitments decision. 3 In a case where OFCOM consider that the modification would not have a material effect, they may make a decision under section 93A(8) relating to the commitments as proposed to be modified. 4 In any other case, OFCOM must notify the dominant provider of their opinion that the proposed modification would have a material effect; and subsections (2) to (10) of section 93A then apply in relation to the commitments as proposed to be modified. Enforcement of conditions Notification of contravention of SMP apparatus conditions 94 1 Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, an 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 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. 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. Enforcement notification for contravention of conditions 95 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. Penalties for contravention of conditions 96 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. Notification of contravention of condition other than SMP apparatus condition 96A 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. 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. 8 This section applies in relation to a commitment that is made binding by a commitments decision as it applies in relation to a condition (other than an SMP apparatus condition) set under section 45. Penalties for contravention of conditions 96B 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. Enforcement of notification under section 96A 96C 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. 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 or commitment 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 commitment or to 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. Amount of penalty under s. 96 or 96A 97 1 The amount of a penalty imposed under section 96 or 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 person ’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 a determination in relation to a penalty imposed under section 96 OFCOM must have regard to— a any representations made to them by the person ; 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 person as consists in any one or more of the following— the provision of an electronic communications network; the provision of an electronic communications service; the making available of associated facilities; the supply of directories for use in connection with the use of such a network or service; the making available of directory enquiry facilities for use for purposes connected with the use of such a network or service; 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 or of a commitment that is made binding by a commitments decision , means— 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 or 96A ; 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 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 b a contravention of an enforcement notification given under section 95 or a confirmation decision under section 96C relating to such a condition. 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power to deal with urgent cases 98 1 This section applies where OFCOM determine— a that they are entitled to give a notification under section 96A with respect to a contravention by a person (“the contravening provider”) of a condition set under section 45 or of a commitment that is made binding by a commitments decision , ...; 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 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. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 OFCOM shall ... 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. Confirmation of directions under s. 98 99 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 (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. 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. Suspending service provision for contraventions of conditions 100 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 person 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 person 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 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. 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— 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; 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 confirmation decision and the subsequent ones all relate to contraventions of the same condition (whether the same contravention or different contraventions). 8 This section applies in relation to a commitment that is made binding by a commitments decision as it applies in relation to a condition set under section 45, other than an SMP apparatus condition. Suspending service provision for breach of SMP services condition 100A 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 or of commitments that are made binding by a commitments decision ; 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 or commitment 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. Suspending apparatus supply for contraventions of conditions 101 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. 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). Procedure for directions under ss. 100 and 101 102 1 Except in an urgent case, or 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. 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 30 days 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. 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 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— “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. Enforcement of directions under ss. 98, 100 , 100A and 101 103 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 98(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. 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. Civil liability for breach of conditions or confirmation decision 104 1 The obligation of a person to comply with— a the conditions set under section 45 which apply to him, aa the person’s commitments that are made binding by a commitments decision, b requirements imposed on him by an enforcement notification under section 95, ... 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 , 100 or 100A , shall be a duty owed to every person who may be affected by a contravention of the condition , commitment 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 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 , commitment or requirement in question. 4 The consent of OFCOM is required for the bringing of proceedings by virtue of subsection (1)(a) or (aa) . 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. OFCOM’s duty to intervene on network access issues Consideration and determination of network access questions 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Security of public electronic communications networks and services Duty to take security measures 105A 1 The provider of a public electronic communications network or a public electronic communications service must take such measures as are appropriate and proportionate for the purposes of— a identifying the risks of security compromises occurring; b reducing the risks of security compromises occurring; and c preparing for the occurrence of security compromises. 2 In this Chapter “ security compromise ”, in relation to a public electronic communications network or a public electronic communications service, means— a anything that compromises the availability, performance or functionality of the network or service; b any unauthorised access to, interference with or exploitation of the network or service or anything that enables such access, interference or exploitation; c anything that compromises the confidentiality of signals conveyed by means of the network or service; d anything that causes signals conveyed by means of the network or service to be— i lost; ii unintentionally altered; or iii altered otherwise than by or with the permission of the provider of the network or service; e anything that occurs in connection with the network or service and compromises the confidentiality of any data stored by electronic means; f anything that occurs in connection with the network or service and causes any data stored by electronic means to be— i lost; ii unintentionally altered; or iii altered otherwise than by or with the permission of the person holding the data; or g anything that occurs in connection with the network or service and causes a connected security compromise. 3 But in this Chapter “ security compromise ” does not include anything that occurs as a result of conduct that— a is required or authorised by or under an enactment mentioned in subsection (4); b is undertaken for the purpose of providing a person with assistance in giving effect to a warrant or authorisation that has been issued or given under an enactment mentioned in subsection (4); c is undertaken for the purpose of providing a person with assistance in exercising any power conferred by or under prison rules; or d is undertaken for the purpose of providing assistance to a constable or a member of a service police force (acting in either case in that capacity). 4 The enactments are— a the Investigatory Powers Act 2016; b Part 1 of the Crime and Courts Act 2013; c the Prisons (Interference with Wireless Telegraphy) Act 2012; d the Regulation of Investigatory Powers Act 2000; e the Regulation of Investigatory Powers (Scotland) Act 2000; f the Intelligence Services Act 1994; g any other enactment (whenever passed or made) so far as it— i makes provision which is in the interests of national security; ii has effect for the purpose of preventing or detecting crime or of preventing disorder; or iii makes provision which is in the interests of the economic well-being of the United Kingdom so far as those interests are also relevant to the interests of national security. 5 In this section— “ connected security compromise ” means— in relation to a public electronic communications network, a security compromise that occurs in relation to another public electronic communications network or a public electronic communications service; in relation to a public electronic communications service, a security compromise that occurs in relation to a public electronic communications network or another public electronic communications service; “ crime ” and “ detecting crime ” have the same meanings as in the Investigatory Powers Act 2016; “ prison rules ” means any rules made under— section 47 of the Prison Act 1952; section 39 of the Prisons (Scotland) Act 1989; or section 13 of the Prison Act (Northern Ireland) 1953; “ service police force ” means— the Royal Navy Police; the Royal Military Police; or the Royal Air Force Police; “ signal ” has the same meaning as in section 32. Duty to take specified security measures 105B 1 The Secretary of State may by regulations provide that the provider of a public electronic communications network or a public electronic communications service must take specified measures or measures of a specified description. 2 A measure or description of measure may be specified only if the Secretary of State considers that taking that measure or a measure of that description would be appropriate and proportionate for a purpose mentioned in section 105A (1). 3 In this section “ specified ” means specified in the regulations. 4 Nothing in this section or regulations under it affects the duty imposed by section 105A. Duty to take measures in response to security compromises 105C 1 This section applies where a security compromise occurs in relation to a public electronic communications network or a public electronic communications service. 2 The provider of the network or service must take such measures as are appropriate and proportionate for the purpose of preventing adverse effects (on the network or service or otherwise) arising from the security compromise. 3 If the security compromise has an adverse effect on the network or service, the provider of the network or service must take such measures as are appropriate and proportionate for the purpose of remedying or mitigating that adverse effect. Duty to take specified measures in response to security compromise 105D 1 The Secretary of State may by regulations provide that, where a security compromise of a specified description occurs in relation to a public electronic communications network or a public electronic communications service, the provider of the network or service must take specified measures or measures of a specified description. 2 A measure or description of measure may be specified under subsection (1) only if the Secretary of State considers that taking that measure or a measure of that description would be appropriate and proportionate for the purpose of preventing adverse effects (on the network or service or otherwise) arising from a security compromise of the specified description. 3 The Secretary of State may by regulations provide that, where a security compromise occurs in relation to a public electronic communications network or a public electronic communications service and has an adverse effect of a specified description on the network or service, the provider of the network or service must take specified measures or measures of a specified description. 4 A measure or description of measure may be specified under subsection (3) only if the Secretary of State considers that taking that measure or a measure of that description would be appropriate and proportionate for the purpose of remedying or mitigating an adverse effect of the specified description. 5 In this section “ specified ” means specified in the regulations. 6 Nothing in this section or regulations under it affects the duty imposed by section 105C. Codes of practice about security measures etc 105E The Secretary of State may— a issue codes of practice giving guidance as to the measures to be taken under sections 105A to 105D by the provider of a public electronic communications network or a public electronic communications service; b revise a code of practice issued under this section and issue the code as revised; c withdraw a code of practice issued under this section. Issuing codes of practice about security measures 105F 1 Before issuing a code of practice under section 105E the Secretary of State— a must publish a draft of— i the code; or ii where relevant, the revisions of the existing code; b must consult the following about the draft— i OFCOM; ii providers of public electronic communications networks to whom the draft would apply; iii providers of public electronic communications services to whom the draft would apply; and iv such other persons as the Secretary of State considers appropriate; and c may make such alterations to the draft as the Secretary of State considers appropriate following the consultation. 2 Before issuing a code of practice under section 105E the Secretary of State must also lay a draft of the code before Parliament. 3 If, within the 40-day period, either House of Parliament resolves not to approve the draft of the code, the code may not be issued. 4 If no such resolution is made within that period, the code may be issued. 5 If the code is issued, the Secretary of State must publish it. 6 A code of practice comes into force at the time of its publication under subsection (5) , unless it specifies a different commencement time. 7 A code of practice may— a specify different commencement times for different purposes; b include transitional provisions and savings. 8 In this section, the “ 40-day period ”, in relation to a draft of a code, means 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 of Parliament on the same day, the later of the 2 days on which it is laid). 9 For the purposes of calculating the 40-day period, no account is to be taken of any period during which— a Parliament is dissolved or prorogued, or b both Houses are adjourned for more than 4 days. Withdrawing codes of practice about security measures 105G 1 Before withdrawing a code of practice under section 105E the Secretary of State must— a publish notice of the proposal to withdraw the code; and b consult the following about the proposal— i OFCOM; ii providers of public electronic communications networks to whom the code applies; iii providers of public electronic communications services to whom the code applies; and iv such other persons as the Secretary of State considers appropriate. 2 Where the Secretary of State withdraws a code of practice under section 105E the Secretary of State must— a publish notice of the withdrawal of the code; and b lay a copy of the notice before Parliament. 3 A withdrawal of a code of practice has effect at the time of the publication of the notice of withdrawal under subsection (2), unless the notice specifies a different withdrawal time. 4 A notice of withdrawal may— a specify different withdrawal times for different purposes; b include savings. Effects of codes of practice about security measures 105H 1 A failure by the provider of a public electronic communications network or a public electronic communications service to act in accordance with a provision of a code of practice does not of itself make the provider liable to legal proceedings before a court or tribunal. 2 In any legal proceedings before a court or tribunal, the court or tribunal must take into account a provision of a code of practice in determining any question arising in the proceedings if— a the question relates to a time when the provision was in force; and b the provision appears to the court or tribunal to be relevant to the question. 3 OFCOM must take into account a provision of a code of practice in determining any question arising in connection with the carrying out by them of a relevant function if— a the question relates to a time when the provision was in force; and b the provision appears to OFCOM to be relevant to the question. 4 In this section— “ code of practice ” means a code of practice issued under section 105E ; “ relevant function ” means a function conferred on OFCOM by any of the following provisions— section 105M (general duty of OFCOM to ensure compliance with security duties); section 105N (power of OFCOM to assess compliance with security duties); section 105O (power of OFCOM to give assessment notices); section 105S (enforcement of security duties); section 105U (enforcement of security duties: proposal for interim steps); section 105V (enforcement of security duties: direction to take interim steps). Duty to explain failure to act in accordance with code of practice 105I 1 This section applies where OFCOM have reasonable grounds for suspecting that the provider of a public electronic communications network or a public electronic communications service is failing, or has failed, to act in accordance with a provision of a code of practice issued under section 105E . 2 OFCOM may give a notification to the provider that— a specifies the provision of the code of practice; b specifies the respects in which the provider is suspected to be failing, or to have failed, to act in accordance with it; and c directs the provider to give to OFCOM a statement under subsection (3) or (4). 3 A statement under this subsection is a statement that— a confirms that the provider is failing, or has failed, in the respects specified in the notification to act in accordance with the provision of the code of practice; and b explains the reasons for the failure. 4 A statement under this subsection is a statement that— a states that the provider is not failing, or has not failed, in the respects specified in the notification to act in accordance with the provision of the code of practice; and b explains the reasons for that statement. 5 The provider must comply with a direction given under subsection (2)(c) within such reasonable period as may be specified in the notification. Duty to inform users of risk of security compromise 105J 1 This section applies where there is a significant risk of a security compromise occurring in relation to a public electronic communications network or a public electronic communications service. 2 The provider of the network or service must take such steps as are reasonable and proportionate for the purpose of bringing the relevant information, expressed in clear and plain language, to the attention of persons who use the network or service and may be adversely affected by the security compromise. 3 The relevant information is— a the existence of the risk of the security compromise occurring; b the nature of the security compromise; c the technical measures that it may be reasonably practicable for persons who use the network or service to take for the purposes of— i preventing the security compromise adversely affecting them; ii remedying or mitigating the adverse effect that the security compromise has on them; and d the name and contact details of a person from whom further information may be obtained about the security compromise. Duty to inform OFCOM of security compromise 105K 1 The provider of a public electronic communications network or a public electronic communications service must inform OFCOM as soon as reasonably practicable of— a any security compromise that has a significant effect on the operation of the network or service; b any security compromise within section 105A (2)(b) that puts any person in a position to be able to bring about a further security compromise that would have a significant effect on the operation of the network or service. 2 In determining for the purposes of this section whether the effect that a security compromise has, or would have, on the operation of a network or service is significant, the following matters in particular are to be taken into account— a the length of the period during which the operation of the network or service is or would be affected; b the number of persons who use the network or service that are or would be affected by the effect on the operation of the network or service; c the size and location of the geographical area within which persons who use the network or service are or would be affected by the effect on the operation of the network or service; d the extent to which activities of persons who use the network or service are or would be affected by the effect on the operation of the network or service. Powers of OFCOM to inform others of security compromise 105L 1 This section applies where OFCOM consider that— a there is a risk of a security compromise occurring in relation to a public electronic communications network or public electronic communications service; or b a security compromise has occurred in relation to a public electronic communications network or public electronic communications service. 2 OFCOM must inform the Secretary of State of the risk of or (as the case may be) the occurrence of the security compromise if they consider that the security compromise could result in or has resulted in— 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 use electronic communications networks, electronic communications services or associated facilities. 3 OFCOM may inform the Secretary of State of the risk of or (as the case may be) the occurrence of the security compromise in a case where the duty in subsection (2) does not arise. 4 OFCOM may inform any of the following about the risk of or (as the case may be) the occurrence of the security compromise— a any person who uses or has used the network or service; b any communications provider; c any person who makes associated facilities available; d any overseas regulator; e the European Union Agency for Cybersecurity. 5 OFCOM may inform any person who uses or has used the network or service of the technical measures that may be taken by the person for the purposes of— a preventing the security compromise adversely affecting them; or b remedying or mitigating the adverse effect that the security compromise has on them. 6 OFCOM may direct the provider of the network or service to take steps specified in the direction for the purposes of— a informing persons who use or have used the network or service of the risk of or (as the case may be) the occurrence of the security compromise; b informing persons who use or have used the network or service of the technical measures that may be taken by them for a purpose mentioned in subsection (5)(a) or (b). 7 OFCOM may if they consider it to be in the public interest— a inform the public of the risk of or (as the case may be) the occurrence of the security compromise; b inform the public of the technical measures that may be taken by members of the public for a purpose mentioned in subsection (5)(a) or (b); c direct the provider of the network or service to do anything that OFCOM could do under paragraph (a) or (b). 8 It is the duty of the provider of the network or service to comply with a direction given under this section within such reasonable period as may be specified in the direction. 9 In this section “ overseas regulator ” means a person who, under the law of a country or territory outside the United Kingdom, has functions in relation to public electronic communications networks or public electronic communications services that correspond to functions that OFCOM have in relation to such networks or services. General duty of OFCOM to ensure compliance with security duties 105M OFCOM must seek to ensure that providers of public electronic communications networks and public electronic communications services comply with the duties imposed on them by or under sections 105A to 105D, 105J and 105K . Power of OFCOM to assess compliance with security duties 105N 1 OFCOM may carry out, or arrange for another person to carry out, an assessment of whether the provider of a public electronic communications network or a public electronic communications service is complying or has complied with a duty imposed on the provider by or under any of sections 105A to 105D , 105J and 105K . 2 Where an assessment under this section is carried out, the provider of the network or service concerned must— a co-operate with the assessment; and b pay the costs reasonably incurred by OFCOM in connection with the assessment. Power of OFCOM to give assessment notices 105O 1 This section applies for the purposes of an assessment under section 105N in respect of the provider of a public electronic communications network or a public electronic communications service. 2 OFCOM may by notice (“an assessment notice”) impose on the provider a duty to do any of the following things— a carry out specified tests or tests of a specified description in relation to the network or service; b make arrangements of a specified description for another person to carry out specified tests or tests of a specified description in relation to the network or service; c make available for interview a specified number of persons of a specified description who are involved in the provision of the network or service (not exceeding the number who are willing to be interviewed); d permit an authorised person to enter specified premises; e permit an authorised person to observe any operation taking place on the premises that relates to the network or service; f direct an authorised person to equipment or other material on the premises that is of a specified description; g direct an authorised person to documents on the premises that are of a specified description; h assist an authorised person to view information of a specified description that is capable of being viewed using equipment on the premises; i comply with a request from an authorised person for a copy of the documents to which the person is directed and the information the person is assisted to view; j permit an authorised person to inspect or examine the documents, information, equipment or material to which the person is directed or which the person is assisted to view; k provide an authorised person with an explanation of such documents, information, equipment or material. 3 The references in subsection (2)(a) and (b) to tests in relation to the network or service include references to— a tests in relation to premises used in connection with the provision of the network or service; b tests in relation to persons involved in the provision of the network or service. 4 An assessment notice may impose on the provider a duty to carry out, or to make arrangements for another person to carry out, a test in relation to the network or service that risks causing a security compromise, loss to a person or damage to property only if the test consists of the use of techniques that might be expected to be used by a person seeking to cause a security compromise. 5 An assessment notice may not impose on the provider a duty to permit an authorised person to enter domestic premises. 6 An assessment notice may not impose on the provider a duty to do anything that would result in the disclosure of documents or information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality of communications) could be maintained in legal proceedings. 7 An assessment notice must, in relation to each duty imposed by the notice, specify the time or times at which, or period or periods within which, the duty must be complied with. 8 A time or period specified under subsection (7) must not be a time that falls or a period that begins before the end of the period within which an appeal under section 192 can be brought in respect of the assessment notice (ignoring any power to extend the period within which an appeal could be brought). 9 If an appeal under section 192 is brought in respect of an assessment notice or any provision of an assessment notice, the provider need not comply with any duty imposed by the notice or the provision pending the determination or withdrawal of the appeal. 10 An assessment notice must provide information about— a the consequences of failing to comply with a duty imposed by the notice; and b the right of appeal in respect of the notice under section 192. 11 An assessment notice may by further notice— a be revoked by OFCOM; b be varied by OFCOM so as to make it less onerous. 12 In this section— “ authorised person ” means an employee of, or person authorised by, OFCOM; “ domestic premises ” means premises, or a part of premises, used as a dwelling; “ specified ” means specified in the assessment notice. Assessment notices: urgency statements 105P 1 This section applies where— a an assessment notice is given under section 105O to the provider of a public electronic communications network or a public electronic communications service; b the notice states that, in OFCOM’s opinion, it is necessary for the provider to comply with a duty imposed by the notice urgently; c the notice gives OFCOM’s reasons for reaching that opinion; and d the notice provides information about the right of the provider to make an application under section 105Q. 2 Subsections (8) and (9) of section 105O do not apply in relation to the duty mentioned in subsection (1)(b). 3 A time or period specified under subsection (7) of section 105O in relation to the duty mentioned in subsection (1)(b) must not be a time that falls or a period that begins before the end of the period of 14 days beginning with the day the notice is given. 4 In a case where— a the duty mentioned in subsection (1)(b) is a duty to do something mentioned in section 105O(2)(d) to (k), and b within the period of 14 days beginning with the day the notice is given an appeal under section 192 is brought in respect of the notice or the provision of the notice that imposes the duty, the provider of the network or service need not comply with the duty pending the determination or withdrawal of the appeal. Assessment notices: applications in respect of urgency statements 105Q 1 This section applies where an assessment notice given under section 105O to a provider of a public electronic communications network or a public electronic communications service contains a statement under section 105P(1)(b). 2 The provider may apply to the court for either or both of the following— a the disapplication of the statement in relation to some or all of the duties imposed by the notice; b a change to the time at which, or period within which, a duty imposed by the notice must be complied with. 3 On an application under this section, the court may do any of the following— a direct that the notice is to have effect as if it did not contain the statement; b direct that the inclusion of the statement is not to have effect in relation to a duty imposed by the notice; c vary the notice by changing the time at which, or the period within which, a duty imposed by the notice must be complied with; d vary the notice by making other changes required to give effect to a direction under paragraph (a) or (b) or in consequence of a variation under paragraph (c). 4 The decision of the court on an application under this section is final. 5 In this section “ the court ” means the High Court or, in Scotland, the Court of Session. Assessment notices: information about entering premises 105R Every report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (OFCOM’s annual report) must include a statement of the number of occasions during the financial year to which the report relates on which premises have been entered in pursuance of a duty imposed under section 105O(2)(d). Enforcement of security duties 105S 1 Sections 96A to 100, 102 and 103 apply in relation to a contravention of a security duty as they apply in relation to a contravention of a condition set under section 45, other than an SMP apparatus condition. 2 This section is subject to section 105T (enforcement of security duties: amount of penalties). 3 In this section “ security duty ” means a duty imposed by or under any of sections 105A to 105D , 105I to 105K , 105L (6), (7)(c) and (8), 105N (2)(a) and 105O . Enforcement of security duties: amount of penalties 105T 1 In its application in relation to a contravention of a security duty, other than a security duty imposed by section 105I, section 96B(5) has effect as if the maximum penalty specified were £100,000 per day. 2 In its application in relation to a contravention of a security duty imposed by section 105I, section 96B(5) has effect as if the maximum penalty specified were £50,000 per day. 3 In its application in relation to a contravention of a security duty imposed by section 105I, section 97(1) has effect as if the maximum penalty specified were £10 million. 4 The Secretary of State may by regulations amend this section so as to substitute a different amount for the amount for the time being specified in subsection (1), (2) or (3). 5 No regulations are to be made containing provision authorised by subsection (4) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House. 6 In this section “ security duty ” has the same meaning as in section 105S . Enforcement of security duties: proposal for interim steps 105U 1 This section applies where— a OFCOM determine that there are reasonable grounds for believing that the provider of a public electronic communications network or a public electronic communications service is contravening or has contravened a duty imposed by or under any of sections 105A to 105D ; b OFCOM either have not commenced, or have commenced but not completed, enforcement action in connection with the contravention; c OFCOM determine that there are reasonable grounds for believing that either or both of the following conditions are met— i a security compromise has occurred as a result of the contravention; ii there is an imminent risk of a security compromise or (as the case may be) a further security compromise occurring as a result of the contravention; and d OFCOM determine that, having regard to the seriousness or likely seriousness of the security compromise or security compromises mentioned in paragraph (c), it is reasonable to require the provider to take interim steps pending the completion by OFCOM of enforcement action in connection with the contravention. 2 OFCOM may give a notification to the provider that— a sets out the determinations mentioned in subsection (1); b specifies the interim steps that OFCOM think the provider should be required to take pending the completion by OFCOM of enforcement action in connection with the contravention; and c specifies the period during which the provider has an opportunity to make representations about the matters notified. 3 In this section and section 105V — a references to the commencement by OFCOM of enforcement action in connection with a contravention are to the giving of a notification under section 96A (as applied by section 105S ) in respect of the contravention; and b references to the completion by OFCOM of enforcement action in connection with a contravention are to the taking of action under section 96C(2)(a) or (b) (as applied by section 105S ) in connection with the contravention. 4 In this section “ interim steps ” means— a in a case where OFCOM determine that there are reasonable grounds for believing that the condition in subsection (1)(c)(i) is met, steps to— i prevent adverse effects (on the network or service or otherwise) arising from the security compromise; ii remedy or mitigate any adverse effects on the network or service arising from the security compromise; b in a case where OFCOM determine that there are reasonable grounds for believing that the condition in subsection (1)(c)(ii) is met, steps to— i eliminate or reduce the risk of the security compromise or (as the case may be) the further security compromise occurring; ii prevent adverse effects (on the network or service or otherwise) arising from the security compromise or (as the case may be) the further security compromise in the event it occurs. Enforcement of security duties: direction to take interim steps 105V 1 This section applies where— a the provider of a public electronic communications network or a public electronic communications service has been given a notification under section 105U ; b OFCOM have allowed the provider 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 direct the provider to take the interim steps or any of the interim steps specified in the notification; or b inform the provider that a direction under paragraph (a) will not be given. 3 OFCOM may give a direction under subsection (2)(a) only if (after considering any representations) they are satisfied— a that there are reasonable grounds for believing that the contravention on the basis of which the notification was given occurred; b that there are reasonable grounds for believing that either or both of the following conditions are met— i a security compromise has occurred as a result of the contravention; ii there is an imminent risk of a security compromise or (as the case may be) a further security compromise occurring as a result of the contravention; and c that, having regard to the seriousness or likely seriousness of the security compromise or security compromises mentioned in paragraph (b), it is reasonable to give the direction. 4 A direction under subsection (2)(a) must include a statement of OFCOM’s reasons for giving the direction. 5 A direction under subsection (2)(a) must, in relation to each interim step, specify the period within which the step must be taken. 6 A direction under subsection (2)(a) is ineffective in so far as it would require interim steps to be taken after the completion by OFCOM of enforcement action in connection with the contravention concerned. 7 Where a direction under subsection (2)(a) has been given and has not been revoked, OFCOM must as soon as reasonably practicable— a commence enforcement action in connection with the contravention concerned (unless enforcement action was commenced by OFCOM before the direction was given); and b complete enforcement action in connection with the contravention concerned. 8 A direction under subsection (2)(a) may at any time— a be revoked by OFCOM; or b be varied by OFCOM so as to make it less onerous. 9 A provider of a public electronic communications network or a public electronic communications service who is given a direction under subsection (2)(a) must comply with it. 10 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. Civil liability for breach of security duties 105W 1 A duty imposed by or under any of sections 105A to 105D and 105J on a provider of a public electronic communications network or a public electronic communications service is a duty owed to every person who may be affected by a contravention of the duty. 2 Subsections (3) and (4) apply where a duty is owed by virtue of subsection (1) to a person. 3 A breach of the duty that causes that person to sustain loss or damage is actionable at the suit or instance of that person. 4 An act which— a by inducing a breach of the duty or interfering with its performance, causes that person to sustain loss or damage, and b is done wholly or partly for achieving that result, is actionable at the suit or instance of that person. 5 In proceedings brought against a provider of a public electronic communications network or a public electronic communications service by virtue of subsection (3), it is a defence for the provider to show that they took all reasonable steps and exercised all due diligence to avoid contravening the duty in question. 6 The consent of OFCOM is required for the bringing of proceedings by virtue of this section. 7 If OFCOM give their consent subject to conditions relating to the conduct of the proceedings, the proceedings are not to be carried on except in compliance with those conditions. Relationship between security duties and certain other duties etc 105X 1 A security duty imposed on a provider of a public electronic communications network or a public electronic communications service does not apply in so far as compliance with the duty would— a result in a failure by the provider to comply with a duty or prohibition imposed by or under an enactment mentioned in section 105A (4); b prevent the provider from giving effect to a warrant or authorisation that has been issued or given under an enactment mentioned in section 105A(4); c prevent the provider from providing a person with assistance in giving effect to a warrant or authorisation that has been issued or given under an enactment mentioned in section 105A (4); or d prevent the provider from providing a person with assistance in exercising any power conferred by or under prison rules. 2 In this section— “ prison rules ” has the same meaning as in section 105A; “ security duty ” means a duty imposed by or under— section 96C as applied by section 105S; or any of sections 105A to 105D , 105I to 105K , 105L (6), (7)(c) and (8), 105N (2)(a), 105O and 105V . Statement of policy on ensuring compliance with security duties 105Y 1 OFCOM must prepare and publish a statement of their general policy with respect to the exercise of their functions under sections 105I and 105M to 105V . 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 In exercising their functions under sections 105I and 105M to 105V OFCOM must have regard to the statement for the time being in force under this section. OFCOM reports on security 105Z 1 As soon as practicable after the end of each reporting period OFCOM must prepare and send to the Secretary of State a report for the period (a “security report”). 2 A security report must contain such information and advice as OFCOM consider may best serve the purpose mentioned in subsection (3). 3 The purpose is to assist the Secretary of State in the formulation of policy in relation to the security of public electronic communications networks and public electronic communications services. 4 A security report must in particular include— a information about the extent to which providers of public electronic communications networks and public electronic communications services have complied during the reporting period with the duties imposed on them by or under sections 105A to 105D , 105I to 105K , 105N (2)(a) and 105O ; b information about the extent to which providers of public electronic communications networks and public electronic communications services have acted during the reporting period in accordance with codes of practice issued under section 105E ; c information about the security compromises that OFCOM have been informed of during the reporting period under section 105K ; d information about the action taken by OFCOM during the reporting period in response to security compromises they have been informed of under section 105K ; e information about the extent to which and manner in which OFCOM have exercised the functions conferred on them by sections 105I and 105L to 105V during the reporting period; f information about any particular risks to the security of public electronic communications networks and public electronic communications services of which OFCOM have become aware during the reporting period; g any other information of a kind specified in a direction given by the Secretary of State. 5 A security report must not include personal data (within the meaning of Parts 5 to 7 of the Data Protection Act 2018 (see section 3(2) and (14) of that Act). 6 The Secretary of State may— a publish a security report or any part of it; or b disclose a security report or any part of it to any person or body performing functions of a public nature for the purpose of enabling or assisting the performance of those functions. 7 In publishing or disclosing a security report or any part of a security report, the Secretary of State must have regard to the need to exclude from publication or disclosure, so far as is practicable, the matters which are confidential in accordance with subsection (8). 8 A matter is confidential under this subsection if— a it relates to the affairs of a particular body; and b publication or disclosure of that matter would or might, in the Secretary of State’s opinion, seriously and prejudicially affect the interests of that body. 9 In this section “ reporting period ” means— a the period of 2 years beginning with the day on which section 11 of the Telecommunications (Security) Act 2021 comes into force; and b each successive period of 12 months. Security of public electronic communications networks and services: designated vendor directions Designated vendor directions 105Z1 1 The Secretary of State may give a direction under this section (“a designated vendor direction”) to a public communications provider. 2 The Secretary of State may give a designated vendor direction only if the Secretary of State considers that— a the direction is necessary in the interests of national security; and b the requirements imposed by the direction are proportionate to what is sought to be achieved by the direction. 3 A designated vendor direction may impose requirements on a public communications provider with respect to the use, in connection with a purpose mentioned in subsection (4) , of goods, services or facilities supplied, provided or made available by a designated vendor specified in the direction. 4 The purposes referred to in subsection (3) are— a in the case of a provider of a public electronic communications network, the provision of that network; b in the case of a provider of a public electronic communications service, the provision of that service; c in the case of a person who makes available facilities that are associated facilities by reference to a public electronic communications network or public electronic communications service, the making available of those facilities; or d in the case of a provider of a public electronic communications network or public electronic communications service, enabling persons to make use of that network or service. 5 A designated vendor direction must specify— a the public communications provider or providers to which the direction is given; b the reasons for the direction; c the time at which the direction comes into force. 6 The requirement in subsection (5) (b) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the direction would be contrary to the interests of national security. 7 A public communications provider to which a designated vendor direction is given must comply with the direction. 8 A reference in this section to a facility includes a reference to a facility, element or service that is an associated facility. Further provision about requirements 105Z2 1 This section makes further provision about the requirements that may be imposed by a designated vendor direction on a public communications provider. 2 The requirements may include, among other things— a requirements prohibiting or restricting the use of goods, services or facilities supplied, provided or made available by a designated vendor specified in the direction; b requirements prohibiting the installation of such goods or the taking up of such services or facilities; c requirements about removing, disabling or modifying such goods or facilities; d requirements about modifying such services; e requirements about the manner in which such goods, services or facilities may be used. 3 A requirement in a designated vendor direction may, among other things— a relate to the use of goods, services or facilities in connection with a specified function of— i the public electronic communications network provided by the provider; ii the public electronic communications service provided by the provider; or iii an associated facility made available by the provider that is an associated facility by reference to such a network or service (as the case may be); b relate to the use of goods, services or facilities in a specified part of— i the public electronic communications network provided by the provider; ii the public electronic communications service provided by the provider; or iii an associated facility made available by the provider that is an associated facility by reference to such a network or service (as the case may be). 4 A requirement in a designated vendor direction may make provision by reference to, among other matters— a the source of goods, services or facilities that are supplied, provided or made available by a designated vendor specified in the direction; b the time at which goods, services or facilities were developed or produced (which may be a time before the passing of the Telecommunications (Security) Act 2021); c the time at which goods, services or facilities were procured by, or supplied, provided or made available to, the public communications provider (which may be a time before the passing of that Act). 5 A designated vendor direction may impose requirements that apply in specified circumstances (for example where the public communications provider is using goods, services or facilities supplied, provided or made available by one or more other specified persons). 6 A designated vendor direction may provide for exceptions to a requirement. 7 A requirement to do a thing must specify the period within which the thing is to be done. 8 A period specified under subsection (7) must be such period as appears to the Secretary of State to be reasonable. 9 In this section— a a reference to a facility includes a reference to a facility, element or service that is an associated facility; b “ specified ” means specified in a designated vendor direction. Consultation about designated vendor directions 105Z3 1 Before giving a designated vendor direction, the Secretary of State must consult— a the public communications provider or providers which would be subject to the proposed direction, and b the person or persons who would be specified as a designated vendor or vendors in the proposed direction in accordance with section 105Z1 (3) , so far as it is reasonably practicable to do so. 2 The requirement in subsection (1) does not apply if or to the extent that the Secretary of State considers that consultation would be contrary to the interests of national security. Notice of designated vendor directions 105Z4 1 Where a designated vendor direction is given to a public communications provider, the Secretary of State must send a copy of the direction to the designated vendor or vendors specified in the direction, if or to the extent that it is reasonably practicable to do so. 2 The requirement in subsection (1) does not apply, in the case of a designated vendor, if the Secretary of State considers that sending a copy of the direction to that designated vendor would be contrary to the interests of national security. 3 The Secretary of State may exclude from the copy of the direction anything the disclosure of which the Secretary of State considers— a would, or would be likely to, prejudice to an unreasonable degree the commercial interests of any person; or b would be contrary to the interests of national security. Variation and revocation of designated vendor directions 105Z5 1 The Secretary of State must review a designated vendor direction from time to time. 2 The Secretary of State may— a vary a designated vendor direction; b revoke a designated vendor direction (whether wholly or in part). 3 The Secretary of State may vary a designated vendor direction only if— a the Secretary of State considers that the direction as varied is necessary in the interests of national security; and b the Secretary of State considers that the requirements imposed by the direction as varied are proportionate to what is sought to be achieved by the direction. 4 Before varying a designated vendor direction, the Secretary of State must consult— a the public communications provider or providers which would be subject to the direction as proposed to be varied, and b the person or persons who would be affected as a designated vendor or vendors by the direction as proposed to be varied, so far as it is reasonably practicable to do so. 5 The requirement in subsection (4) does not apply if or to extent that the Secretary of State considers that consultation would be contrary to the interests of national security. Notice of variation and revocation of designated vendor directions 105Z6 1 The Secretary of State must give notice of a variation of a designated vendor direction under section 105Z5 to the public communications provider or providers subject to the direction as varied. 2 The notice of variation must specify— a how the direction is varied; b the reasons for the variation; c the time at which the variation, or each of them, comes into force. 3 The requirement in subsection (2) (b) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security. 4 The Secretary of State must send a copy of the notice of variation to the designated vendor or vendors specified in the direction as varied, if or to the extent that it is reasonably practicable to do so. 5 The requirement in subsection (4) does not apply, in the case of a designated vendor, if the Secretary of State considers that sending a copy of the notice of variation to that designated vendor would be contrary to the interests of national security. 6 The Secretary of State may exclude from the copy of the notice of variation anything the disclosure of which the Secretary of State considers— a would, or would be likely to, prejudice to an unreasonable degree the commercial interests of the public communications provider or providers subject to the direction as varied; or b would be contrary to the interests of national security. 7 The Secretary of State must give notice of a revocation of a designated vendor direction under section 105Z5 to the public communications provider or providers subject to the direction as it had effect before the revocation. 8 The notice of revocation must specify— a the time at which the revocation comes into force; b if the direction is partly revoked, what part of the direction is revoked. 9 The Secretary of State must send a copy of the notice of revocation to the designated vendor or vendors specified in the direction as it had effect before the revocation, if or to the extent that it is reasonably practicable to do so. 10 The requirement in subsection (9) does not apply, in the case of a designated vendor, if the Secretary of State considers that sending a copy of the notice of revocation to that designated vendor would be contrary to the interests of national security. 11 Where the direction is partly revoked, the Secretary of State may exclude from the copy of the notice of revocation anything the disclosure of which the Secretary of State considers— a would, or would be likely to, prejudice to an unreasonable degree the commercial interests of any person; or b would be contrary to the interests of national security. Designated vendor directions: plans for compliance 105Z7 1 This section applies where a designated vendor direction has been given to a public communications provider (and has not been revoked). 2 The Secretary of State may from time to time require the public communications provider— a to prepare a plan setting out— i the steps that the provider intends to take in order to comply with such requirements imposed by the direction as the Secretary of State may specify; and ii the timing of those steps; and b to provide the plan to the Secretary of State. 3 The Secretary of State may also require that the plan be provided to OFCOM. 4 The Secretary of State may specify the period within which a plan required under this section is to be provided to the Secretary of State or OFCOM. 5 A period specified under subsection (4) must be such period as appears to the Secretary of State to be reasonable. Designation notices 105Z8 1 The Secretary of State may issue a notice (“a designation notice”) designating a person for the purposes of a designated vendor direction. 2 A designation notice may designate more than one person. 3 The Secretary of State may issue a designation notice only if the Secretary of State considers that the notice is necessary in the interests of national security. 4 In considering whether to designate a person, the matters to which the Secretary of State may have regard include— a the nature of the goods, services or facilities that are or might be supplied, provided or made available by the person; b the quality, reliability and security of those goods, services or facilities or any component of them (including the quality, reliability and security of their development or production or of the manner in which they are supplied, provided or made available); c the reliability of the supply of those goods, services or facilities; d the quality and reliability of the provision of maintenance or support for those goods, services or facilities; e the extent to which and the manner in which goods, services or facilities supplied, provided or made available by the person are or might be used in the United Kingdom; f the extent to which and the manner in which goods, services or facilities supplied, provided or made available by the person are or might be used in other countries or territories; g the identity of the persons concerned in— i the development or production of goods, services or facilities supplied, provided or made available by the person or any component of them; ii supplying or providing such goods or services or making such facilities available; or iii providing maintenance or support for such goods, services or facilities; h the identity of the persons who own or control, or are associated with— i the person being considered for designation; or ii any person described in paragraph (g) ; i the country or territory in which the registered office or anything similar, or any place of business, of— i the person being considered for designation, or ii any of the persons described in paragraph (g) or (h) , is situated; j the conduct of any of the persons described in paragraph (i) as it affects or might affect the national security of any country or territory; k any other connection between a country or territory and any of those persons; l the degree to which any of those persons might be susceptible to being influenced or required to act contrary to the interests of national security. 5 A designation notice must specify the reasons for the designation. 6 The requirement in subsection (5) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security. 7 A reference in this section to a facility includes a reference to a facility, element or service that is an associated facility. Further provision about designation notices 105Z9 1 Before issuing a designation notice, the Secretary of State must consult the person or persons proposed to be designated in the notice, so far as it is reasonably practicable to do so. 2 The requirement in subsection (1) does not apply if or to the extent that the Secretary of State considers that consultation would be contrary to the interests of national security. 3 Where a designation notice is issued, the Secretary of State must send a copy to the person or persons designated in the notice, if or to the extent that it is reasonably practicable to do so. Variation and revocation of designation notices 105Z10 1 The Secretary of State must review a designation notice from time to time. 2 The Secretary of State may— a vary a designation notice; b revoke a designation notice (whether wholly or in part). 3 The Secretary of State may vary a designation notice only if the Secretary of State considers that the designation notice as varied is necessary in the interests of national security. 4 Before varying a designation notice, the Secretary of State must consult the person, or each of the persons, proposed to be designated in the notice as varied, so far as it is reasonably practicable to do so. 5 The requirement in subsection (4) does not apply if or to the extent that the Secretary of State considers that consultation would be contrary to the interests of national security. 6 The Secretary of State must give notice of a variation to— a any person designated by the designation notice as it had effect before the variation, and b any person designated by the designation notice as varied, if or to the extent that it is reasonably practicable to do so. 7 The notice of variation must specify— a how the designation notice is varied; b the reasons for the variation; c the time at which the variation, or each of them, comes into force. 8 The requirement in subsection (7) (b) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security. 9 The Secretary of State must give notice of a revocation to any person designated by the designation notice as it had effect before the revocation, if or to the extent that it is reasonably practicable to do so. 10 The notice of revocation must specify— a the time at which the revocation comes into force; b if the designation notice is partly revoked, what part of the notice is revoked. Laying before Parliament 105Z11 1 The Secretary of State must lay before Parliament a copy of— a a designated vendor direction; b a designation notice; c a notice of a variation or revocation of a designated vendor direction; and d a notice of a variation or revocation of a designation notice. 2 The requirement in subsection (1) does not apply if the Secretary of State considers that laying a copy of the direction or notice (as the case may be) before Parliament would be contrary to the interests of national security. 3 The Secretary of State may exclude from what is laid before Parliament anything the publication of which the Secretary of State considers— a would, or would be likely to, prejudice to an unreasonable degree the commercial interests of any person; or b would be contrary to the interests of national security. Monitoring of designated vendor directions 105Z12 1 The Secretary of State may give OFCOM a direction (“a monitoring direction”) requiring them— a to obtain information relating to a specified public communications provider’s compliance with a designated vendor direction; b to prepare and send a report to the Secretary of State based on that information; and c to provide to the Secretary of State on request the information on which a report falling within paragraph (b) is based. 2 The information that OFCOM may be required to obtain under subsection (1) (a) is— a information that would assist the Secretary of State in determining whether the provider has complied, is complying or is preparing to comply with— i the designated vendor direction; or ii a specified requirement imposed by the designated vendor direction; b information about a specified matter which is relevant to compliance with a requirement imposed by the designated vendor direction; c if the provider has been required to provide a plan under section 105Z7 , information about whether the provider is acting in accordance with the plan. 3 A monitoring direction may make provision about— a the form of a report; b the content of a report. 4 A monitoring direction may, in particular, require a report to include— a OFCOM’s analysis of information gathered by them; b an explanation of their analysis. 5 A monitoring direction may require OFCOM to give the Secretary of State separate reports on different matters. 6 A monitoring direction may make provision about the time or times at which OFCOM must report to the Secretary of State, including provision requiring OFCOM to give reports at specified intervals. 7 OFCOM must exercise their powers to obtain information in such manner as they consider appropriate for the purposes of preparing a report required by a monitoring direction. 8 The Secretary of State may give OFCOM more than one monitoring direction in relation to a designated vendor direction. 9 The Secretary of State may vary or revoke a monitoring direction. 10 The Secretary of State must consult OFCOM before giving or varying a monitoring direction. 11 In this section “ specified ” means specified in a monitoring direction. Reports made under monitoring directions 105Z13 1 The Secretary of State may— a publish a report made by OFCOM in accordance with a monitoring direction or part of it; or b disclose such a report or part of it. 2 In publishing or disclosing a report made by OFCOM in accordance with a monitoring direction, the Secretary of State must have regard to the need to exclude from publication or disclosure, so far as 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 to the affairs of a particular body; and b publication or disclosure of that matter would or might, in the Secretary of State’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 or disclosure of that matter would or might, in the Secretary of State’s opinion, seriously and prejudicially affect the interests of that individual. Power of OFCOM to give inspection notices 105Z14 1 This section applies where the Secretary of State has given OFCOM a monitoring direction relating to a public communications provider (and the monitoring direction has not been revoked). 2 OFCOM may by notice (“an inspection notice”) given to the provider impose on the provider a duty to take any of the actions mentioned in subsection (4) . 3 OFCOM may exercise the power in subsection (2) for the purpose of obtaining— a information (in any form) that would assist the Secretary of State in determining whether the provider has complied or is complying with— i the designated vendor direction; or ii a specified requirement imposed by the designated vendor direction; b information (in any form) about a specified matter which is relevant to whether the provider has complied or is complying with a requirement imposed by the designated vendor direction. 4 The actions are— a to carry out surveys of a specified description of— i the public electronic communications network provided by the provider; ii the public electronic communications service provided by the provider; or iii the associated facilities made available by the provider that are associated facilities by reference to such a network or service (as the case may be); b to make arrangements of a specified description for another person to carry out surveys of a specified description of the network, service or associated facilities; c to make available for interview a specified number of persons of a specified description who are involved in the provision of the network or service or the making available of the associated facilities (not exceeding the number who are willing to be interviewed); d to permit an authorised person to enter specified premises; e to permit an authorised person to observe any operation taking place on the premises that relates to the network, service or associated facilities; f to direct an authorised person to equipment or other material on the premises that is of a specified description; g to direct an authorised person to documents on the premises that are of a specified description; h to assist an authorised person to view information of a specified description that is capable of being viewed using equipment on the premises; i to comply with a request from an authorised person for a copy of the documents to which the person is directed and the information the person is assisted to view; j to permit an authorised person to inspect or examine the documents, information, equipment or material to which the person is directed or which the person is assisted to view; k to provide an authorised person with an explanation of such documents, information, equipment or material. 5 An inspection notice may not impose on the provider a duty to permit an authorised person to enter domestic premises. 6 An inspection notice may not impose on the provider a duty to do anything that would result in— a the disclosure of documents or information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality of communications) could be maintained in legal proceedings; or b a disclosure of documents or information that is prohibited by or under an enactment mentioned in section 105A(4). 7 An inspection notice must, in relation to each duty imposed by the notice, specify the time or times at which, or period or periods within which, the duty must be complied with. 8 A time or period specified under subsection (7) must not be a time that falls or a period that begins before the end of the period of 28 days beginning with the day on which the inspection notice is given. 9 In this section— “ authorised person ” means an employee of, or person authorised by, OFCOM; “ domestic premises ” means premises, or a part of premises, used as a dwelling; “ specified ” means specified in an inspection notice. Inspection notices: further provision 105Z15 1 An inspection notice must provide information about the consequences of failing to comply with a duty imposed by the notice. 2 An inspection notice may by further notice— a be revoked by OFCOM; b be varied by OFCOM so as to make it less onerous. 3 Where an inspection notice is given to a public communications provider, the provider may not act in such a way as to defeat the purpose of the inspection notice. 4 Where an inspection notice is given to a public communications provider, the provider must pay the costs reasonably incurred by OFCOM in connection with obtaining information by means of the inspection notice. Inspection notices: information about entering premises 105Z16 Every report under paragraph 12 of the Schedule to the Office of Communications Act 2002 (OFCOM’s annual report) must include a statement of the number of occasions during the financial year to which the report relates on which premises have been entered in pursuance of a duty imposed under section 105Z14 (4) (d) . Inspection notices: enforcement of compliance 105Z17 1 Sections 96A to 100, 102 and 103 apply in relation to— a a contravention of a duty imposed by an inspection notice, or b a contravention of the duty imposed by section 105Z15 (3) , as they apply in relation to a contravention of a condition set under section 45, other than an SMP apparatus condition. 2 Subsection (1) is subject to subsections (3) and (4) . 3 In its application in relation to a contravention referred to in subsection (1) , section 96B(5) has effect as if the maximum penalty specified were £50,000 per day. 4 In its application in relation to a contravention referred to in subsection (1) , section 97(1) has effect as if the maximum penalty specified were £10 million. 5 The Secretary of State may by regulations amend this section so as to substitute a different amount for the amount for the time being specified in subsection (3) or (4) . 6 No regulations are to be made containing provision authorised by subsection (5) unless a draft of the instrument has been laid before Parliament and approved by a resolution of each House. Notification of contravention 105Z18 1 Where the Secretary of State determines that there are reasonable grounds for believing that a public communications provider is contravening, or has contravened— a a requirement imposed by a designated vendor direction, or b a requirement under section 105Z7 , the Secretary of State may give the provider a notification under this section. 2 A notification under this section is one which— a sets out the Secretary of State’s determination; b specifies the requirement and contravention in respect of which the determination is made; c specifies the period during which the provider has an opportunity to make representations; d specifies the steps that the Secretary of State thinks should be taken by the provider in order to— i comply with the requirement; ii remedy the consequences of the contravention; e specifies the penalty which the Secretary of State is minded to impose. 3 A notification under this section may be given in respect of more than one contravention. 4 If a notification under this section relates to more than one contravention, a separate penalty may be specified under subsection (2) (e) in respect of each contravention. 5 If a notification under this section is given in respect of a continuing contravention, it may be given in respect of any period during which the contravention has continued. 6 If a notification under this section relates to a continuing contravention, no more than one penalty may be specified under subsection (2) (e) in respect of the period of contravention specified in the notification. 7 Notwithstanding subsection (6) , 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 105Z20 which requires immediate action in respect of that contravention (see section 105Z20 (6) (a) ); or b the expiry of any period specified in the confirmation decision for complying with the requirement being contravened. 8 Where a notification under this section has been given to a public communications provider in respect of a contravention of a requirement, the Secretary of State 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. Amount of penalty 105Z19 1 The amount of a penalty that may be specified in a notification under section 105Z18 is such amount as the Secretary of State determines to be— a appropriate; and b proportionate to the contravention in respect of which it is imposed. 2 The amount may not exceed 10 per cent of the turnover of the public communications provider’s relevant business for the relevant period, subject to subsection (3) . 3 In the case of a penalty specified under section 105Z18 (7) , the amount may not exceed £100,000 per day. 4 Where the notification relates to a contravention of a requirement under section 105Z7 — a subsection (2) has effect as if the maximum amount specified were £10 million; and b subsection (3) has effect as if the maximum amount specified were £50,000 per day. 5 The Secretary of State may by regulations amend this section so as to substitute a different maximum penalty for the maximum penalty for the time being specified in subsection (3) or (4) (a) or (b) . 6 No regulations are to be made containing provision authorised by subsection (5) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House. 7 For the purposes of this section— a the turnover of a person’s relevant business for a period is to be calculated in accordance with such rules as may be set out in an order under section 97(3)(a); and b 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 is to be determined in accordance with such provision as may be made by an order under section 97(3)(a). 8 In this section— “ relevant business ”, in relation to a person, means (subject to the provisions of an order under section 97(3)(a)) so much of any business carried on by the person as consists in any one or more of the following— the provision of a public electronic communications network; the provision of a public electronic communications service; the making available of facilities that are associated facilities by reference to such a network or service; “ relevant period ”, in relation to a contravention by a person of a requirement imposed by a designated vendor direction, means— 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 105Z18 ; 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 the person has been carrying it on; and 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 the person ceased to carry it on. Enforcement of notification 105Z20 1 This section applies where— a a public communications provider has been given a notification under section 105Z18 ; b the Secretary of State has allowed the provider an opportunity to make representations about the matters notified; and c the period allowed for the making of representations has expired. 2 The Secretary of State may— a give the provider a decision (“a confirmation decision”) confirming the imposition of requirements on the provider in accordance with the notification under section 105Z18 ; or b inform the provider that no further action will be taken. 3 The Secretary of State may not give the provider a confirmation decision unless, after considering any representations, the Secretary of State is satisfied that the provider has, in one or more of the ways specified in the notification under section 105Z18 , contravened— a a requirement imposed by a designated vendor direction, or b a requirement imposed under section 105Z7 , specified in the notification under section 105Z18 . 4 A confirmation decision must be given to the provider without delay. 5 A confirmation decision must include reasons for the decision. 6 A confirmation decision may— a require immediate action by the provider— i to comply with the requirement specified in the notification under section 105Z18 , and ii to remedy the consequences of the contravention, or b specify a period within which the provider must comply with that requirement and remedy those consequences, and may specify the steps to be taken by the provider in order to comply with that requirement or remedy those consequences. 7 A confirmation decision may require the provider to pay— a the penalty specified in the notification under section 105Z18 , or b such lesser penalty as the Secretary of State considers appropriate in the light of— i any representations made by the provider, and ii any steps taken by the provider to comply with the requirement specified in the notification under section 105Z18 or to remedy the consequences of the contravention, and may specify the period within which the penalty is to be paid. 8 It is the duty of the provider to comply with any requirement imposed by a confirmation decision. 9 The Secretary of State may enforce the provider’s duty in civil proceedings— 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. Enforcement of penalty 105Z21 1 This section applies where a sum is payable to the Secretary of State as a penalty under section 105Z20 . 2 In England and Wales, the penalty is recoverable as if it were payable under an order of the county court. 3 In Scotland, the penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland. 4 In Northern Ireland, the penalty is recoverable as if it were payable under an order of a county court in Northern Ireland. 5 Where action is taken under this section for the recovery of a sum payable as a penalty under section 105Z20 , the penalty is— a in relation to England and Wales, to be treated for the purposes of section 98 of the Courts Act 2003 (register of judgments and orders etc) as if it were a judgment entered in the county court; b in relation to Northern Ireland, to be treated for the purposes of Article 116 of the Judgments Enforcement (Northern Ireland) Order 1981 (S.I. 1981/226 (N.I. 6)) (register of judgments) as if it were a judgment in respect of which an application has been accepted under Article 22 or 23(1) of that Order. Urgent enforcement direction 105Z22 1 The Secretary of State may give a direction under this section (“an urgent enforcement direction”) to a person if the Secretary of State determines that— a there are reasonable grounds for believing that the person is contravening, or has contravened— i a requirement imposed by a designated vendor direction; or ii a requirement not to disclose imposed under section 105Z25 ; b there are reasonable grounds for suspecting that the case is an urgent case; and c the urgency of the case makes it appropriate for the Secretary of State 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 national security; or b significant harm to the security of a public electronic communications network, a public electronic communications service or a facility that is an associated facility by reference to such a network or service. 3 An urgent enforcement direction must— a specify the requirement and contravention in respect of which it is given; b require the person to take such steps falling within subsection (4) as are specified in the direction; c specify a period within which those steps must be taken; and d specify the Secretary of State’s reasons for giving the direction. 4 The steps falling within this subsection are the steps that the Secretary of State has determined are appropriate— a for complying with the requirement; or b for remedying the consequences of the contravention. 5 The requirement in subsection (3) (d) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the direction would be contrary to the interests of national security. Urgent enforcement direction: confirmation 105Z23 1 As soon as reasonably practicable after giving an urgent enforcement direction, the Secretary of State must— a confirm the direction; or b revoke the direction (see section 105Z24 ). 2 The Secretary of State may confirm an urgent enforcement direction with or without modifications. 3 The Secretary of State may confirm an urgent enforcement direction only if the Secretary of State has determined that— a the person is contravening, or has contravened— i a requirement imposed by a designated vendor direction; or ii a requirement not to disclose imposed under section 105Z25 ; b the contravention has resulted in, or creates an immediate risk of, a threat or harm described in section 105Z22 (2) (a) or (b) ; and c it is appropriate to confirm the urgent enforcement direction, with any modifications, to prevent, reduce or remove that threat or harm or immediate risk. 4 Before confirming an urgent enforcement direction, the Secretary of State must— a give notice to the person to whom the direction was given that the Secretary of State proposes to confirm the direction; and b give the person— i an opportunity of making representations about the grounds on which it was given and its effect; and ii an opportunity of proposing steps to remedy the situation. 5 The notice under subsection (4) (a) must— a state that the Secretary of State proposes to confirm the direction; b specify any proposed modifications of the direction; c specify the Secretary of State’s reasons for confirming the direction and for any modifications; and d specify a reasonable period for making representations. 6 The requirement in subsection (5) (c) does not apply if or to the extent that the Secretary of State considers that specifying reasons in the notice would be contrary to the interests of national security. 7 As soon as reasonably practicable after determining whether to confirm the direction, the Secretary of State must by notice inform the person to whom it was given of the determination. Urgent enforcement direction: enforcement 105Z24 1 A person who is given an urgent enforcement direction must comply with it, whether or not it has been confirmed (unless it is revoked). 2 The duty is enforceable in civil proceedings by the Secretary of State— 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. Requirement not to disclose 105Z25 1 The Secretary of State may require a public communications provider which has been given a designated vendor direction or a designated vendor who has been sent a copy under section 105Z4 not to disclose to any other person the contents of— a the designated vendor direction, or b a part of the designated vendor direction specified by the Secretary of State, without the permission of the Secretary of State. 2 The Secretary of State may require a designated vendor not to disclose to any other person the contents of— a the designation notice, or b a part of the designation notice specified by the Secretary of State, without the permission of the Secretary of State. 3 The Secretary of State may require a public communications provider which has been given a notification under section 105Z18 (notification of contravention of designated vendor direction etc) not to disclose to any other person the existence or contents of— a the notification, or b a part of the notification specified by the Secretary of State, without the permission of the Secretary of State. 4 The Secretary of State may require a public communications provider which has been given a confirmation decision under section 105Z20 (enforcement of notification under section 105Z18 ) not to disclose to any other person the existence or contents of— a the confirmation decision, or b a part of the confirmation decision specified by the Secretary of State, without the permission of the Secretary of State. 5 The Secretary of State may require a person who has been given an urgent enforcement direction not to disclose to any other person the existence or contents of— a the urgent enforcement direction, or b a part of the urgent enforcement direction specified by the Secretary of State, without the permission of the Secretary of State. 6 The Secretary of State may require a person who has been given a notice under section 105Z23 (4) (a) or (7) (notices relating to confirmation of an urgent enforcement direction) not to disclose to any other person the existence or contents of— a the notice, or b a part of the notice specified by the Secretary of State, without the permission of the Secretary of State. 7 The Secretary of State may not impose a requirement on a person under subsection (1) , (2) , (3) , (4) , (5) or (6) unless the condition in subsection (8) is satisfied. 8 The condition in this subsection is that the Secretary of State considers that it would be contrary to the interests of national security for— a the contents of the designated vendor direction or the part specified under subsection (1) , b the contents of the designation notice or the part specified under subsection (2) , c the existence or contents of the notification under section 105Z18 or the part specified under subsection (3) , d the existence or contents of the confirmation decision under section 105Z20 or the part specified under subsection (4) , e the existence or contents of the urgent enforcement direction or the part specified under subsection (5) , or f the existence or contents of the notice under section 105Z23 (4) (a) or (7) or the part specified under subsection (6) , (as the case may be) to be disclosed, except as permitted by the Secretary of State. 9 If the condition in subsection (10) is satisfied, the Secretary of State may require a person consulted under section 105Z3 (1) , 105Z5 (4) , 105Z9 (1) or 105Z10 (4) not to disclose to any other person— a the existence of the consultation and any information disclosed to the person in the consultation, or b the existence of a part of the consultation specified by the Secretary of State and any information disclosed to the person in that part of the consultation, without the permission of the Secretary of State. 10 The condition in this subsection is that the Secretary of State considers that it would be contrary to the interests of national security for the matters described in subsection (9) (a) or (as the case may be) subsection (9) (b) to be disclosed, except as permitted by the Secretary of State. 11 Where a person is subject to a requirement under this section not to disclose a matter, disclosure of that matter by an employee of the person or a person engaged in the person’s business is to be regarded as a disclosure by the person, unless the person can show that the person took all reasonable steps to prevent such a disclosure. Enforcement of requirement not to disclose 105Z26 1 Sections 105Z18 , 105Z19 (1) to (3) , 105Z20 and 105Z21 apply in relation to a contravention by a person of a requirement not to disclose imposed under section 105Z25 as they apply in relation to a contravention by a public communications provider of a requirement imposed by a designated vendor direction, subject to subsections (2) to (6) . 2 Section 105Z18 (as applied by this section) has effect as if, in subsection (2) (d) , for sub-paragraphs (i) and (ii) there were substituted— i bring the contravention to an end; ii limit the consequences of the contravention; . 3 Section 105Z19 (as applied by this section) has effect as if— a in subsection (2) , the maximum penalty specified were £10 million; b in subsection (3) , the maximum penalty specified were £50,000 per day. 4 The Secretary of State may by regulations amend subsection (3) so as to substitute a different amount for the amount for the time being specified in subsection (3) (a) or (b) . 5 No regulations are to be made containing provision authorised by subsection (4) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House. 6 Section 105Z20 (as applied by this section) has effect as if— a in subsection (6) — i in paragraph (a) , for sub-paragraphs (i) and (ii) there were substituted— i to bring the contravention to an end, and ii to limit the consequences of the contravention, ; ii in paragraph (b) , for “comply with that requirement and remedy” there were substituted “bring that contravention to an end and limit” ; iii in the words following paragraph (b) , for “comply with that requirement or remedy” there were substituted “bring that contravention to an end or limit” ; b in subsection (7) (b) (ii) , for the words from “comply” to “remedy” there were substituted “bring the contravention to an end or to limit” . Power of Secretary of State to require information etc 105Z27 1 The Secretary of State may require a person falling within subsection (2) to provide the Secretary of State with such information as the Secretary of State may reasonably require for the purpose of exercising the Secretary of State’s functions under sections 105Z1 to 105Z26 . 2 The persons falling within this subsection are— a a person who is or has been a public communications provider; b a person not falling within paragraph (a) who appears to the Secretary of State to have information relevant to the exercise of the Secretary of State’s functions under sections 105Z1 to 105Z26 . 3 The Secretary of State may require a person falling within subsection (2) — a to produce, generate or obtain information for the purpose of providing it under subsection (1) ; b to collect or retain information that the person would not otherwise collect or retain for the purpose of providing it under subsection (1) ; c to process, collate or analyse any information held by the person (including information the person has been required to collect or retain) for the purpose of producing or generating information to be provided under subsection (1) . 4 The information that may be required under subsection (1) includes, in particular, information about— a the use, or proposed use, of goods, services or facilities supplied, provided or made available by a particular person or a particular description of person; b goods, services or facilities proposed to be supplied, provided or made available by a particular person or a particular description of person; c goods, services or facilities proposed to be supplied, provided or made available by a person who has not, or has not recently, supplied, provided or made available for use in the United Kingdom— i goods, services or facilities of that description; or ii any goods, services or facilities; d the manner in which a public electronic communications network or a public electronic communications service is, or is proposed to be, provided or facilities that are associated facilities by reference to such a network or service are, or are proposed to be, made available; e future developments of such a network or service or such associated facilities. 5 The Secretary of State may require a person to provide information under this section at such times or in such circumstances as may be specified by the Secretary of State. 6 A person must comply with a requirement imposed under this section in such manner and within such reasonable period as may be specified by the Secretary of State. 7 The powers in this section are subject to the limitations in section 105Z28 . 8 A reference in this section to a facility includes a reference to a facility, element or service that is an associated facility. Restrictions on imposing information requirements 105Z28 1 This section limits the purposes for which, and manner in which, requirements may be imposed under section 105Z27 . 2 The Secretary of State is not to require a person to provide information under section 105Z27 except by a notice served on the person that— a describes the required information; and b sets out the Secretary of State’s reasons for requiring it. 3 The Secretary of State is not to impose a requirement on a person under section 105Z27 (3) except by a notice served on the person that sets out the requirement and the Secretary of State’s reasons for imposing it. 4 The requirements in subsections (2) (b) and (3) do not apply if or to the extent that the Secretary of State considers that setting out reasons in the notice would be contrary to the interests of national security. 5 The Secretary of State is not to require the provision of information under section 105Z27 except 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 the Secretary of State’s functions. 6 The Secretary of State is not to impose a requirement on a person under section 105Z27 (3) except where the imposition of the requirement is proportionate to the use to which the information required to be produced, generated, obtained, collected or retained (including information required to be produced or generated by processing, collating or analysing) is to be put in the carrying out of the Secretary of State’s functions. 7 A requirement to provide information under section 105Z27 does not require a person to disclose information in respect of which a claim to legal professional privilege (or, in Scotland, to confidentiality of communications) could be maintained in legal proceedings. Enforcement of information requirements etc 105Z29 1 Sections 105Z18 , 105Z19 (1) to (3) , 105Z20 and 105Z21 apply in relation to a contravention by a person of a requirement under section 105Z27 as they apply in relation to a contravention by a public communications provider of a requirement imposed by a designated vendor direction, subject to subsection (2) . 2 Section 105Z19 (as applied by this section) has effect as if— a in subsection (2) , the maximum penalty specified were £10 million; b in subsection (3) , the maximum penalty specified were £50,000 per day. 3 The Secretary of State may by regulations amend subsection (2) so as to substitute a different amount for the amount for the time being specified in subsection (2) (a) or (b) . 4 No regulations are to be made containing provision authorised by subsection (3) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House. Electronic communications code Application of the electronic communications code 106 1 In this Chapter “ the electronic communications code ” means the code set out in Schedule 3A . 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 infrastructure 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. 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 system of infrastructure , or part of a system 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 85(7) of the code (minimum compensation). 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure for directions applying code 107 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. 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. 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 30 days 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. 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 30 days 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. Register of persons in whose case code applies 108 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. 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). Restrictions and conditions subject to which code applies 109 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; 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; 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. 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; 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. Enforcement of restrictions and conditions 110 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; ... 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). 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalties for contravention of code restrictions 110A 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. Confirmation decision for contravention of code restrictions 111 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. 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. 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 a confirmation decision has been given to comply with any 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. 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. Power to deal with urgent cases 111A 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. 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. Confirmation of direction under section 111A 111B 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. 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. Penalties for contravention of code restrictions 112 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suspension of application of code 113 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 serious 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); 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 , 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 , in the case of a repeated contravention an attempt, by the imposition of penalties under section 41, to secure such compliance has failed; and 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 (including that section as applied by section 105S or 105Z17 ) , 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 repeated 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 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. 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). Procedure for directions under s. 113 114 1 Except in an urgent case , 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. 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 b proposing steps for remedying the situation that has given rise to the situation. 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. Modification and revocation of application of code 115 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. 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. Notification of cessation by person to whom code applies 116 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— 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. Transitional schemes on cessation of application of code 117 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”), 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. Compulsory acquisition of land etc. 118 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. Power to give assistance in relation to certain proceedings 119 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; 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 section 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 Lord 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)). Regulation of premium rate services Conditions regulating premium rate services 120 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— 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 Section 47 applies to the setting, modification and revocation of a condition under this section as it applies to the setting, modification and revocation of a condition under section 45. 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; 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— provides an electronic communications service used for the provision of the relevant service or an electronic communications network so used; and is a party to an agreement with— a provider of the relevant service falling within subsection (9)(a) to (d), or another intermediary service provider, 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. Procedure for setting, modifying and revoking premium rate services conditions 120A 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. 7 OFCOM must send a copy of every notification published under this section to the Secretary of State. Approval of code for premium rate services 121 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 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); 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. Orders by OFCOM in the absence of a code under s. 121 122 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 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. Enforcement of s. 120 conditions 123 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. 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 each 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 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. Suspending service provision for contraventions of s. 120 conditions 124 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 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. Online infringement of copyright: obligations of internet service providers Obligation to notify subscribers of copyright infringement reports 124A 1 This section applies if it appears to a copyright owner that— 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; 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). Obligation to provide copyright infringement lists to copyright owners 124B 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. Approval of code about the initial obligations 124C 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— 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. Initial obligations code by OFCOM in the absence of an approved code 124D 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. Contents of initial obligations code 124E 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. 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. Progress reports 124F 1 OFCOM must prepare the following reports for the Secretary of State about the infringement of copyright by subscribers to internet access services. 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. Obligations to limit internet access: assessment and preparation 124G 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. Obligations to limit internet access 124H 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. Code by OFCOM about obligations to limit internet access 124I 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. Contents of code about obligations to limit internet access 124J 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; 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. Subscriber appeals 124K 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; 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— 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 appeal); and b any such subscriber appeal or further appeal has been determined, abandoned or otherwise disposed of. Enforcement of obligations 124L 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; 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. Sharing of costs 124M 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. Interpretation 124N 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 copyright owner within the meaning of Part 1 of the Copyright, Designs and Patents Act 1988 (see section 173 of that Act); or 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— is provided to a subscriber; consists entirely or mainly of the provision of access to the internet; and 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— receives the service under an agreement between the person and the provider of the service; and does not receive it as a communications provider; “ subscriber appeal ” means— in relation to an initial obligations code, an appeal by a subscriber on grounds specified in the code in relation to— the making of a copyright infringement report; notification under section 124A(4); the inclusion or proposed inclusion of an entry in a copyright infringement list; or any other act or omission in relation to an initial obligation or an initial obligations code; in relation to a technical obligations code, an appeal by a subscriber on grounds specified in the code in relation to— the proposed taking of a technical measure; or 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. Powers in relation to internet domain registries Notification of failure in relation to internet domain registry 124O 1 This section applies where the Secretary of State— a is satisfied that a serious relevant failure in relation to a qualifying internet domain registry is taking place or has taken place, and b wishes to exercise the powers under section 124P or 124R. 2 The Secretary of State must notify the internet domain registry, specifying the failure and a period during which the registry has the opportunity to make representations to the Secretary of State. 3 There is a relevant failure in relation to a qualifying internet domain registry if— a the registry, or any of its registrars or end-users, engages in prescribed practices that are unfair or involve the misuse of internet domain names, or b the arrangements made by the registry for dealing with complaints in connection with internet domain names do not comply with prescribed requirements. 4 A relevant failure is serious, for the purposes of this section, if it has adversely affected or is likely adversely to affect— a the reputation or availability of electronic communications networks or electronic communications services provided in the United Kingdom or a part of the United Kingdom, or b the interests of consumers or members of the public in the United Kingdom or a part of the United Kingdom. 5 In subsection (3) “ prescribed ” means prescribed by regulations made by the Secretary of State. 6 Before making regulations under subsection (3) the Secretary of State must consult such persons as the Secretary of State considers appropriate. 7 In this section and sections 124P to 124R— “ end-user ”, in relation to a qualifying internet domain registry, means a person who has been or wants to be allocated an internet domain name that is or would be included in the register maintained by the registry; “ qualifying internet domain registry ” means a relevant body that— maintains a relevant register of internet domain names, and operates a computer program or server that forms part of the system that enables the names included in the register to be used to access internet protocol addresses or other information by means of the internet; “ registrar ”, in relation to a qualifying internet domain registry, means a person authorised by the registry to act on behalf of end-users in connection with the registration of internet domain names; “ relevant body ” means a company formed and registered under the Companies Act 2006 or a limited liability partnership; “ relevant register of internet domain names ” means a register of— the names of second level internet domains that form part of the same UK-related top level internet domain, or the names of third level internet domains that form part of the same UK-related second level internet domain; “ second level internet domain ” means an internet domain indicated by the last two elements of an internet domain name; “ third level internet domain ” means an internet domain indicated by the last three elements of an internet domain name; “ top level internet domain ” means an internet domain indicated by the last element of an internet domain name. 8 An internet domain is “UK-related” if, in the opinion of the Secretary of State, the last element of its name is likely to cause users of the internet, or a class of such users, to believe that the domain and its sub-domains are connected with the United Kingdom or a part of the United Kingdom. Appointment of manager of internet domain registry 124P 1 This section applies where— a the Secretary of State has given a notification under section 124O to a qualifying internet domain registry specifying a failure, b the period allowed for making representations has expired, and c the Secretary of State is satisfied that the registry has not taken the steps that the Secretary of State considers appropriate for remedying the failure. 2 The Secretary of State may by order appoint a manager in respect of the property and affairs of the internet domain registry for the purpose of securing that the registry takes the steps described in subsection (1)(c). 3 The person appointed may be anyone whom the Secretary of State thinks appropriate. 4 The appointment of the manager does not affect— a a right of a person to appoint a receiver of the registry's property, or b the rights of a receiver appointed by a person other than the Secretary of State. 5 The Secretary of State must— a keep the order under review, and b if appropriate, discharge all or part of the order. 6 The Secretary of State must discharge the order on the appointment of a person to act as administrative receiver, administrator, provisional liquidator or liquidator of the registry. 7 The Secretary of State must discharge the order before the end of the period of 2 years beginning with the day on which it was made (but this does not prevent the Secretary of State from making a further order in the same or similar terms). 8 When discharging an order under this section, the Secretary of State may make savings and transitional provision. 9 The Secretary of State must send a copy of an order made under this section to the registry as soon as practicable after it is made. 10 In subsection (4), “ receiver ” includes a manager (other than a manager appointed by the registry) and a person who is appointed as both receiver and manager. 11 In subsection (6)— “ administrative receiver ” means an administrative receiver within the meaning of section 251 of the Insolvency Act 1986 or Article 5(1) of the Insolvency (Northern Ireland) Order 1989 ( S.I. 1989/2405 (N.I. 19)); “ administrator ” means a person appointed to manage the affairs, business and property of the registry under Schedule B1 to that Act or Schedule B1 to that Order. Functions of manager etc 124Q 1 An order under section 124P may make provision about the functions to be exercised by, and the powers of, the manager. 2 The order may, in particular— a provide for the manager to have such of the functions of the registry's directors as are specified in the order (including functions exercisable only by a particular director or class of directors), and b provide for one or more of the registry's directors to be prevented from exercising any of those functions. 3 The order may make provision about the remuneration of the manager, including in particular— a provision for the amount of the remuneration to be determined by the Secretary of State, and b provision for the remuneration to be payable from the property of the registry. 4 In carrying out the functions conferred by the order, the manager acts as the registry's agent. 5 The Secretary of State may apply to the court for directions in relation to any matter arising in connection with the functions or powers of the manager (and the costs of the application are to be paid by the registry). 6 On an application under subsection (5) the court may give such directions or make such orders as it thinks fit. 7 In this section “ the court ” means— a in England and Wales, the High Court or the county court , b in Scotland, the Court of Session or the sheriff, and c in Northern Ireland, the High Court. 8 Where the registry is a limited liability partnership, this section applies as if references to a director of the registry were references to a member of the limited liability partnership. Application to court to alter constitution of internet domain registry 124R 1 This section applies where— a the Secretary of State has given a notification under section 124O to a qualifying internet domain registry specifying a failure, b the period allowed for making representations has expired, and c the Secretary of State is satisfied that the registry has not taken the steps that the Secretary of State considers appropriate for remedying the failure. 2 The Secretary of State may apply to the court (as defined in section 124Q) for an order under this section. 3 The court may make an order— a making alterations of the registry's constitution, and b requiring the registry not to make any alterations, or any specified alterations, of its constitution without the leave of the court. 4 An order under this section may contain only such provision as the court considers appropriate for securing that the registry remedies the failure specified in the notification under section 124O. 5 In this section— “ constitution ” means, in the case of a company, the articles of association and, in the case of a limited liability partnership, the limited liability partnership agreement; “ limited liability partnership agreement ” means the agreement or agreements, whether express or implied, between the members of a limited liability partnership, and between the partnership and the members of the partnership, determining— the mutual rights and duties of the members, and their rights and duties in relation to the partnership. Billing limits for mobile phones Mobile phone providers' duty to enable billing limits to be applied 124S 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. 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. Enforcement of duty to enable billing limits to be applied 124T 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. Rights of end-users in relation to contract termination Rights of end-users in relation to contract termination 124U 1 Where an end-user has (whether under an enactment or at common law) the right to terminate a contract for a public electronic communications service before the end of the agreed contract period— a no compensation is to be due by the end-user, except compensation for any retained terminal equipment; b if the end-user chooses to retain terminal equipment to which the contract relates— i the compensation payable for the equipment is not to exceed the amount determined under subsection (2); and ii on payment of the compensation, the provider must lift any conditions restricting the use of the terminal equipment on an electronic communications network of another communications provider. 2 The maximum amount of compensation is whichever is the lesser of the following— a the remaining part of any fee for the service until the end of the agreed contract period; or b a proportion of the value of the terminal equipment, as agreed at the time of the conclusion of the contract, corresponding to the proportion of the agreed contract period that remains unexpired. 3 Where the public electronic communications service is a transmission service involving an automated transfer of data and information between devices or software-based applications with limited or no human interaction, subsection (1) does not apply unless the end-user is a qualifying end-user, as defined by section 51(9). 4 Where the contract referred to in subsection (1) is, or is included in, a bundled contract, subsection (1) applies to all the elements of the bundled contract, unless the end-user— a falls within paragraph (b) or (c) of the definition of “qualifying end-user” in section 51(9); and b has waived the rights conferred by this subsection. Further rights relating to bundled contracts 124V 1 Subsection (2) applies where— a an individual, acting for purposes other than those of a business, has entered into a bundled contract; b the individual has (whether under an enactment or at common law) the right to terminate any element of the bundled contract before the end of the agreed contract period because of a lack of conformity with the contract or a failure to supply. 2 The individual has the right to terminate all elements of the bundled contract. Enforcement of obligations of providers under sections 124U and 124V 124W 1 Sections 96A to 96C apply in relation to a contravention by the provider of a public electronic communications service of the requirements imposed on the provider by sections 124U and 124V as they apply in relation to a contravention of a condition set under section 45, other than an SMP apparatus condition, but 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 Dishonestly obtaining electronic communications services 125 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 ... 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. Possession or supply of apparatus etc. for contravening s. 125 126 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. Improper use of public electronic communications network 127 1 A person is guilty of an offence if he— 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)). 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. Persistent misuse of network or service Notification of misuse of networks and services 128 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. Enforcement notifications for stopping persistent misuse 129 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. Penalties for persistent misuse 130 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 £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). 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. Statement of policy on persistent misuse 131 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. Powers to deal with emergencies Powers to require suspension or restriction of a provider’s entitlement 132 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) 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 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. Enforcement of directions under s. 132 133 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 96A 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 , other than SMP apparatus conditions . Restrictions in leases and licences Restrictions in leases and licences 134 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. 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 leasehold tenancy (whether in the nature of a head lease, sub-lease or under lease) and an agreement to grant such a tenancy, and in Scotland, a sub-lease and an agreement to grant a sub-lease, and “ lessor ” and “ lessee ” are to be construed accordingly; “lease”— in relation to England and Wales and Northern Ireland, includes— any head lease, sub-lease or underlease, any tenancy (including a sub-tenancy), and any agreement to grant any such lease or tenancy; in relation to Scotland, includes any sub-lease and any agreement to grant a sub-lease, and “lessor” and “lessee” are to be construed accordingly; “ relevant electronic communications network ” means— a public electronic communications network that is specified for the purposes of this section in an order made by the Secretary of State; or 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. Reports on infrastructure etc OFCOM reports on infrastructure etc 134A 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 beginning with the end of the previous period and ending at such time not more than 3 years after the end of the previous period as OFCOM may determine. 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. Additional OFCOM reports on infrastructure etc 134AA 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). 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. Publication of information required for purpose of preparing reports 134AB 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. Use of reports 134AC 1 The Secretary of State must have regard to reports received from OFCOM under section 134A, or published by OFCOM under section 134AA, when exercising functions for any of the relevant purposes. 2 The relevant purposes are— a the allocation of public funds for the bringing into operation of electronic communications networks; b the design of national broadband plans; c verifying the availability of services to which universal service conditions apply. 3 Any other public authority must have regard to reports published by OFCOM under section 134AA when exercising functions for either of the purposes specified in subsection (2)(a) and (b). Networks and services matters 134B 1 For the purposes of sections 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, fa the quality of service available on different UK networks, by reference to such parameters as OFCOM consider appropriate, 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, ... ha the extent to which providers of public UK networks are complying with the duties imposed on them by or under sections 105A to 105D , 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, and j any proposals that providers of UK networks may at any time have to do any of the following within the next 3 years— i to bring into operation a new very high capacity network, other than a mobile network, or ii to extend or upgrade any part of a fixed line network or its equivalent, such as a fixed wireless access network, so as to provide a download speed of at least 100 megabits per second. 2 For the purposes of sections 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, fa the extent to which providers of public UK services are complying with the duties imposed on them by or under sections 105A to 105D , 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 or 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. Reports on internet domain names OFCOM reports on internet domain names 134C 1 OFCOM must, if requested to do so by the Secretary of State— 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. Comparative overviews Comparative overviews of quality and prices 134D 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 Information required for purposes of certain OFCOM functions 135 1 OFCOM 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; 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. g a person who provides or has provided a number-independent interpersonal communications service and appears to OFCOM to have information relevant to their functions under section 14(1). 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 , 70 or 72A ; fa ascertaining whether a commitment which is made binding by a commitments decision continues to be effective for the purpose for which it was made binding under section 93A(8); g identifying markets and carrying out market analyses in accordance with, or for the purposes of, any provision of this Chapter; h . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i considering a matter in exercise of that duty; iza carrying out an assessment under section 105N; izb preparing a report under section 105Z; izc assessing the risk of a security compromise occurring in relation to a public electronic communications network or a public electronic communications service; izd preparing a report under section 105Z12; ia preparing a report under section 124F; ib carrying out an assessment, taking steps or providing a report under section 124G; ic preparing a report under section 134A; ica preparing a report under section 134AA; id preparing a report under section 134C; ie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . if . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 3A The descriptions of information that a person may be required to provide under subsection (1) include, in particular— za information concerning future developments of a public electronic communications network or public electronic communications service that could have an impact on the security of the network or service, 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. 3B In subsection (2)(g), “number-independent interpersonal communications service” means an interpersonal communications service, as defined by section 32A(2), other than— a a number-based interpersonal communications service; or b a service where the interpersonal and interactive communication is merely a minor ancillary feature that is intrinsically linked to another service. 3C OFCOM may require a person falling within subsection (2)— a to produce, generate or obtain security information for the purpose of providing it under subsection (1); b to collect or retain security information that the person would not otherwise collect or retain for the purpose of providing it under subsection (1); c to process, collate or analyse any information held by the person (including information the person has been required to collect or retain) for the purpose of producing or generating security information to be provided under subsection (1). 3D In subsection (3C) “ security information ” means information OFCOM consider necessary for the purpose of carrying out their functions under sections 105L to 105Z . 4 A person must comply with a requirement imposed under this section 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. Information required for related purposes 136 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 of carrying out comparative overviews under section 134D . 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. Restrictions on imposing information requirements 137 1 This section limits the purposes for which, and manner in which, requirements may be imposed 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; ... d the condition in question is one falling within section 51(1)(d) ; or e the condition in question is one relating to the effective and efficient use of telephone numbers. 2A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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— 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. 7 OFCOM are not to impose a requirement on a person under section 135(3C) except by a notice served on the person that sets out the requirement and OFCOM’s reasons for imposing it. Information required from communications providers 137A 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— 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. Section 137A: confidential matters 137B 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. Notification of contravention of information requirements 138 1 Where OFCOM determine that there are reasonable grounds for believing that a person is contravening, or has contravened, a requirement imposed under section 135, 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; ... c specifies the period during which the person notified has an opportunity to make representations; 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. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 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. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalties for contravention of information requirements 139 1 This section applies where a person is given a notification under section 138 which specifies a proposed penalty. 2 OFCOM may specify a penalty if— a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 specified in respect of each contravention. 4 Where such a 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. 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 any other penalty notified under this section is to be such amount not exceeding £2,000,000 as OFCOM determine to be both— a appropriate; and b proportionate to the contravention in respect of which it is imposed. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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). 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. Higher penalties for certain contraventions 139ZA 1 This section applies where— a a person is given a notification under section 138 which specifies a proposed penalty; and b the condition in subsection (2) or (3) is met. 2 The condition in this subsection is that— a the proposed penalty is in respect of a contravention of a requirement to provide information under section 135; and b the demand for the information contains a statement that OFCOM consider the information to be necessary for the purpose of— i carrying out any of their functions under sections 105L to 105Z ; ii preparing a report under section 105Z12 . 3 The condition in this subsection is that the proposed penalty is in respect of a contravention of a requirement imposed under subsection (3C) of section 135. 4 Section 139 applies in relation to the proposed penalty as if— a in subsection (4B), the maximum penalty specified were £50,000 per day; b in subsection (5), the maximum penalty specified were £10 million. 5 The Secretary of State may by regulations amend this section so as to make different provision as to the maximum penalty applying under section 139(4B) or (5). 6 No regulations are to be made containing provision authorised by subsection (5) unless a draft of the regulations has been laid before Parliament and approved by a resolution of each House. Enforcement of notification under section 138 139A 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. 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. Power to deal with urgent cases 139B 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. 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. Confirmation of direction under section 139B 139C 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. 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. Suspending service provision for information contraventions 140 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 serious or repeated contravention of requirements imposed under sections 135, 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 in the case of a repeated contravention, that an attempt, by the imposition of penalties or 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 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— 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 135, 136 and 137A, or any of them, to the extent that— 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. Suspending apparatus supply for information contraventions 141 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 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. Procedure for directions under ss. 140 and 141 142 1 Except in an urgent case, or 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. 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. 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 — 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. Enforcement of directions under ss. 140 and 141 143 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. 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. 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. Offences in connection with information requirements 144 1 A person who fails to provide information in accordance with a requirement of OFCOM under section 135 or 136 , 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 comply 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 135, 136 or 137A , he provides or publishes any information that is false in any material particular; and b at the time he provides or 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— a OFCOM have given the person a notification under section 138 in respect of that contravention; 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. 6 Nothing in this section applies in relation to a contravention of a requirement imposed on a person by virtue of section 135(2)(g). Statement of policy on information gathering 145 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 135, 136 and 137A ; and b the uses to which they are proposing to put information obtained under 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. Provision of information by OFCOM 146 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. Rights of third parties to use information without charge 146A 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. Abolition of telecommunications licensing etc. Repeal of provisions of Telecommunications Act 1984 147 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). Local authority powers in relation to networks and services Powers of local authorities in connection with networks 148 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). Grants for networks and services in Northern Ireland Grants by Department of Enterprise, Trade and Investment 149 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. Grants by district councils 150 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, 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. Interpretation of Chapter 1 Proposals of EU significance 150A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interpretation of Chapter 1 151 1 In this Chapter— ... “ 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); “bundled contract” has the meaning given by section 51(8); “commitments decision” means a decision under section 93A(8); “ 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; “ designated vendor ” means a person designated by a designation notice; “ designated vendor direction ” has the meaning given by section 105Z1 (1) ; “ designation notice ” has the meaning given by section 105Z8 (1) ; “ electronic communications apparatus ”— 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 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 person who, otherwise than as a communications provider, is a customer of the provider of that service; a person who makes use of the service otherwise than as a communications provider; or 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 , 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; “ inspection notice ” has the meaning given by section 105Z14 ; “ interconnection ” is to be construed in accordance with subsection (2); “ market power determination ” means— 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 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; “ monitoring direction ” has the meaning given by section 105Z12 ; “ network access ” is to be construed in accordance with subsection (3); “not-for-profit body” means a body which, by virtue of its constitution or any enactment— is required (after payment of outgoings) to apply the whole of its income, and any capital which it expends, for charitable or public purposes; and is prohibited from directly or indirectly distributing amongst its members any part of its assets (otherwise than for charitable or public purposes); “number-based interpersonal communications service” has the meaning given by section 32A(1); “ 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); “ 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 provider of a public electronic communications network; a provider of a public electronic communications service; or 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— any standards or specifications from time to time drawn up and published in accordance with Article 17 of the Framework Directive or Article 39 of the EECC Directive ; the standards and specifications from time to time adopted by— the European Committee for Standardisation, the European Committee for Electrotechnical Standardisation; or the European Telecommunications Standards Institute; and the international standards and recommendations from time to time adopted by— the International Telecommunication Union; the International Organisation for Standardisation; or the International Electrotechnical Committee; “ security compromise ”, in relation to a public electronic communications network or a public electronic communications service, has the meaning given by section 105A; “ 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; “social tariff condition” means a condition set as a social tariff condition under section 45; “ telephone number ” has the meaning given by section 56(5); “terminal equipment” means— equipment directly or indirectly connected to the interface of a public electronic communications network to send, process or receive information, with the direct or indirect connection being made by a wire or optical fibre or electromagnetically; or equipment which is capable of being used for the transmission or reception, or both, of radio communication signals by means of satellites or other space-based systems; ... “ 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. “ urgent enforcement direction ” has the meaning given by section 105Z22 . 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 a 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; 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. 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 section 51(9) . 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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, 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. Chapter 2 Spectrum use General functions relating to spectrum use General functions of OFCOM in relation to radio spectrum 152 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . United Kingdom Plan for Frequency Authorisation 153 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duties of OFCOM when carrying out spectrum functions 154 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Advisory service in relation to interference 155 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Directions with respect to the radio spectrum 156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure for directions under s. 156 157 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reservation of spectrum for multiplex use Special duty in relation to television multiplexes 158 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Recognised spectrum access Grant of recognised spectrum access 159 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Effect of grant of recognised spectrum access 160 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Charges in respect of grants of recognised spectrum access 161 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Conversion into and from wireless telegraphy licences 162 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Crown use of the radio spectrum Payments for use of radio spectrum by the Crown 163 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Limitations and exemptions applied to spectrum use Limitations on authorised spectrum use 164 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Terms etc. of wireless telegraphy licences 165 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exemption from need for wireless telegraphy licence 166 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Award and transfer of licences Bidding for wireless telegraphy licences 167 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Spectrum trading 168 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Variation and revocation of licences Variation and revocation of wireless telegraphy licences 169 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Wireless telegraphy register Wireless telegraphy register 170 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information requirements Information requirements in relation to wireless telegraphy licences 171 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Criminal proceedings etc. Contraventions of conditions for use of wireless telegraphy 172 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of “ repeated contravention ” in s. 172 173 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Procedure for prosecutions of wireless telegraphy offences 174 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Special procedure for contraventions by multiplex licence holders 175 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amount of penalty under s. 175 176 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . “ Relevant amount of gross revenue ” for the purposes of s. 176 177 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Proceedings for an offence relating to apparatus use 178 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Modification of penalties for certain wireless telegraphy offences 179 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fixed penalties for certain wireless telegraphy offences 180 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power of arrest 181 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Forfeiture etc. of restricted apparatus 182 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Construction of 1949 Act Modification of definition of “ undue interference ” 183 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Modification of definition of “ wireless telegraphy ” 184 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Chapter 3 Disputes and appeals Disputes Reference of disputes to OFCOM 185 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; d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 a 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. 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; b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. Power of OFCOM to invite parties to refer dispute 185A 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). Action by OFCOM on dispute reference 186 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. 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 In 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 six 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 In 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. Legal proceedings about referred disputes 187 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, 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. Procedure for resolving disputes 188 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— 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. Disputes involving other member States 189 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Resolution of referred disputes 190 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. 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 regulations 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— 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. and may determine the amount of the costs and when the costs are to be paid. 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). 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. OFCOM’s power to require information in connection with dispute 191 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; or b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeals Appeals against decisions by OFCOM, the Secretary of State etc. 192 1 This section applies to the following decisions— a a decision by OFCOM under this Part or 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; ii a restriction or condition set by regulations under section 109; iia an order under section 124P; iii a direction to OFCOM under section 132; iv a specific direction under section 5 of the Wireless Telegraphy Act 2006 that is not about the making of a decision specified in Schedule 8. 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 , 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. Reference of price control matters to the CMA 193 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 CMA for determination. 2 Where a price control matter is referred in accordance with Tribunal rules to the CMA for determination, the 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 , 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 the 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 CMA consider appropriate. 3 The provision that may be made by Tribunal rules about the determination of a price control matter referred to the CMA in accordance with the rules includes provision about the period within which that matter is to be determined by the CMA . 4 Where the CMA 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 CMA under this section, the Tribunal, in deciding the appeal ..., must decide that matter in accordance with the determination of the 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 CMA 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 CMA 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. 10 In this section and 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). Recovery of CMA's costs in respect of price control references 193A 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”). 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. Composition of Competition Commission for price control references 194 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Disposal of appeals under section 192 (other than against certain decisions of Secretary of State) 194A 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. 2A In a case where the appeal is against a relevant security decision of OFCOM, the Tribunal is to apply those principles without taking any special account of the merits of the case. 2B Subsection (2A) has effect notwithstanding any assimilated case law ... 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 “ assimilated case law ” has the meaning given by section 6(7) of the European Union (Withdrawal) Act 2018; “ the decision-maker ” means the person who made the decision appealed against; “ relevant security decision ” means a decision under any of sections 105I, 105L to 105O and 105U to 105W; ... Disposal of appeals under section 192 against certain decisions of Secretary of State 195 1 This section applies to an appeal against a decision referred to in section 192(1)(d)(i), (ii), (iia) or (iv). 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 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 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 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 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. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appeals from the Tribunal 196 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— 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). Interpretation of Chapter 3 Interpretation of Chapter 3 197 1 In this Chapter— “ 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Part 3 Television and Radio Services ETC Chapter 1 The BBC, C4C , S4C and the Gaelic media service The BBC Functions of OFCOM in relation to the BBC 198 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, to 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. 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, 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. 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. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Penalties for failure to provide information 198ZA 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, 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). C4C C4C's functions in relation to media content 198A 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— 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— television programme services, additional television services or digital additional television services, on-demand programme services, or 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)). C4C’s duties in relation to commissioning programmes 198AA 1 C4C must take steps to enable competition for commissions from C4C to make programmes, other than advertisements, for inclusion in services provided by C4C that fall within subsection (2) . 2 A service falls within this subsection if it is— a a television broadcasting service, b a television licensable content service, c a digital television programme service, d an on-demand programme service that is or forms part of a designated internet programme service, or e a non-UK on-demand programme service that is or forms part of a designated internet programme service. 3 C4C must put in place and adhere to procedures that facilitate fair competition for such commissions, including procedures for referring disputes with C4C to mediation. 4 In this section, “ designated internet programme service ” has the same meaning as in Part 3A (see section 362AZ12 ). Statement Statements of media content policy and commissioning policy 198B 1 C4C must prepare a statement of media content policy— 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. 1A C4C must prepare a statement of commissioning policy at the same time as they prepare a statement of media content policy. 2 C4C must monitor their performance in carrying out the proposals contained in their statements of media content policy or commissioning 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. 3A A statement of commissioning policy must— a set out C4C’s proposals for securing that, during the following year, they will discharge their duties under section 198AA , and b include a report on their performance in carrying out the proposals contained in the previous statement. 4 In preparing the statement a statement of media content policy or commissioning policy , C4C must— a have regard to guidance given by OFCOM , and b consult OFCOM. 5 C4C must publish each statement of media content policy or commissioning 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. OFCOM reports on C4C's media content duties and commissioning duties 198C 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 sections 198A and 198AA , 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. Directions in relation to C4C's media content duties and commissioning duties 198D 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 , 198AA or section 198B(1), (3) 198B(1), (1A), (3), (3A) 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 or (as the case may be) commissioning 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 or (as the case may be) commissioning 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. Other Functions of C4C 199 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 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. 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. Removal of members of C4C 200 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. Deficits and surpluses of C4C 201 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. Borrowing limit for C4C 202 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. S4C (Sianel Pedwar Cymru) Function of OFCOM in relation to S4C 203 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 S4C . Welsh Authority’s function of providing S4C and S4C Digital 204 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. 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”). 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. Powers to provide other services 205 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 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. Other activities of Welsh Authority 206 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— 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. S4C finances 207 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 S4C 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 S4C 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 S4C are to be liable to pay OFCOM such sums in respect of the carrying out by OFCOM of their functions in relation to S4C as may be— a agreed from time to time between S4C 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 . 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The Gaelic Media Service The Gaelic Media Service 208 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; 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. Membership of the Service 209 After section 183 of the 1990 Act there shall be inserted— Membership of the Gaelic Media Service 183A 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. 11 An order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament. Supplementary provisions about the Service 210 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. Chapter 2 Regulatory Structure for Independent Television Services Preliminary Regulation of independent television services 211 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 S4C ; 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 meet the appropriate condition in subsection (4); c digital television programme services that— i can be accessed by means of a regulated electronic programme guide and are not exempt foreign services, or ii cannot be accessed by means of a regulated electronic programme guide but are provided by a person who is within the jurisdiction of the United Kingdom for the purposes of the European Convention on Transfrontier Television and included in broadcasts to which that Convention applies. 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 meet the appropriate condition in subsection (4); 4 For the purposes of subsections (2)(b) and (3)(b) “the appropriate condition” is— a if or to the extent that the service does not consist of an electronic programme guide, that— i the service can be accessed by means of a regulated electronic programme guide and is not an exempt foreign service, or ii the service cannot be accessed by means of a regulated electronic programme guide but is provided by a person who is within the jurisdiction of the United Kingdom for the purposes of the European Convention on Transfrontier Television and included in broadcasts to which that Convention applies; b if or to the extent that the service consists of an electronic programme guide, that the electronic programme guide is a regulated electronic programme guide. 5 In this section— a “ electronic programme guide ” has the meaning given by section 310(8), b “ regulated electronic programme guide ” has the meaning given by section 211A, and c “ exempt foreign service ” has the meaning given by section 211B. Regulated electronic programme guides 211A 1 This section has effect for the interpretation of section 211. 2 “ Regulated electronic programme guide ” means an electronic programme guide which— a is provided, under a licence to provide television licensable content services or digital additional television services, by a person who was providing an electronic programme guide under that licence immediately before IP completion day, b is provided by a person designated by the Secretary of State by regulations or by a person having a prescribed connection with a person so designated, or c falls within a prescribed description. 3 In subsection (2) “ prescribed ” means prescribed by the regulations. 4 Regulations under subsection (2)(b) may only designate a person who, at the time when the regulations are made— a is providing an electronic programme guide that is used by members of the public in the United Kingdom as a facility for obtaining access to television programme services, or b is providing, or has informed OFCOM of an intention to provide, an electronic programme guide with a view to its use by members of the public in the United Kingdom as such a facility. 5 The electronic programme guides that are to be taken for the purposes of this section to be used by members of the public include any electronic programme guide that— a is used, or available for use, only by 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. 6 Before making regulations under subsection (2), the Secretary of State must consult OFCOM. 7 In this section “ electronic programme guide ” has the meaning given by section 310(8). Exempt foreign services 211B 1 In section 211 “ exempt foreign service ” means— a a service provided by a person who is for the purposes of the European Convention on Transfrontier Television within the jurisdiction of a CTT State other than the United Kingdom, or b any of the following services— i the services known as RTÉ1 and RTÉ2 provided by Raidió Teilifís Éireann, and ii the service known as TG4 provided by Teilifís na Gaeilge. 2 The Secretary of State may by regulations amend subsection (1)(b)— a by adding a reference to a service appearing to the Secretary of State to be a public service channel established in Ireland, b by amending the description of a service for the time being specified in that provision, or c by omitting the reference to a service for the time being specified in that provision. 3 In this section “ CTT State ” means a State which is for the time being a party to the European Convention on Transfrontier Television. Abolition of function of assigning television frequencies 212 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. Abolition of licensing for local cable systems 213 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. Channels 3 and 5 Digital Channel 3 and Channel 5 licences 214 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 b shall be renewable, on one or more occasions, under section 216. 6 For the purposes of subsection (5) a licensing period , in relation to a licence, is— a the period beginning with the commencement of this section and ending with the initial expiry date for that type of licence ; or b any subsequent period of ten years beginning with the end of the previous licensing period for 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). Replacement of existing Channel 3 and Channel 5 licences 215 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; 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— 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. Renewal of Channel 3 and 5 licences 216 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. 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— 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. 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 subsection (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 — 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, 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 , in relation to a licence, is— a the period beginning with the commencement of this section and ending with the initial expiry date for that type of licence ; or b any subsequent period of ten years beginning with the end of the previous licensing period for that type of licence . 13 In this section “ tender notice ” means a notice under section 15 of the 1990 Act. Renewal of Channel 3 licences: determination of licence areas 216A 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. Financial terms of licence renewed under s. 216 217 1 The determination under section 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. 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. ... Duty to secure the provision of a public teletext service 218 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty to report on public teletext service 218A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Licensing of the public teletext service 219 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Delegation of provision of public teletext service 220 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Replacement of existing public teletext provider’s licence 221 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Renewal of public teletext licence 222 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Financial terms of licence renewed under s. 222 223 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of initial expiry date Meaning of “ initial expiry date ” 224 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 The Secretary of State may (on one or more occasions) by order postpone the initial expiry date for one or more of the types of licence mentioned in subsection (1) . 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. Reviews relating to licensing of Channels 3 & 5 ... Application for review of financial terms of replacement licences 225 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 for 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— 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 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. Application for review of financial terms in consequence of new obligations 226 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; or b Channel 5; ... c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. Reviews under ss. 225 and 226 227 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— 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; ... b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. Giving effect to reviews under ss. 225 and 226 228 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. 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 ” , in relation to a licence, means— the period beginning with the commencement of this section and ending with the initial expiry date for that type of licence ; or any subsequent period of ten years beginning with the end of the previous licensing period for that type of licence ; “ notional expiry date ” means a first or subsequent notional expiry date within the meaning of section 225. Report in anticipation of new licensing round 229 1 OFCOM must, in anticipation of the end of each licensing period for 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 holder 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 licence 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 that 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 that 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. 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 Where this subsection applies— a the 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 for 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 ” , in relation to a licence, means— the period beginning with the commencement of this section and ending with the initial expiry date for that type of licence ; or any subsequent period of ten years beginning with the end of the previous licensing period for that type of licence ; “ relevant licence ” means— a licence to provide a Channel 3 service; or a licence to provide Channel 5; ... ... Orders suspending rights of renewal 230 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 a 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 (but see subsection (7)) . 3 An order under this section preventing the renewal of a 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 a 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 a 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. 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 a 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 a 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 ” , in relation to a licence, means the licensing period ending with the initial expiry date for that type of licence ; and “ licensing period ” has the same meaning as in section 229. Replacement of Channel 4 licence Replacement of Channel 4 licence 231 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 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; 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). Television licensable content services Meaning of “television licensable content service” 232 1 In this Part “ television licensable content service ” means (subject to section 233) any service , 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 more of the following means— a the broadcasting of the service or dissociable section of the service (whether by the person providing it or by another) from a satellite; ... aa the broadcasting of the service or 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 or 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 , 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 or has as its principal purpose the provision of television programmes or electronic programme guides, or both. 3 Where— a a 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). 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— 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 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— assistance for disabled people in relation to some or all of the programmes included in the main service; a service (apart from advertising) which is not an electronic programme guide but relates to the promotion or listing of programmes so included; or any other service (apart from advertising) which is ancillary to one or more programmes so included and relates directly to their contents. Services that are not television licensable content services 233 1 A service , 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 television multiplex service or a general multiplex service . 2 A service , 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; or c a licence to provide additional television services. 3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A service , 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 , 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 , 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. 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; ... “ 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. Modification of ss. 232 and 233 234 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; 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. Licensing of television licensable content services 235 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. 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. 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. 8 A licence to provide a television licensable content service which authorises the provision of an electronic programme guide (“the guide”) must also include such conditions as OFCOM consider appropriate for ensuring that, at any time when the guide is a regulated electronic programme guide as defined by section 211A, the only television programme services that are listed or promoted by, or which can be accessed through, the guide are television programme services that— a are provided by or under a licence under this Part, or b do not fall, in pursuance of section 211(1) of the Communications Act 2003, to be regulated by OFCOM. Direction to licensee to take remedial action 236 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. 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. Penalties for contravention of licence condition or direction 237 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. 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. Revocation of television licensable content service licence 238 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, 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. Action against licence holders who incite crime or disorder 239 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; 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. Abolition of separate licences for certain television services 240 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 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— was granted by the Independent Television Commission under Part 1 of the 1990 Act before the television transfer date; and is in force immediately before the television transfer date as a licence authorising the provision of a formerly regulated service. Television multiplex services Television multiplex services 241 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 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Composition of services in television multiplexes 242 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 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) ” . Powers where frequencies reserved for qualifying services 243 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 S4C ; e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Local digital television services Local digital television services 244 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). 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. Chapter 3 Regulatory Structure for Independent Radio Services Preliminary Regulation of independent radio services 245 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. c digital sound programme services that do not fall within paragraph (a) or (b) but— i are provided from a place in a qualifying country, and ii are or are intended to be broadcast by means of a local radio multiplex service or small-scale radio multiplex service. 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. 3A The Secretary of State may, by regulations, amend or otherwise modify Schedule 2 to the Broadcasting Act 1990 (restrictions on the holding of licences) in its application to digital sound programme services that fall within subsection (1)(c). 3B The regulations may in particular— a disapply or modify existing restrictions; b provide for new restrictions to apply. 3C In subsection (1)(c)— “ qualifying country ” means a country or territory outside the United Kingdom that is specified in regulations made by the Secretary of State for the purposes of subsection (1)(c); “ small-scale radio multiplex service ” has the same meaning as in section 258A. 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 an 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. Abolition of function of assigning radio frequencies 246 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. Radio licensable content services Meaning of “radio licensable content services” 247 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. Services that are not radio licensable content services 248 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. 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. Modification of ss. 247 and 248 249 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— 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. Licensing of radio licensable content services 250 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 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). Abolition of separate licences for certain sound services 251 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— was granted by the Radio Authority under Part 3 of the 1990 Act before the radio transfer date; and is in force immediately before the radio transfer date as a licence authorising the provision of a formerly regulated service. Licence periods etc. Extension of licence periods 252 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)— 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. Extension and modification of existing licences 253 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 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; “ 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). Renewal of local licences 254 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; . Extension of special application procedure for local licences 255 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. Provision of simulcast radio services Definition of simulcast radio services 256 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. Promotion of simulcast radio services 257 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— 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— Licence conditions relating to simulcast radio services 100A 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. Multiplexes broadcasting sound programmes Radio multiplex services 258 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 c a digital additional sound service. Small-scale radio multiplex services 258A 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 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. Composition of services in radio multiplexes 259 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 ” . Digital sound services for inclusion in non-radio multiplexes 260 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. Renewal of radio multiplex licences 261 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 b in any other case, for a period of eight years beginning with that date. Community radio Community radio 262 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. Chapter 4 Regulatory provisions Application of regulatory regimes Application of regulatory regimes 263 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 or for Channel 5 (“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. 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. The public service remit for television OFCOM reports on the fulfilment of the public service remit 264 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. 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 remit for television in the United Kingdom has, during that period, been fulfilled by the public service broadcasters (taking them all together over the period as a whole); and b an obligation, with a view to maintaining and strengthening the quality of the audiovisual content made available in order to fulfil the public service remit for television in the United Kingdom, to prepare a report on the matters found in 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. The public service remit for television in the United Kingdom is fulfilled where the public service broadcasters (taken together) make available a broad range of audiovisual content— a in a manner which, taking into account when and how their relevant audiovisual services are received or accessed, is likely to meet the needs and satisfy the interests of as many different audiences as practicable, and b which meets the needs and satisfies the interests of as many different available audiences as practicable as regards the nature of the audiovisual content made available and the subject-matters covered by it, and that range of audiovisual content includes material satisfying the requirements in subsection (5) and itself satisfies the requirement in subsection (6) . 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). The requirements in this subsection are— a that the audiovisual content made available by the public service broadcasters (taken together) provides, 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— i in, and in the different parts of, the United Kingdom, and ii from around the world; b that the audiovisual content made available by the public service broadcasters (taken together) comprises a public service for the dissemination of information and for the provision of education and entertainment, which includes what appears to OFCOM to be— i a sufficient quantity of audiovisual content that reflects 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, and ii a sufficient quantity of audiovisual content that is in, or mainly in, a recognised regional or minority language; c that the audiovisual content made available by the public service broadcasters (taken together) includes an appropriate range and quantity of audiovisual content, contained in original productions, that— i reflects the lives and concerns of children and young people in the United Kingdom, ii is of an educational nature, and iii helps them to understand the world around them; and d that the audiovisual content made available by the public service broadcasters (taken together) includes— i an appropriate range of independent productions with an appropriate combined duration, ii an appropriate range of original productions with an appropriate combined duration, and iii so far as the audiovisual content consists of programmes made in the United Kingdom, an appropriate range of programmes made outside the M25 area with an appropriate combined duration. 6 A manner of fulfilling the purposes of public service television broadcasting in the United Kingdom is compatible with this subsection if it ensures— 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. The requirement in this subsection is that the range of genres of audiovisual content made available by the public service broadcasters (taken together) constitutes an appropriate range of genres. 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. Particular audiovisual content made available by a public service broadcaster is not to be taken into account for the purpose of determining the extent to which the public service remit for television in the United Kingdom is fulfilled unless the broadcaster has taken steps to ensure that the audiovisual content in question may be received or accessed in accordance with subsection (8) by so much of the broadcaster’s intended audience as is reasonably practicable. 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 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. Audiovisual content may be received or accessed in accordance with this subsection if— a the audiovisual content, and b the relevant audiovisual service by means of which the audiovisual content is provided, may be received or accessed in intelligible form and free of charge. 8A Any requirement to pay sums in accordance with regulations under section 365 is to be disregarded for the purpose of determining whether audiovisual content may be received or accessed in accordance with subsection (8) . 8B Particular audiovisual content made available by a public service broadcaster by means of an on-demand programme service or a non-UK on-demand programme service is not to be taken into account for the purpose of determining the extent to which the public service remit for television in the United Kingdom is fulfilled unless the audiovisual content in question is available for a period of not less than 30 days beginning with the day on which that content is first made available for viewing. 8C Subsection (8B) does not apply to news programmes or programmes containing coverage of sporting events that are made available by a public service broadcaster by means of an on-demand programme service or a non-UK on-demand programme service. 8D The Secretary of State may by regulations amend subsection (8B) so as to substitute a different period for the period for the time being specified there. 8E In carrying out a review under this section OFCOM must consider— a the costs to public service broadcasters of fulfilling the public service remit for television in the United Kingdom; b the sources of income available to them for meeting those costs. 8F 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 the public service remit for television in the United Kingdom has been fulfilled; b specify, and comment on, whatever changes appear to OFCOM to have occurred, during that period, in the manner in which that remit is fulfilled; c set out the findings of OFCOM on their consideration of the matters mentioned in subsection (8E) and any conclusions they have arrived at in relation to those findings; and d set out OFCOM’s conclusions on the current state of the audiovisual content made available by public service broadcasters in order to fulfil the public service remit for television in the United Kingdom. 9 In performing their duties under this section, OFCOM must have regard, in particular, to— a every statement of programme ... 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. The following are relevant audiovisual services for the purposes of this section— a a television broadcasting service; b a television licensable content service; c a digital television programme service; d an on-demand programme service; e a non-UK on-demand programme service; f a service, other than a service referred to in any of paragraphs (a) to (e) , which falls within subsection (11A) . 11A A service falls within this subsection if it is a service, or a dissociable section of a service, which has the following characteristics— a its principal purpose is the provision of programmes, b the programmes which it provides are accessed by viewers by means of the internet, c there is a person who has general control over which programmes are comprised in the service or the dissociable section of the service (whether or not the person has control of the content of individual programmes or the distribution of the service), and d the service or the dissociable section of the service is available for use by members of the public in all or part of the United Kingdom. 11B The services that are to be taken for the purposes of subsection (11A) (d) 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 otherwise requesting its provision, is offered or made available to members of the public. 12 The following are public service broadcasters for the purposes of this section— a the BBC; b S4C; and c the providers of the licensed public service channels; ... d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. For the purposes of this section, audiovisual content is made available by a public service broadcaster if— a it is provided by means of a relevant audiovisual service provided by the broadcaster, or b it is provided by means of a relevant audiovisual service provided by another person, under arrangements made between the broadcaster and that other person. 14 In the case of a service falling within subsection (11) (f) , the person, and the only person, who is to be treated for the purposes of this section as providing the service is the person described in subsection (11A) (c) ; and section 362(3) applies in relation to such a service as it applies in relation to a service referred to in section 362(2). 15 In this section, a reference to the provision of an on-demand programme service or a non-UK on-demand programme service is to be read in accordance with section 368R(5) and (6). 16 In this section— “ audiovisual content ” means the programmes, other than advertisements, included in a relevant audiovisual service; “ children ” means persons under the age of 18; “ independent production ”— in relation to the provider of a licensed public service channel, has the same meaning as in section 277; in relation to the BBC, has the same meaning as in paragraph 1 of Schedule 12; in relation to S4C, has the same meaning as in paragraph 7 of Schedule 12; “ intended audience ” means— in relation to the provider of a Channel 3 service provided for an area of the United Kingdom, members of the public in that area; in relation to any other public service broadcaster, members of the public in the United Kingdom; “ original production ”— in relation to the provider of a licensed public service channel, has the same meaning as in section 278; in relation to the BBC, has the meaning given by the BBC Charter and Agreement; in relation to S4C, has the same meaning as in paragraph 8 of Schedule 12; “ programme ” means any programme (with or without sounds) which consists of moving or still images or of legible text or of a combination of those things; “ recognised regional or minority language ” means Welsh, the Gaelic language as spoken in Scotland, Irish, Scots, Ulster Scots or Cornish. OFCOM reports: wider review and reporting obligations 264A 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— television and radio services, on-demand programme services, and 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)). Public service remits of licensed providers 265 1 The regulatory regime for every licensed public service channel ... includes a condition requiring the provider of the channel ... to fulfil the public service remit for that channel .... 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. The public service remit for every Channel 3 service and for Channel 5 is to make available a range of high quality and diverse audiovisual content— a which is all capable of being taken into account for the purpose of determining the extent to which the public service remit for television in the United Kingdom is fulfilled (see section 264 (7) to (8C) ), and b which, considered as a whole, constitutes an adequate contribution to the fulfilment of that remit. 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. The public service remit for Channel 4 is to make available a broad range of high quality and diverse audiovisual content— a which, in particular— i demonstrates innovation, experiment and creativity in the form and content of programmes, ii appeals to the tastes and interests of a culturally diverse society, iii includes a significant quantity and range of programmes of an educational nature and other programmes of educative value, and iv exhibits a distinctive character, b which is all capable of being taken into account for the purpose of determining the extent to which the public service remit for television in the United Kingdom is fulfilled, and c which, considered as a whole, constitutes an adequate contribution to the fulfilment of that remit. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 In this section, a reference to making available audiovisual content, in relation to a licensed public service channel, is a reference to the provider of that channel making available audiovisual content. 7 Section 264(13) applies for the purposes of this section as it applies for the purposes of section 264. Statements of programme policy 266 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. 2A The condition must require such proposals— a to state whether two or more relevant audiovisual services (including the channel) are proposed to be used to fulfil the public service remit for the channel, and b if so, to identify, in relation to each of the relevant audiovisual services, its proposed contribution to the fulfilment of the remit. 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— 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) section 264 (4) to (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. Changes of programme policy 267 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. 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 which— a the channel, or b any other relevant audiovisual service which is being used to fulfil the public service remit for 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. Statements of service policy by the public teletext provider 268 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Changes of service policy 269 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement of public service remits 270 1 This section applies if OFCOM are of the opinion that the provider of a licensed public service channel ...— a has failed to fulfil the public service remit for that channel ...; 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 ... made (or treated as made) by the provider under section 266 ...; 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 ... 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 ... 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 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— a omits the conditions imposed by virtue of sections 265 to 267 ; 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 channel ; 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 267 again to be included in the regulatory regime for the channel 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Power to amend public service remits 271 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 ...; 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. 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. Remedying failure by C4C to perform media content duties 271A 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 or 198AA , 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 or 198AA . 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. Must-offer obligations etc. affecting public service television Must-offer obligations in relation to networks 272 1 The regulatory regime for— a every licensed public service channel, b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 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— 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; if the channel or other service is one provided for members of a particular community, members of that community; and 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. Must-offer obligations in relation to satellite services 273 1 The regulatory regime for— a every licensed public service channel, b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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— 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— 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; if the channel or other service is one provided for members of a particular community, members of that community; and 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— consists in or involves the broadcasting of television programme services from a satellite; and 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. Securing reception of must-provide services in certain areas 274 1 The regulatory regime for— a every licensed public service channel, b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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); 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— 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; if the service is one provided for members of a particular community, members of that community; and 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. Must-provide services for the purposes of s. 274 275 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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). Co-operation with the public teletext provider 276 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Programming quotas for public service television Programming quotas for independent productions 277 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. The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing that in each year— a the provider of the licensed public service channel makes available qualifying audiovisual content that includes a range and diversity of independent productions commissioned in accordance with the provider’s commissioning code, and b the duration (in total) of those independent productions is at least the number of hours specified by order of the Secretary of State. 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. — a in each year, the provider of the licensed public service channel makes available qualifying audiovisual content that includes a range and diversity of independent productions commissioned in accordance with the provider’s commissioning code, and b the cost (in total) of the acquisition of those independent productions is at least the amount specified in the order. 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 b thereby increasing the percentage the number of hours or (as the case may be) the amount 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 S4C . 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. 12A If a draft of a statutory instrument containing an order under this section would, apart from this subsection, be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not such an instrument. 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; “ commissioning code ”, in relation to a provider, means the code of practice drawn up by the provider in pursuance of conditions included in the provider’s licence by virtue of section 285; “ programme ” does not include an advertisement; and “ programming budget ” means the budget for the production and acquisition of qualifying programmes. 14 See also sections 278B and 278C (which make further provision for the interpretation of this section etc). Programming quotas for original productions 278 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. The regulatory regime for every licensed public service channel includes the conditions that OFCOM consider appropriate for securing that in each year— a the provider of the licensed public service channel makes available qualifying audiovisual content that includes a range of original productions, b the duration (in total) of those original productions is at least the number of hours that OFCOM consider appropriate, and c if OFCOM consider it appropriate, the additional peak viewing time objective described in subsection (1A) is met. 1A The additional peak viewing time objective is that (out of the number of hours determined by OFCOM for the purposes of subsection (1) (b) ) at least the number of hours that OFCOM consider appropriate is allocated to the broadcasting of original productions included in the channel at peak viewing times. 2 The proportion determined by OFCOM for the purposes of subsection (1)— 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. 7A An order under subsection (6) may— a authorise OFCOM to provide in a condition included in a licence by virtue of this section that original productions of a description specified in the licence may not be counted towards meeting the condition; b require OFCOM to prepare and publish guidance about the determination of whether an original production falls within a description included in a licence by virtue of paragraph (a); c authorise OFCOM to provide in a condition included in a licence by virtue of this section that the holder of the licence must have regard to that guidance. 8 Before making an order under this section the Secretary of State must consult OFCOM, the BBC and S4C . 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. 12 See also sections 278B and 278C (which make further provision for the interpretation of this section etc). Quotas: meaning of “qualifying audiovisual content” etc 278B 1 In this Part, “ qualifying audiovisual content ” means any material, other than advertisements, included in a qualifying audiovisual service. 2 For the purposes of this Part, a person makes available qualifying audiovisual content if— a that content is provided by— i the person, or ii a person associated with the person, under arrangements made between the person and that associated person, by means of a qualifying audiovisual service provided by the person or (as the case may be) that associated person, b that content, and the qualifying audiovisual service by means of which it is provided, may be received or accessed in intelligible form and free of charge, and c where the qualifying audiovisual service in question is an on-demand programme service, that content is available for the period described in section 264 (8B) unless it is excepted by section 264 (8C) . 3 Where the period described in section 264 (8B) falls partly in one year and partly in another year, the person is to be regarded for the purposes of this Part as making the qualifying audiovisual content available in the year in which the period begins. 4 Section 362AZ12 (6) (meaning of references to a person associated with a public service broadcaster) applies for the purposes of subsection (2) (a) as it applies for the purposes of Part 3A. 5 Subsection (8A) of section 264 applies for the purposes of subsection (2) (b) as it applies for the purposes of subsection (8) of that section. 6 For the purposes of this Part, the following are qualifying audiovisual services— a television broadcasting services; b on-demand programme services that are, or form part of, designated internet programme services; c any other service that— i is a relevant audiovisual service for the purposes of section 264 (see section 264 (11) ), and ii is specified, or falls within a description specified, in regulations made by the Secretary of State. 7 In relation to a qualifying audiovisual service that is an on-demand programme service, references in this Part to “ provide ” (and related expressions) are to be read in accordance with section 368R(5). 8 Before making regulations under subsection (6) (c) , the Secretary of State must consult OFCOM. 9 A statutory instrument containing regulations under subsection (6) (c) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. 10 In this section, “ designated internet programme service ” has the same meaning as in Part 3A (see section 362AZ12 ). Quotas: further provision about their fulfilment 278C 1 In this section, a “ quota condition ” means— a a condition that forms part of the regulatory regime of a licensed public service channel by virtue of— i section 277 (1) or (4) (quotas for independent productions), ii section 278 (1) (quotas for original productions), iii section 278A (4) (additional quotas), or iv section 286(1)(a) and (aa) or (3)(a) and (aa) or 288(1)(a) and (aa) (regional programme-making quotas relating to duration); b a condition that forms part of the regulatory regime of a licensed public service channel by virtue of section 286(1)(c) or (3)(c) or 288(1)(c) (regional programme-making quotas relating to expenditure), where the condition is framed by reference to the making available of qualifying audiovisual content; c a duty of the BBC under or by virtue of paragraph 1(1) or (4) of Schedule 12 (BBC quotas for independent productions); d a duty of S4C under or by virtue of paragraph 7(1) or (4) or 8(1) of Schedule 12 (S4C quotas for independent productions and original productions). 2 The Secretary of State must by regulations make provision determining whether qualifying audiovisual content that is made available by a person in the circumstances described in subsection (3) may be counted towards meeting a quota condition. 3 Those circumstances are that the person has previously made available audiovisual content consisting of the same or substantially the same material (whether in the same year or a previous year). 4 For the purposes of subsection (3)— a “ audiovisual content ” has the same meaning as in section 264; b section 264 (13) (interpretation of “made available”) applies as it applies for the purposes of section 264. 5 Except in the case of a quota condition relating to independent productions, regulations under subsection (2) may, instead of determining the matter described in that subsection, require OFCOM to determine it. 6 Where the regulations require OFCOM to determine the matter, OFCOM must do so— a in relation to a quota condition falling within subsection (1) (a) or (b) , by conditions included in the licence of the provider of the licensed public service channel, and b in relation to a quota condition falling within subsection (1) (d) , by a direction given by OFCOM to S4C. 7 Before giving a direction under subsection (6) (b) , OFCOM must consult S4C. 8 In relation to a quota condition falling within subsection (1) (a) or (b) , the reference in subsection (3) to the person includes a reference to any person who previously held the licence to provide the licensed public service channel in question. 9 Before making regulations under subsection (2) , the Secretary of State must consult OFCOM. 10 A statutory instrument containing regulations under subsection (2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. News provision etc. on public service television News and current affairs programmes 279 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). Appointed news providers for Channel 3 280 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— 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. Disqualification from appointment as news provider 281 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. 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 . Power to repeal or modify Channel 3 news provider provisions 282 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. 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. News providers for Channel 5 283 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. News provision on the public teletext service 284 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Independent and regional productions and programmes for public service television Code relating to programme commissioning 285 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. that the provider will apply— a when agreeing terms for the commissioning of independent productions that will be included in television broadcasting services; b when agreeing terms for the commissioning of independent productions that will be included in other qualifying audiovisual services but which the provider wishes to count towards meeting the conditions included in the provider’s licence by virtue of section 277 (1) or (4) (programming quotas for 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; 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. h that such information about the application of the code as OFCOM consider appropriate is given to persons who make independent productions that are to be commissioned in accordance with the code. 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 S4C ; 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. 10 See also section 278B (which makes further provision for the interpretation of this section). Regional programme-making for Channels 3 and 5 286 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 in each year — 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; that the provider of that service makes available qualifying audiovisual content that, so far as it consists of Channel 3 programmes made in the United Kingdom, includes Channel 3 programmes made outside the M25 area; aa that the duration (in total) of the Channel 3 programmes that are made in the United Kingdom outside the M25 area is at least the number of hours that OFCOM consider appropriate; b that the Channel 3 programmes that are made in the United Kingdom outside the M25 area those programmes (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 a suitable amount 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 in each year — 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; that the provider of that Channel makes available qualifying audiovisual content that, so far as it consists of programmes made in the United Kingdom, includes programmes made outside the M25 area; aa that the duration (in total) of the programmes that are made in the United Kingdom outside the M25 area is at least the number of hours that OFCOM consider appropriate; b that the programmes for such viewing that are made in the United Kingdom outside the M25 area those programmes (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 a suitable amount of the expenditure of the provider of Channel 5 on programmes made in the United Kingdom for viewing on that Channel , or for viewing by means of any other qualifying audiovisual service provided by the provider of 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). 6 A proportion An amount of expenditure 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 a significant amount of the expenditure in question. 7 In this section— “ Channel 3 programmes ” means programmes made for viewing on Channel 3 , or for viewing by means of any other qualifying audiovisual service provided by a provider of a Channel 3 service, 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— expenditure which constitutes an investment in or is otherwise attributable to the making of the programme; or 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. 8 See also sections 278B and 278C (which make further provision for the interpretation of this section etc). Regional programmes on Channel 3 287 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— 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. 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 ”— 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; 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. Regional programme-making for Channel 4 288 1 The regulatory regime for Channel 4 includes the conditions that OFCOM consider appropriate for securing in each year — 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; that the provider of that Channel makes available qualifying audiovisual content that, so far as it consists of programmes made in the United Kingdom, includes programmes made outside the M25 area; aa that the duration (in total) of the programmes that are made in the United Kingdom outside the M25 area is at least the number of hours that OFCOM consider appropriate; b that the programmes for such viewing that are made in the United Kingdom outside the M25 area those programmes (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 a suitable amount of the expenditure of C4C on programmes made in the United Kingdom for viewing on Channel 4 , or for viewing by means of any other qualifying audiovisual service provided by the provider of Channel 4, 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 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 An amount of expenditure 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 a significant amount of the expenditure in question. 5 In this section— “ expenditure ”, in relation to a programme, means— expenditure which constitutes an investment in or is otherwise attributable to the making of the programme; or 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. 6 See also sections 278B and 278C (which make further provision for the interpretation of this section etc). Regional matters in the public teletext service 289 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Provision of children's programmes Provision of children's programmes 289A 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— 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 Proposals for arrangements 290 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 , in relation to each holder of such a licence, available for inclusion in one or more qualifying audiovisual services provided by that holder or a person associated with that holder ; 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. holders of such licences and persons associated with any of those holders to provide qualifying audiovisual services that (taken as a whole) are able to compete effectively with other television programme services and on-demand programme services provided in the United Kingdom. 5 Section 362AZ12 (6) (meaning of references to a person associated with a public service broadcaster) applies for the purposes of subsection (4)(b) and (c) as it applies for the purposes of Part 3A. 6 See also section 278B (which makes further provision for the interpretation of this section). Obligation as to making and continuance of approved arrangements 291 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 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. OFCOM’s power to impose arrangements 292 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. 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. Review of approved networking arrangements etc. 293 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 five years 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 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. Supplemental provision about networking arrangements 294 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. Special obligations for Channel 4 Involvement of C4 Corporation in programme-making 295 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Schools programmes on Channel 4 296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Channel 4 contribution towards national television archive 297 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. ... Conditions prohibiting interference with other services 298 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sporting and other events of national interest Categorisation of listed events 299 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— 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. Effects of categorisation of listed events 300 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Code relating to listed events 301 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 circumstances it is unreasonable to expect a television programme provider to comply with section 101(1) or section 101B(1). 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Regulations about coverage of listed events 302 1 After section 104 of the 1996 Act there shall be inserted— Regulations about coverage of listed events 104ZA 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; . Television services for people with disabilities Code relating to provision for people with disabilities 303 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 people 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. 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; 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 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 S4C 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— is or is included in a television licensable content service or a digital television programme service; and consists of— 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 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. Procedure for issuing and revising code under s. 303 304 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 people 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 people 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. Meaning of “ relevant date ” in s. 303 305 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 S4C , 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. Power to modify targets in s. 303 306 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 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. Observance of code under s. 303 307 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. Disabled people: point of contact 307A 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. Assistance for the visually impaired with the public teletext service 308 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Programming quotas for digital television programme services Quotas for independent programmes 309 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. 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. Regulation of electronic programme guides Code of practice for electronic programme guides 310 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 , 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 without ... 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. 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. 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. Conditions to comply with code under s. 310 311 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. Report on electronic programme guides and public service channels 311A 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. Character and coverage of radio services Character and coverage of sound broadcasting services 312 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; 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. Consultation about change of character of local services 313 After section 106 of the 1990 Act there shall be inserted— Consultation about change of character of local services 106ZA 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 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. Local news and information in local sound broadcasting services 314 1 A local sound broadcasting licence must contain such conditions as OFCOM consider appropriate for— a requiring the licensed local sound broadcasting service to include, and regularly broadcast, programmes that consist of or include local news and information, and b requiring that local news to consist of or include locally-gathered news. 1A But subsection (1) does not apply in the case of a local sound broadcasting service if OFCOM consider it is appropriate for it not to apply in that case. 2 OFCOM must— a draw up guidance as to how they consider the providers of local sound broadcasting services may act consistently with conditions contained in licences in accordance with subsection (1) ; and b have regard to that guidance in carrying out their functions under subsection (1) . 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— ... “local news and information” , in relation to a local sound broadcasting service, means news and information which is of particular interest— to persons living or working within the area or locality for which the service is provided; to persons living or working within a part of that area or locality; or to particular communities living or working within that area or locality or a part of it; “ locally-gathered ”, in relation to news broadcast on a local sound broadcasting service, means— news gathered in the coverage area of a local radio multiplex service that to a significant extent includes the coverage area of the local sound broadcasting service by persons who gather news in the course of an employment or business, or if there is no local radio multiplex service with such a coverage area, news gathered in the area or locality for which the local sound broadcasting service is provided by persons who gather news in the course of an employment or business; and for this purpose the coverage area for a local radio multiplex service or local sound broadcasting service is the area determined by OFCOM to be the area in the United Kingdom within which the service is capable of being received at a level satisfying such technical standards as may have been laid down by them for the purposes of this section; ... 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. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Variations of radio multiplex licences affecting service characteristics 315 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Local news and information in local digital radio services 315A 1 The Secretary of State may, by regulations, make provision for enabling OFCOM to ensure that, for each licensed local radio multiplex service, at least one of the licensed local digital sound programme services broadcast by means of that multiplex service consists of, or includes, local news and information or locally-gathered news and information. 2 The provision that may be made by regulations under this section includes provision about the conditions that OFCOM may, or must, include in a licence that authorises the provision of— a a local digital sound programme service, or b a local radio multiplex service. 3 The Secretary of State must consult OFCOM before making regulations under this section. 4 The power in section 402(3)(c) for regulations under this section to make consequential provision includes power to make provision which amends any enactment. 5 In this section— “ licensed ” local radio multiplex service or local digital sound programme service means such a service which is provided in accordance with a licence issued by OFCOM; “ local news and information ”, in relation to a local radio multiplex service or a local digital sound programme service provided through such a multiplex service, means news and information which is of particular interest— to persons living or working within the area or locality for which the multiplex service is provided; to persons living or working within a part of that area or locality; or to particular communities living or working within that area or locality or a part of it; “ locally-gathered news ”, in relation to a local radio multiplex service or a local digital sound programme service provided through such a multiplex service, means news that has been gathered in the area or locality for which the multiplex service is provided, by persons who gather news in the course of an employment or business. Competition between licensed providers etc. Conditions relating to competition matters 316 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. Exercise of Broadcasting Act powers for a competition purpose 317 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. 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. 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. Review of powers exercised for competition purposes 318 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. Programme and fairness standards for television and radio OFCOM’s standards code 319 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; 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; 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; ha that the requirements of any EU directives, as they had effect immediately before IP completion day, with respect to advertising included in television and radio services are complied with; 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 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. 9 Subject to subsections (10) to (12) , Subsection (2)(fa) applies only in relation to programmes the production of which begins after 19th December 2009. 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. 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. Special impartiality requirements 320 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— 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. Objectives for advertisements, sponsorship and product placement 321 1 Standards set by OFCOM to secure the objectives mentioned in section 319(2)(a) and (fa) to (j)— a must include general provision governing standards and practice in advertising and in the sponsoring of programmes and, in relation to television programme services, general provision governing standards and practice in product placement ; ... b may include provision prohibiting advertisements and forms and methods of advertising or sponsorship (whether generally or in particular circumstances) ; 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; 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. 3A For the purposes of section 319(2)(fa) the product placement requirements are the requirements set out in Schedule 11A. 4 OFCOM— a shall— i in relation to programme services, have a general responsibility with respect to advertisements and methods of advertising and sponsorship; and 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; ... b the forms and methods of advertising and sponsorship that should not be employed in, or in connection with, the provision of such services ; 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— 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 (except in the expression “television programme service”) . Objectives for advertisements: less healthy food and drink 321A 1 OFCOM must set standards by virtue of section 321(1)(b) prohibiting television programme services provided between 5.30 am and 9.00 pm from including advertisements for an identifiable less healthy food or drink product, except as provided for by subsection (3). 2 OFCOM must ensure that the prohibition provided for by the first standards set by virtue of subsection (1) takes effect from the beginning of 5 January 2026 . 3 Standards set by virtue of subsection (1) must exempt from the prohibition imposed by them— a advertisements included in television programme services as a result of arrangements made by or on behalf of a person who is, at the time when the arrangements are made, a food or drink SME; b advertisements prescribed in any regulations made by the Secretary of State under this paragraph. 4 For the purposes of this section— a “ advertisements ” includes advertisements under a sponsorship agreement and anything else which, under a sponsorship agreement, is included in a television programme service, other than in a television programme; b a product is “ identifiable ”, in relation to advertisements, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product; c a food or drink product is “less healthy” if— i it falls within a description specified in regulations made by the Secretary of State, and ii it is “less healthy” in accordance with the relevant guidance; d “the relevant guidance” is the guidance entitled “Nutrient Profiling Technical Guidance” published by the Department of Health on 1 January 2011; e “ food or drink SME ” means a small or medium enterprise, within the meaning given by regulations made by the Secretary of State, of a description specified in the regulations. 5 Regulations under subsection (4)(e) that make provision by reference to the number of members of staff of a person may make provision about who is to count as a member of staff (including members of staff of another person). 6 The Secretary of State may, before the date specified in subsection (2), amend that subsection so as to substitute a later date for the date that is for the time being specified there. 7 The Secretary of State may by regulations amend this section to change the meaning of “the relevant guidance”. 8 Before making regulations under subsection (3)(b) or (7), the Secretary of State must consult such persons as the Secretary of State considers appropriate. 9 A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. Supplementary powers relating to advertising 322 1 The regulatory regime for each of the following— a every television programme service licensed by a Broadcasting Act licence, b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c every ... 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; 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. Modification of matters to be taken into account under s. 319 323 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. Setting and publication of standards 324 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. 3 After publishing the draft code and before setting the standards, OFCOM must also consult— a S4C , 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 or 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 or 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 S4C . 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. 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 ... 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). Observance of standards code 325 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— a with OFCOM’s standards code, so far as it relates to advertising , the sponsorship of programmes and product placement , and b with any such requirements as are mentioned in section 321(4) which relate to advertising , 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); ... c the forms and methods of sponsorship to be excluded from the service (whether generally or in particular circumstances) ; 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. Duty to observe fairness code 326 The regulatory regime for every programme service licensed by a Broadcasting Act licence includes the conditions that OFCOM consider appropriate for securing observance— 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). Standards with respect to fairness 327 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, 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. Duty to publicise OFCOM’s functions in relation to complaints 328 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. Power to proscribe unacceptable foreign television and radio services Proscription orders 329 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 within the jurisdiction of the United Kingdom for the purposes of the European Convention on Transfrontier Television ; 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. Effect of proscription order 330 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. Notification for enforcing proscription 331 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. Penalties for contravention of notification under s. 331 332 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 Party political broadcasts 333 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 Retention and production of recordings 334 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 Conditions securing compliance with international obligations 335 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. 2A The reference in subsection (2) to the international obligations of the United Kingdom includes a reference to Articles 16(1) and (2), 17 and 18 of the Audiovisual Media Services Directive, together with the interpretative provisions in Article 1 of that Directive so far as relevant to those Articles. 2B The provisions of the Audiovisual Media Services Directive mentioned in subsection (2A) are to be read for the purposes of this section as if— b in Articles 16(1) and (2) and 17, references to the Member States were references to the United Kingdom, and b in Article 16(2), the second subparagraph were omitted. 3 This section applies to the following services— a any Channel 3 service; b Channel 4; c Channel 5; d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. Co-operation with other Member States and the European Commission Co-operation with other parties to European Convention on Transfrontier Television 335A OFCOM may do any of the things that paragraph 3 of Article 19 of the European Convention on Transfrontier Television requires to be done by an authority designated under paragraph 2 of that Article. Maintenance of list of providers 335B 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, which are subject to regulation by OFCOM as a result of one of the provisions listed in subsection (1A) . 1A The provisions are— a section 198 (regulation of the BBC by OFCOM); b section 203 (regulation of S4C by OFCOM); c section 211 (regulation of independent television services). 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 OFCOM must publish the up to date list on a publicly accessible part of their website. 4 The regulatory regime for each service mentioned in subsection (1) (other than any service provided by the BBC or S4C) must include the condition that the persons providing the service must notify OFCOM of any changes that may affect whether or not the service falls to be regulated by OFCOM under section 211. Government requirements for licensed services Government requirements for licensed services 336 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— 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. Equal opportunities and training Promotion of equal opportunities and training 337 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 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— by that person, or 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) Equality Act 2010 or, in Northern Ireland, the Race Relations (Northern Ireland) Order 1997 (S.I. 1997/869 (N.I. 6)); “ the threshold number ” means— in relation to individuals, twenty; and 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 S4C Corresponding rules for the BBC and S4C 338 Schedule 12 (which provides for the imposition on the BBC and S4C of obligations corresponding to obligations included in the regulatory regime for licensed providers) shall have effect. Information relating to certain OFCOM functions Power to require information 338A 1 OFCOM may by notice (an “information notice”) require a person within subsection (4) to provide them with any information that they require for the purpose of carrying out their functions under— a sections 198B to 198D, b sections 263 to 294 and Schedule 11, and c paragraphs 5 and 7 to 10 of Schedule 12. 2 The power conferred by subsection (1) includes power to require a person within subsection (4) to obtain or generate information. 3 The power conferred by subsection (1) must be exercised in a way that is proportionate to the use to which the information is to be put by OFCOM. 4 The persons within this subsection are— a a provider of a licensed public service channel; b S4C; c a person with whom a public service broadcaster has made such arrangements as are referred to in section 264 (13) (b) ; d a person who is not within any of paragraphs (a) to (c) but who provides a media service (within the meaning of section 264A); e a person who was within any of paragraphs (a) to (d) at a time to which the required information relates; f a person who is not within any of paragraphs (a) to (e) but who appears to OFCOM to have, or to be able to obtain or generate, information required by them as mentioned in subsection (1) . 5 An information notice must— a specify or describe the information to be provided, b specify why OFCOM require the information, c specify the form and manner in which the information must be provided, and d contain information about the consequences of not complying with the notice. 6 An information notice must specify when the information must be provided which may be— a on or by a specified date, or b within a specified period. 7 The power conferred by subsection (1) to require the provision of information includes power to require the provision of information held outside the United Kingdom. 8 OFCOM may not use the power conferred by subsection (1) to require the BBC to provide, obtain or generate information. 9 The power conferred by subsection (1) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings. 10 A person to whom an information notice is given must provide the information in accordance with any requirements included in the notice (subject to subsection (11) ). 11 The duty under subsection (10) does not require a disclosure of information if that disclosure would contravene the data protection legislation (but, in determining whether a disclosure would do so, that duty is to be taken into account). 12 In this section— “ data protection legislation ” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act); “ public service broadcaster ” has the meaning given by section 264. Penalties for failure to provide information 338B 1 This section applies if— a OFCOM have given an information notice under section 338A to a person within section 338A (4) , and b OFCOM have determined, after giving the person an opportunity to make representations, that there are reasonable grounds for believing that there was, or is, a failure by the person to comply with the information notice. 2 OFCOM may give the person a notice (a “penalty notice”) requiring the person to pay OFCOM a penalty of an amount specified in the notice. 3 The penalty may include an amount for each day on which the person fails to comply with the information notice. 4 The amount of the penalty under subsection (2) is to be such amount, not exceeding £250,000, as OFCOM determine to be— a appropriate; and b proportionate to the failure to comply in respect of which it is imposed. 5 If the penalty notice is given in relation to a continuing failure to comply with the information notice, the penalty notice may also require the person to pay OFCOM a penalty of an amount specified in the penalty notice in respect of each day after the giving of the penalty notice on which the failure continues. 6 The amount of a penalty under subsection (5) is to be such amount, not exceeding £500 per day, as OFCOM determine to be— a appropriate; and b proportionate to the failure to comply in respect of which it is imposed. 7 A penalty notice must— a fix a reasonable period after it is given as the period within which a penalty under subsection (2) is to be paid; b where penalties under subsection (5) are imposed, fix a reasonable period as the period within which such a penalty is to be paid. 8 A financial penalty imposed under this section must be paid to OFCOM within the period fixed by them. Enforcement against S4C Review of fulfilment by S4C of public service remits 339 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 S4C 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, S4C 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. Directions to S4C to take remedial action 340 1 This section applies if the Secretary of State’s conclusions on a review under section 339 include a finding— a that S4C 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 S4C general or specific directions requiring them to take the steps that he considers will ensure that S4C 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 S4C . 5 It shall be the duty of S4C to comply with every direction under this section. Imposition of penalties on S4C 341 1 This section applies to the following requirements so far as they are imposed on S4C 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; ja . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . jb . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 S4C a notice requiring S4C , 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 S4C 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. Contraventions recorded in Welsh Authority’s annual report 342 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. Provision of information by S4C 343 1 It shall be the duty of S4C to comply with every direction given to them by OFCOM to provide OFCOM with information falling within subsection (2). 2 The information that S4C may be directed to provide is any information which OFCOM may reasonably require for the purposes of carrying out their functions in relation to S4C 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 Transmission of statement of findings 344 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. Financial penalties imposable on licence holders 345 Schedule 13 (which modifies the maximum penalties that may be imposed on the holders of Broadcasting Act licences) shall have effect. Recovery of fees and penalties 346 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. Broadcasting Act licence fees Statement of charging principles 347 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 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 S4C . 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— section 4(1)(b) or 87(1)(c) of the 1990 Act; or section 4(1)(b) or 43(1)(c) of the 1996 Act; “ financial year ” means a period of twelve months ending with 31st March. Chapter 5 Media ownership and control Restrictions on licence holders Modification of disqualification provisions 348 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; 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. Licence holding by local authorities 349 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, ” . Relaxation of licence-holding restrictions 350 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. Changes of control Changes of control of Channel 3 services 351 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 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; 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 ”— 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 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— to persons living within the area for which the service is provided; to persons living within a part of that area; or to particular communities living within that area; “ relevant change of control ” means a change in the persons having control over— a body holding the licence to provide a Channel 3 service; or any body which— is connected with a body holding such a licence; and 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. Action following review under s. 351 352 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. 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. Changes of control of Channel 5 353 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; 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— expenditure which constitutes an investment in or is otherwise attributable to the making of the programme; or 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 ”— 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 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 body holding a licence to provide Channel 5; or any body which— is connected with a body holding such a licence; and 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. Action following review under s. 353 354 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 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. Variation of local licence following change of control 355 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Action following review under s. 355 356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meaning of control Meaning of “ control ” 357 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 Annual factual and statistical report 358 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; 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 Grants to providers 359 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. Financial assistance for radio Power of the Secretary of State to give financial assistance for radio 359A 1 The Secretary of State may give financial assistance for or in connection with— a the provision of eligible services; b the production of sound programmes (whether intended for broadcast or distribution by any other means). 2 The financial assistance may be given— a by way of grant, loan or guarantee or in any other form, and b subject to such conditions as the Secretary of State considers appropriate. 3 The conditions may (among other things) include provision under which the financial assistance is to be repaid or otherwise made good (with or without interest). 4 The eligible services for the purposes of subsection (1) (a) are— a services of a description in relation to which provision is for the time being in force under section 262 (community radio); b local sound broadcasting services; c local digital sound programme services. Supplemental provisions of Part 3 Amendments of the 1990 and 1996 Acts 360 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. Meaning of “ available for reception by members of the public ” 361 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 it is an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service (see section 368HA ) . 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. 9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interpretation of Part 3 362 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; ... “ 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 ” includes, in particular, any of the following— subtitling; audio-description for the blind and partially sighted; and 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 Royal Charter for the continuance of the BBC; supplemental Charters obtained by the BBC under such a Royal Charter; 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 body corporate which is controlled by the BBC; or 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 body corporate which is controlled by C4C; or 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; ... “ 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” has the meaning given by Schedule 1 to the Interpretation Act 1978, ... ; “ the European Convention on Transfrontier Television ” means the Council of Europe Convention on Transfrontier Television which was opened for signature at Strasbourg on 5th May 1989, as amended by the Protocol which was opened for signature at Strasbourg on 1st October 1998; “ 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)— any Channel 3 service; Channel 4; 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); “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; ... ... “ 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 service the provision of which is licensed under Part 3 of the 1990 Act; a digital sound programme service the provision of which is licensed under Part 2 of the 1996 Act; 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 company ” means— a body corporate which is controlled by S4C ; or a body corporate in which S4C or a body corporate controlled by S4C is (to any extent) a participant; “ S4C Digital ” means the television programme service provided by S4C in digital form and originally known as S4C Digital but increasingly since April 2010 (date of digital switch-over in Wales) simply called S4C; “ 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 (or a dissociable section of a service) which— consists in a service of television programmes provided with a view to its being broadcast (whether in digital or in analogue form); is provided so as to be available for reception by members of the public; and is not— a restricted television service; a television multiplex service; a service provided under the authority of a licence under Part 1 of the 1990 Act to provide a television licensable content service; or 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 television broadcasting service; a television licensable content service; a digital television programme service; a restricted television service; ... “ 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 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 S4C 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 S4C 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; 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. Part 3A Prominence on television selection services Designated internet programme services Designation of internet programme services 362AA 1 In this Part, “ designated internet programme service ” means— a an internet programme service provided by the BBC, b an internet programme service provided by a public service broadcaster other than the BBC and designated by OFCOM under subsection (2) for the purposes of this Part, or c an internet programme service provided by a person associated with a public service broadcaster and designated by OFCOM as described in paragraph (b) . 2 OFCOM may designate an internet programme service provided by a public service broadcaster other than the BBC or a person associated with a public service broadcaster if— a the service satisfies the conditions in subsection (3) , (4) or (5) that apply to it; and b OFCOM consider that it is appropriate to designate the service. 3 The conditions in the case of an internet programme service provided by the provider of a licensed public service channel or a person associated with the provider of that licensed public service channel are— a that the service makes or would, if designated, be capable of making— i a significant contribution to the fulfilment of the public service remit for that licensed public service channel, or ii in a case where the provider of the service is, in relation to two or more licensed public service channels, either the provider of, or a person associated with the provider of, the channels, a significant contribution to the fulfilment of the public service remit for at least one of those licensed public service channels; and b that the public service remit content included in the service is readily discoverable and is promoted by the service. 4 The conditions in the case of an internet programme service provided by S4C or a person associated with S4C are— a that the service makes or would, if designated, be capable of making a significant contribution to the fulfilment of S4C’s public service remit; and b that the public service remit content included in the service is readily discoverable and is promoted by the service. 5 The conditions in the case of an internet programme service provided by a person associated with the BBC are— a that the service makes or would, if designated, be capable of making a significant contribution to the promotion of one or more of the BBC’s public purposes; and b that the material contributing to the promotion of one or more of those purposes which is included in the service is readily discoverable and is promoted by the service. 6 In considering whether an internet programme service provided by a person other than the BBC satisfies the conditions in subsection (3) , (4) or (5) that apply to it, OFCOM must have regard to any statement for the time being published by OFCOM under section 362AC . 7 In considering whether it is appropriate to designate an internet programme service provided by a public service broadcaster other than the BBC or a person associated with such a broadcaster, OFCOM must have regard, in particular, to the following matters— a any proposals included in any such public service broadcaster’s latest statement of programme policy published under section 266 or 267 or paragraph 4 of Schedule 12 as to the contribution that the internet programme service will make towards fulfilling the public service remit for its licensed public service channel or (as the case may be) S4C’s public service remit; b whether that proposed contribution is capable of satisfying the needs and interests of— i a specific audience, in a case where the service would, if designated, be the second or further designated internet programme service provided by a public service broadcaster or a person associated with that broadcaster, or ii a wide range of audiences, in any other case; c in relation to any such public service broadcaster whose public service remit content is included in the internet programme service, how effective and efficient is the broadcaster’s monitoring of its performance so far as relating to the fulfilment of the public service remit for its licensed public service channel or (as the case may be) S4C’s public service remit. 8 In considering whether it is appropriate to designate an internet programme service provided by a person associated with the BBC, OFCOM must have regard, in particular, to the following matters— a any proposals included in a statement of policy made by the BBC in pursuance of the BBC Charter and Agreement as to the contribution that the service will make towards the promotion of one or more of the BBC’s public purposes; b whether that proposed contribution is capable of satisfying the needs and interests of— i a specific audience, in a case where the service would, if designated, be the second or further designated internet programme service provided by the BBC or a person associated with the BBC, or ii a wide range of audiences, in any other case; c how effective and efficient is the BBC’s monitoring of the contribution of persons associated with the BBC to the promotion of one or more of the BBC’s public purposes. 9 Before designating an internet programme service, OFCOM must consult— a the provider of the service; b such other persons as OFCOM consider appropriate. 10 In this Part, a reference to an internet programme service is a reference to— a an on-demand programme service where the programmes viewed by a user of the service are accessed by the user by means of the internet, b a non-UK on-demand programme service where the programmes viewed by a user of the service are accessed by the user by means of the internet, or c a service which satisfies the requirements in subsection (11) . 11 The requirements are— a that the principal purpose of the service is the provision of programmes, b that the programmes viewed by a user of the service are accessed by the user by means of the internet, and c that the programmes it provides to a user of the service are contained in— i such on-demand programme service as is described in subsection (10) (a) or such non-UK on-demand programme service as is described in subsection (10) (b) , and ii another service which is, or two or more other services each of which is, such an on-demand programme service, such a non-UK on-demand programme service, or a service (other than those kinds of service) that consists of, or has as its principal purpose the provision of, programmes. 12 In this section— “ public service remit ”— in relation to a Channel 3 service or Channel 5, has the meaning given by section 265(2); in relation to Channel 4, has the meaning given by section 265(3); in relation to S4C, has the meaning given by section 204A ; “ public service remit content ”, in relation to an internet programme service provided by a public service broadcaster other than the BBC or a person associated with such a broadcaster, means material included in the internet programme service that contributes to the fulfilment of— the public service remit for the licensed public service channel in question, or S4C’s public service remit (as the case may be). Revocation of designation 362AB 1 If an internet programme service provided by a person other than a public service broadcaster is designated under section 362AA (2) , the designation is revoked on the person ceasing to be associated with— a if the person is associated with only one public service broadcaster, that public service broadcaster, or b if the person is associated with more than one public service broadcaster, all of those public service broadcasters. 2 OFCOM may give notice under subsection (3) to a person other than the BBC who provides a designated internet programme service if OFCOM consider that there are reasonable grounds for believing that— a a designated internet programme service provided by that person is not making such contribution as is described in subsection (3) (a) , subsection (4) (a) or (as the case may be) subsection (5) (a) of section 362AA , b the content included in the service which is of the description referred to in subsection (3) (b) , subsection (4) (b) or (as the case may be) subsection (5) (b) of section 362AA is not readily discoverable or is not promoted by the service, or c the service is not a service that it would be appropriate for OFCOM to designate under section 362AA (2) . 3 A notice under this subsection must— a state that OFCOM consider that there are reasonable grounds for believing the matter in paragraph (a) , (b) or (c) of subsection (2) ; b give OFCOM’s reasons for that opinion; c give OFCOM’s reasons for proposing to revoke the designation of the internet programme service; d state that the person may make representations to OFCOM about the matters contained in the notice; e specify the period within which such representations may be made. 4 Where the period allowed for representations has expired, OFCOM must, after considering any representations that have been made— a decide whether or not to revoke the designation, and b give notice to the person of their decision. 5 Where OFCOM decide to revoke a designation, a notice under subsection (4) (b) must— a state that OFCOM are satisfied as to the matter in paragraph (a) , (b) or (c) of subsection (2) ; b give OFCOM’s reasons for being so satisfied. 6 In considering whether there are reasonable grounds for believing the matter in paragraph (a) , (b) or (c) of subsection (2) or whether they are satisfied as to that matter, OFCOM must have regard to any statement for the time being published by OFCOM under section 362AC . 7 OFCOM must revoke a designation of an internet programme service under section 362AA (2) if the person providing the service requests them to do so. Statement relating to designation functions 362AC 1 OFCOM must prepare and publish a statement providing— a information about the methods applied in determining the matters in sections 362AA (3) , (4) and (5) and 362AB (2) , and b such other information relating to the determination of those matters as OFCOM consider appropriate. 2 OFCOM may revise or replace a statement published under this section and, where they do so, must publish the revised or replacement statement. Notifications in relation to designated internet programme services 362AD 1 Where an internet programme service provided by a person associated with a public service broadcaster has been designated under section 362AA (2) , the person must give notice to OFCOM if the person ceases to be a person associated with that public service broadcaster. 2 A notice given to OFCOM under this section must— a be sent in such manner as OFCOM may require; b contain such information as OFCOM may require. Regulated television selection services Meaning of “television selection service” 362AE 1 In this Part, “ television selection service ” means a service or a dissociable section of a service, provided by means of the internet and in connection with internet television equipment, which consists of— a the presentation of the internet programme services included in the service or the dissociable section of the service, and b a facility that enables the user— i to make a selection between those services or between programmes provided by those services or both, and ii to access the service selected or the programme selected or both. 2 In subsection (1) , “ internet television equipment ” means any apparatus or combination of apparatus specified in regulations made by the Secretary of State setting out the descriptions of apparatus or combinations of apparatus that are internet television equipment for the purposes of this Part. 3 Regulations made by virtue of subsection (2) may— a provide for references to internet television equipment to include references to software used in association with apparatus, and b describe apparatus or a combination of apparatus by reference to software used in association with the apparatus or any of it. 4 Exceptions in regulations made by virtue of subsection (2) may include exceptions relating to the purpose or purposes for which a description of apparatus may be used in addition to the purpose of viewing internet programme services. 5 The person, and the only person, who is to be treated for the purposes of this Part as providing a television selection service is the person who has general control over the manner in which the service presents to its users the internet programme services that are included in the service. 6 The fact that a television selection service relies to any extent on algorithms to determine the prominence given to— a an internet programme service included in the service, or b any programme provided by an internet programme service included in the service, does not prevent a person from having general control as described in subsection (5) . 7 The Secretary of State may by regulations— a amend this section so as to alter the definition of “television selection service” or “internet television equipment”, and b make such amendments or repeals of any provision of this Act or any other Act as appear to the Secretary of State to be expedient in consequence of the amendments made by virtue of paragraph (a) . 8 A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. Meaning of “regulated television selection service” 362AF 1 In this Part, “ regulated television selection service ” means a television selection service which— a is for the time being designated by regulations made by the Secretary of State, or b is of a description specified in regulations made by the Secretary of State. 2 The Secretary of State may not exercise the power under subsection (1) (a) so as to cause a television selection service to become a regulated television selection service unless the Secretary of State considers that the service is used by a significant number of members of the public in the United Kingdom. 3 Regulations under subsection (1) (b) may, in particular, frame a description of television selection services by reference to— a a television selection service being used, or being used in a manner specified in the regulations, by no fewer than such number of members of the public in the United Kingdom as may be specified in the regulations; b the date on which a television selection service is first made available to members of the public in the United Kingdom; c the functions that a television selection service is capable of carrying out or may be made capable of carrying out. 4 Before making regulations under subsection (1) (a) or (b) , the Secretary of State must have received a report under section 362AG relating to the television selection service or description of television selection services in question. Advice from OFCOM 362AG 1 OFCOM may prepare reports making recommendations about the exercise of the power under section 362AF (1) (a) or (b) . 2 Where— a the Secretary of State proposes to make regulations under section 362AF (1) (a) or (b) , and b the Secretary of State has not received a report under subsection (1) relating to the television selection service or description of television selection services that would be affected by the proposed regulations, the Secretary of State must request OFCOM to prepare a report making recommendations about the exercise of the power under section 362AF (1) (a) or (b) in relation to that service or services of that description. 3 Where the Secretary of State makes a request under subsection (2) , OFCOM must prepare such a report as soon as practicable. 4 A report under subsection (1) or (3) relating to the exercise of the power under section 362AF (1) (a) must include OFCOM’s assessment of— a the number of members of the public in the United Kingdom using that service and whether that number is significant; b the manner in which that service is used by such persons; c whether that service is capable of functioning as a regulated television selection service and the modifications, if any, that are needed to make it so capable; d such matters as OFCOM consider likely to affect the matters referred to in paragraphs (a) to (c) . 5 A report under subsection (1) or (3) relating to the exercise of the power under section 362AF (1) (b) must include OFCOM’s assessment of— a which television selection services are likely to fall within the description of television selection services in question; b such matters as OFCOM consider relevant to the assessment described in paragraph (a) . 6 OFCOM must give the Secretary of State a report prepared under subsection (1) or (3) . 7 If the Secretary of State exercises the power under section 362AF (1) (a) or (b) in a manner which differs materially from recommendations made in a report under this section, the Secretary of State must publish, no later than the time at which the regulations are made, a statement giving the Secretary of State’s reasons for doing so. 8 OFCOM must publish reports given to the Secretary of State under this section. 9 OFCOM must prepare and publish a statement about the principles and methods applied by OFCOM in preparing a report under subsection (1) or (3) . 10 OFCOM may revise or replace a statement published under this section and, where they do so, must publish the revised or replacement statement. Notification by providers of television selection services Notification by providers of television selection services 362AH 1 A provider of a television selection service must give notice to OFCOM if the service is or becomes a television selection service of a description specified in regulations made by virtue of section 362AF (1) (b) . 2 A provider of a television selection service must give notice to OFCOM if, having been a service of a description specified in regulations made by virtue of section 362AF (1) (b) , the service ceases to be a service of such a description. 3 A provider of a regulated television selection service must give notice to OFCOM if the provider ceases to provide that service. 4 A notice given to OFCOM under this section must— a be sent in such manner as OFCOM may require; b contain such information as OFCOM may require. Lists of services Lists of services 362AI 1 OFCOM must establish and maintain up to date lists of— a designated internet programme services; and b regulated television selection services and their providers. 2 OFCOM must publish the up to date lists on a publicly accessible part of their website. Must-offer and must-carry obligations Must-offer obligations in the case of designated internet programme services 362AJ 1 The provider of a designated internet programme service must at all times offer the service as available (subject to the need to agree terms) to be, in relation to every regulated television selection service, included in the regulated television selection service. 2 The provider of a designated internet programme service must do its best to secure that, in relation to every regulated television selection service, arrangements are entered into, and kept in force, that ensure that the service is included in the regulated television selection service. 3 The provider of a designated internet programme service must act consistently with the agreement objectives when entering into such arrangements and while they are in force. 4 Subsections (1) to (3) do not apply where the provider of a designated internet programme service is the BBC. Must-carry obligations 362AK 1 The provider of a regulated television selection service must— a in respect of each designated internet programme service, enter into arrangements with the provider of the designated internet programme service for the regulated television selection service to include that designated internet programme service, and b keep them in force. 2 The provider of a regulated television selection service must act consistently with the agreement objectives when entering into arrangements in pursuance of subsection (1) and while they are in force. 3 For provision applying where there is a dispute about the arrangements that should be made or their operation, see sections 362AT to 362AY . Guidance as regards agreement objectives 362AL 1 OFCOM must prepare and publish guidance about how providers of designated internet programme services and providers of regulated television selection services may act consistently with the agreement objectives. 2 The reference in subsection (1) to acting consistently with the agreement objectives is to be treated, in relation to the BBC, as a reference to carrying out any duty of the BBC under the BBC Charter and Agreement that is comparable to the duty of providers of designated internet programme services other than the BBC under section 362AJ (3) . 3 OFCOM may revise and replace any guidance published under this section and, where they do, must publish the revised or replacement guidance. 4 Before preparing guidance under this section (or revising or replacing it), OFCOM must consult— a the Secretary of State, and b such other persons as they consider appropriate. 5 In exercising or deciding whether to exercise any of their powers under sections 362AU to 362AX , OFCOM must have regard to any guidance for the time being published under this section. Meaning of “the agreement objectives” 362AM 1 In sections 362AJ to 362AL “the agreement objectives” are— a that a designated internet programme service is given an appropriate degree of prominence within a regulated television selection service; b that, in a case where a designated internet programme service contributes to— i the fulfilment of the public service remit for a licensed public service channel, ii the fulfilment of S4C’s public service remit, or iii the promotion of one or more of the BBC’s public purposes, the arrangements made between the provider of that designated internet programme service and the provider of a regulated television selection service do not adversely affect the ability of the provider of that channel to fulfil the public service remit for that channel, the ability of S4C to fulfil S4C’s public service remit or (as the case may be) the ability of the BBC to promote its public purposes; c that arrangements so made do not disproportionately restrict how the provider of a regulated television selection service may make innovations in the ways that users may select and access internet programme services or programmes included in such services. 2 The reference in subsection (1) (a) to a designated internet programme service being given an appropriate degree of prominence within a regulated television selection service includes a reference to an appropriate degree of prominence being given to public service remit content and any listed channel included in that designated internet programme service, so far as the prominence of that content or channel is capable of being affected by the operation of the regulated television selection service. 3 The following are listed channels for the purposes of this section— a any service of television programmes provided by the BBC so as to be available for use by members of the public; b any Channel 3 service; c Channel 4; d Channel 5; e S4C Digital. Duties relating to a designated internet programme service Duties relating to a designated internet programme service 362AN 1 The provider of a designated internet programme service must ensure that— a the service makes such contribution as is described in subsection (3) (a) , subsection (4) (a) or (as the case may be) subsection (5) (a) of section 362AA , and b such material included in the service as is described in subsection (3) (b) , subsection (4) (b) or (as the case may be) subsection (5) (b) of section 362AA is readily discoverable and is promoted by the service. 2 Subsection (1) does not apply where the provider of a designated internet programme service is the BBC. Duties relating to a regulated television selection service Duties relating to a regulated television selection service 362AO 1 A provider of a regulated television selection service must secure that the manner in which its service presents internet programme services to its users in the United Kingdom gives an appropriate degree of prominence to each of the designated internet programme services included in its service. 2 Subsection (1) does not require that a designated internet programme service be given prominence, or the same degree of prominence, in relation to every area of the United Kingdom. 3 The reference in subsection (1) to giving an appropriate degree of prominence to a designated internet programme service included in a regulated television selection service includes a reference to giving an appropriate degree of prominence to— a material that is public service remit content or contributes to the promotion of one or more of the BBC’s public purposes included in that designated internet programme service, and b any listed channel included in that designated internet programme service, so far as the prominence of that material or channel is affected by the operation of the regulated television selection service. 4 A provider of a regulated television selection service must incorporate features in the service that secure that persons with disabilities, in particular those affecting their sight or hearing or both— a are able, so far as practicable, to make use of the service for all the same purposes as persons without disabilities; and b are informed about, and are able to make use of, whatever assistance for disabled people is provided in relation to the internet programme services included in the service. 5 In this section “ assistance for disabled people ” has the same meaning as in Part 3 (see section 362(1)). Code of practice 362AP 1 OFCOM must issue a code of practice describing actions that OFCOM recommend for the purpose of securing that the manner in which a regulated television selection service presents internet programme services to its users complies with the duties in section 362AO . 2 OFCOM may— a revise a code of practice issued under this section and issue the code as revised; b withdraw a code of practice issued under this section and issue a new code of practice. 3 OFCOM must— a publish a code of practice issued under this section in such manner as they consider appropriate; b keep a code of practice issued under this section under review. 4 If requested by the Secretary of State to review all or part of a code of practice issued under this section, OFCOM must review the code or that part of it. 5 OFCOM must secure that the actions recommended in a code of practice issued under this section are consistent with the agreement objectives. 6 The actions recommended in a code of practice issued under this section may include— a actions relating to particular descriptions of regulated television selection services; b actions relating to particular descriptions of internet programme services. Effects of the code of practice 362AQ 1 The provider of a regulated television selection service is to be treated as complying with the duty in section 362AO (1) or (4) if the provider takes the actions described in the code of practice which are recommended for the purpose of complying with the duty. 2 A failure by the provider of a regulated television selection service to act in accordance with a provision of the code of practice does not of itself make the provider liable to legal proceedings before a court or tribunal. 3 In any legal proceedings before a court or tribunal, the court or tribunal must take into account a provision of the code of practice in determining any question arising in the proceedings if— a the question relates to a time when the provision was in force, and b the provision appears to the court or tribunal to be relevant to the question. 4 OFCOM must take into account a provision of the code of practice in determining any question arising in connection with the carrying out by them of a relevant function if— a the question relates to a time when the provision was in force, and b the provision appears to OFCOM to be relevant to the question. 5 In this section, “ relevant function ” means a function conferred on OFCOM by any of the following provisions— a sections 362AT to 362AY (references of disputes to OFCOM), and b sections 362AZ to 362AZ5 (enforcement). Issuing a code of practice 362AR 1 Before issuing a code of practice under section 362AP , OFCOM— a must publish a draft of the code or (as the case may be) a draft of the revisions of the existing code; b must consult the following about the draft— i the Secretary of State; ii public service broadcasters; iii such persons who appear to OFCOM to represent providers of regulated television selection services; iv such other persons as OFCOM consider appropriate; c may make such alterations to the draft as OFCOM consider appropriate following the consultation. 2 Subsection (1) does not apply in relation to revisions of the code of practice if— a OFCOM give the Secretary of State a draft of the revisions of the existing code, and b the Secretary of State agrees that it is not necessary for subsection (1) to apply in relation to the revisions. Power to require information Power to require information 362AS 1 OFCOM may by notice (an “information notice”) require a person within subsection (4) to provide them with any information that they require for the purpose of carrying out their functions under this Part. 2 The power conferred by subsection (1) includes power to require a person within subsection (4) to obtain or generate information. 3 The power conferred by subsection (1) must be exercised in a way that is proportionate to the use to which the information is to be put by OFCOM. 4 The persons within this subsection are— a a public service broadcaster; b a provider of an internet programme service; c a provider of a television selection service; d a person who provides an ancillary service in relation to an internet programme service or a television selection service; e a manufacturer of apparatus that is, or in combination with other apparatus is, internet television equipment; f a person who creates or provides software used in association with such apparatus; g a person who was within any of paragraphs (a) to (f) at a time to which the required information relates; h a person who is not within any of paragraphs (a) to (g) but who appears to OFCOM to have, or to be able to obtain or generate, information required by them as mentioned in subsection (1) . 5 The information that OFCOM may require under subsection (1) includes, in particular, information that they require for any one or more of the following purposes— a the purpose of deciding whether to designate an internet programme service for the purposes of this Part or to revoke such a designation; b the purpose of assessing compliance with section 362AD (1) (duty to notify OFCOM where cease to be associated with a public service broadcaster); c the purpose of preparing a report under section 362AG (advice from OFCOM about the designation of television selection services etc); d the purpose of assessing compliance with section 362AH (duty of providers of television selection services to notify OFCOM); e the purpose of assessing compliance with any duty of a provider of a designated internet programme service under section 362AJ or 362AN (must-offer and content of designated internet programme services obligations); f the purpose of assessing compliance with any duty of the BBC under the BBC Charter and Agreement that is comparable to any duty of a provider of a designated internet programme service under section 362AJ or 362AN ; g the purpose of assessing compliance with any duty of a provider of a regulated television selection service under section 362AK or 362AO (must-carry and prominence obligations); h the purpose of preparing or reviewing a code of practice under section 362AP (code of practice relating to duties under section 362AO ); i the purpose of OFCOM’s functions under sections 362AT to 362AY (dispute resolution); j the purpose of assessing compliance with any requirements imposed by a confirmation decision under section 362AZ1 ; k the purpose of determining the appropriate fee that a provider is required to pay under section 362AZ6 ; l the purpose of OFCOM’s monitoring role under section 362AZ9 ; m the purpose of ascertaining the amount of a person’s or a group of entities’ qualifying worldwide revenue for the purposes of paragraph 3 or 4 of Schedule 16A . 6 An information notice must— a specify or describe the information to be provided, b specify why OFCOM require the information, c specify the form and manner in which the information must be provided, and d contain information about the consequences of not complying with the notice. 7 An information notice must specify when the information must be provided which may be— a on or by a specified date, or b within a specified period. 8 The power conferred by subsection (1) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings. 9 A person to whom an information notice is given must provide the information in accordance with any requirements included in the notice (subject to subsection (10) ). 10 The duty under subsection (9) does not require a disclosure of information if that disclosure would contravene the data protection legislation (but, in determining whether a disclosure would do so, that duty is to be taken into account). 11 For the purposes of subsection (4) (d) , a service is an “ ancillary service ” in relation to an internet programme service or a television selection service if it facilitates the provision of that service (or part of it), whether directly or indirectly. 12 In this section, a reference to the functions of OFCOM under this Part includes a reference to their functions under Schedules 16A and 16B , so far as relating to this Part. 13 In this section, “ data protection legislation ” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act). References of disputes to OFCOM References of disputes to OFCOM 362AT 1 This section applies in the case of a dispute between the provider of a designated internet programme service and the provider of a regulated television selection service about— a the arrangements that should be made between them in order to give effect to the prominence duties that relate to them, or b the operation of arrangements made between them in order to give effect to those duties. 2 For the purposes of subsection (1) — a the prominence duties relating to the provider of a designated internet programme service are— i in the case of a provider other than the BBC, the duties under section 362AJ ; ii in the case of the BBC, any duties of the BBC under the BBC Charter and Agreement that are comparable to the duties of other providers under section 362AJ ; b the prominence duties relating to the provider of a regulated television selection service are the duties under sections 362AK and 362AO (1) . 3 Any one or more of the parties to the dispute may refer it to OFCOM but only if (and when) there is no realistic prospect of resolving the dispute without referring it. 4 OFCOM may invite any one or more of the parties to the dispute to make a reference under subsection (3) . 5 OFCOM— a may impose requirements about the manner in which a reference must be made by publishing a notice setting out those requirements, b may withdraw or modify any requirements that have been imposed by publishing a further notice, and c in exercising their powers under paragraph (a) or (b) , may make different provision for different cases. 6 OFCOM may publish a notice under subsection (5) in such ways as they consider appropriate for bringing the notice to the attention of those who, in their opinion, are likely to be affected by it. Action by OFCOM on reference of dispute 362AU 1 This section applies where— a a dispute is referred to OFCOM under section 362AT (3) , and b any requirements imposed by OFCOM under section 362AT (5) are met in relation to the reference. 2 OFCOM must decide whether or not it is appropriate for them to handle the dispute. 3 Subsection (4) applies where— a the dispute is of the kind described in section 362AT (1) (a) (disputes between the provider of a designated internet programme service and the provider of a regulated television selection service about the arrangements that should be made between them for the purposes of their prominence duties), and b unless the dispute is resolved, it is highly likely that the designated internet programme service will— i not be included in the regulated television selection service, or ii not be given the appropriate degree of prominence within it. 4 OFCOM must decide that it is appropriate for them to handle the dispute unless they consider— a that there are alternative means available for resolving the dispute, b that a resolution by those means is likely to result in an outcome that is consistent with the agreement objectives, and c that a prompt and satisfactory resolution of the dispute is likely if those alternative means are used. 5 As soon as reasonably practicable after OFCOM have decided whether or not it is appropriate for them to handle the dispute, they must inform each of the parties to the dispute of— a their decision and the date on which it was made, and b their reasons for it. 6 Where OFCOM decide that it is not appropriate for them to handle the dispute, the dispute may subsequently be referred back to OFCOM by one or more of the parties if— a the parties have used alternative means for resolving the dispute but it has not been resolved within a reasonable period of time, or b the parties have not used alternative means for resolving the dispute but OFCOM consider that there is a satisfactory explanation for that. Interim measures 362AV 1 This section applies where— a OFCOM decide under section 362AU (2) whether or not it is appropriate for them to handle a dispute, or b a dispute is referred back to OFCOM under section 362AU (6) . 2 OFCOM may do one or more of the following— a make an interim declaration setting out the rights and obligations of the parties to the dispute; b give an interim direction fixing the terms or conditions of transactions between the parties to the dispute; c give an interim direction imposing an obligation on the parties to the dispute, and enforceable by them, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM. 3 OFCOM must exercise their powers under subsection (2) in the way that seems to them to be most appropriate in the light of the agreement objectives. 4 Before exercising their powers under subsection (2) , OFCOM must— a give the parties to the dispute an opportunity to make representations about the exercise of those powers, and b consider those representations. 5 In other respects, the procedure to be followed by OFCOM in connection with the exercise of their powers under subsection (2) is to be the procedure that OFCOM consider appropriate. 6 In the case of a dispute referred back to OFCOM under section 362AU (6) , OFCOM may, in exercising their powers under subsection (2) , take account of decisions already made by others in the course of an attempt to resolve that dispute by alternative means. 7 OFCOM must withdraw an interim declaration or an interim direction if requested to do so by the parties to the dispute. 8 OFCOM may withdraw an interim declaration or an interim direction otherwise than at the request of the parties to the dispute if they consider that it is appropriate to do so in the light of the agreement objectives. 9 An interim declaration or an interim direction binds the parties to the dispute (unless withdrawn by OFCOM or ceasing to have effect under section 362AY (4) ). 10 In this section— a “ an interim declaration ” means a declaration that has effect until the resolution of the dispute by OFCOM or by any alternative means (unless withdrawn by OFCOM or ceasing to have effect under section 362AY (4) ); b “ an interim direction ” means a direction that has effect until the resolution of the dispute by OFCOM or by any alternative means (unless withdrawn by OFCOM or ceasing to have effect under section 362AY (4) ). Procedure for resolving disputes 362AW 1 This section applies where— a OFCOM decide under section 362AU (2) that it is appropriate for them to handle a dispute, or b a dispute is referred back to OFCOM under section 362AU (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 362AU (6) , that procedure may involve allowing the continuation of a procedure that has already begun for resolving the dispute by alternative means. 5 Unless there are exceptional circumstances, OFCOM must make their determination before the end of the period of four months beginning with— a where OFCOM decide under section 362AU (2) that it is appropriate for them to handle the dispute, the day on which they make that decision; b where the dispute is referred back to OFCOM under section 362AU (6) , the day on which it is referred back. 6 Where it is practicable for OFCOM to make their determination before the end of the period of four months referred to in subsection (5) , they must make it as soon in that period as is practicable. 7 The requirements of subsections (5) and (6) are subject to section 362AY (4) . 8 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. 9 OFCOM may fulfil their duty under subsection (8) (b) in such ways as they consider appropriate for bringing the material that they consider it appropriate to publish to the attention of members of the public. Resolution of referred disputes 362AX 1 This section applies where OFCOM make a determination for resolving a dispute under section 362AW (2) . 2 OFCOM may do one or more of the following— a make a declaration setting out the rights and obligations of the parties to the dispute; b give a direction fixing the terms or conditions of transactions between the parties to the dispute; c give a direction imposing an obligation on the parties to the dispute, and enforceable by them, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM; 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 to 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. 3 OFCOM must exercise their powers under subsection (2) in the way that they consider to be the most appropriate for meeting the agreement objectives. 4 In the case of a dispute referred back to OFCOM under section 362AU (6) — a OFCOM may, in making their determination, take account of decisions already made by others in the course of an attempt to resolve that dispute by alternative means, and b the determination made by OFCOM may include provision ratifying such decisions. 5 Where OFCOM make a determination for resolving a dispute, they may require a party to the dispute— 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; b to make payments to OFCOM in respect of costs and expenses incurred by them in dealing with the dispute. 6 OFCOM may determine— a the amount of any costs or expenses required to be paid under subsection (5) (a) or (b) , and b when those costs or expenses are to be paid. 7 OFCOM may not require a party to the dispute to make payments to another party or to OFCOM under subsection (5) unless they have considered— a the conduct of the party before and after the reference to OFCOM (including, in particular, whether any attempts have been made to resolve the dispute), and b whether OFCOM have made a decision in the party’s favour in respect of the whole or a part of the dispute. 8 A determination made by OFCOM for resolving a dispute referred to them under section 362AT (3) , or referred back to them under section 362AU (6) , binds the parties to the dispute. Effect of referrals on legal proceedings 362AY 1 This section applies where— a a dispute is referred to OFCOM under section 362AT (3) , or b a dispute is referred back to OFCOM under section 362AU (6) . 2 The reference, or reference back, does not prevent the person making it, the other party to the dispute, OFCOM or any other person from bringing, or continuing, any legal proceedings with respect to any of the matters under dispute. 3 The reference, or reference back, also does not prevent OFCOM from— a giving a notification in respect of something that they have reasonable grounds for believing to be a contravention of an obligation imposed by or under an enactment; b exercising any of their powers under any enactment in relation to a contravention of an obligation imposed by or under an enactment; c taking any other step in preparation for, or with a view to, doing anything mentioned in the preceding paragraphs. 4 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, 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 a determination, and c any interim declaration or interim direction made or given by OFCOM under section 362AV (2) ceases to have effect. 5 In this section, “ legal proceedings ” means civil or criminal proceedings in or before a court. 6 Subsection (2) is subject to— a section 362AX (8) , and b any agreement to the contrary binding the parties in dispute. Enforcement Provisional notices of contravention 362AZ 1 OFCOM may give a notice under this section (a “provisional notice of contravention”) to a person if they consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with— a any duty under section 362AD , 362AJ or 362AN (duties of providers of designated internet programme services under this Part), or b any duty under section 362AH , 362AK or 362AO (duties of providers of regulated television selection services under this Part). 2 OFCOM may also give a provisional notice of contravention to a person to whom an information notice has been given if they consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with the duty under section 362AS (9) . 3 A provisional notice of contravention must— a specify the duty as regards which (in OFCOM’s opinion) there are reasonable grounds for believing the person has failed, or is failing, to comply, and b give OFCOM’s reasons for that opinion. 4 A provisional notice of contravention may also specify steps that OFCOM consider the person needs to take in order to— a comply with the duty, or b remedy the failure to comply with it. 5 A provisional notice of contravention may also state that OFCOM propose to impose a penalty on the person and, in such a case, the notice must— a give OFCOM’s reasons for proposing to impose the penalty, b indicate the amount in sterling of the penalty that is being proposed, and c give OFCOM’s reasons for proposing a penalty of that amount, including any aggravating or mitigating factors that OFCOM propose to take into account. 6 A provisional notice of contravention must— a state that the person may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice, and b specify the period within which such representations may be made. 7 A provisional notice of contravention may be given in respect of a failure by the same person to comply with more than one duty and, in such a case, the notice may include a proposal to impose a single penalty in respect of some or all of those duties (as an alternative to separate penalties). 8 Where a provisional notice of contravention is given in respect of a continuing failure to comply with a duty, the notice— a may be given in respect of any period during which the failure has continued, b must specify that period, and c may include a proposal to impose no more than one penalty in respect of that period. 9 Where a provisional notice of contravention is given to a person in respect of a failure to comply with a duty, a further provisional notice of contravention in respect of a failure to comply with that same duty may be given to that person only— a in respect of a separate instance of the failure that occurs after the first notice is given, b where a period is specified in the first notice in accordance with subsection (8) (b) , in respect of the continuation of the failure after the end of that period, or c if the notice is withdrawn without a confirmation decision under section 362AZ1 having been given to the person in respect of that failure. 10 OFCOM may give a provisional notice of contravention to— a a person who was but is no longer a provider of a regulated television selection service, or b a person who was but is no longer a provider of a designated internet programme service, if that person was a provider of a regulated television selection service or (as the case may be) a designated internet programme service at the time of the failure to which the notice relates. Confirmation decisions: general 362AZ1 1 This section applies where— a OFCOM have given a provisional notice of contravention to a person in relation to a failure to comply with a duty or duties, and b the period allowed for representations has expired. 2 After considering any representations that have been made (and any supporting evidence), OFCOM must decide whether or not to give the person a further notice under this section (a “confirmation decision”). 3 OFCOM may decide to give a person a confirmation decision only if they are satisfied that the person has failed, or has been failing, to comply with the notified duty or (as the case may be) one or more of the notified duties. 4 For the purposes of this section and sections 362AZ2 and 362AZ3 , a “ notified duty ” means a duty specified in the provisional notice of contravention. 5 If OFCOM decide not to give a person a confirmation decision (whether because they are not satisfied as described in subsection (3) or for any other reason), they must inform the person of that fact. 6 A confirmation decision must— a state that OFCOM are satisfied that the person has failed, or has been failing, to comply with one or more notified duties, and b give OFCOM’s reasons for being satisfied as described in paragraph (a) . 7 A confirmation decision may require the person to take such steps as OFCOM consider appropriate for either or both of the following purposes— a complying with a notified duty or duties; b remedying the failure to comply with that duty or those duties. 8 Where a provisional notice of contravention stated that OFCOM proposed to impose a penalty in relation to a notified duty or (by virtue of section 362AZ (7) ) in relation to notified duties, a confirmation decision may require the person to pay a penalty, of an amount in sterling determined by OFCOM, in relation to that duty or (as the case may be) those duties. 9 The amount determined by OFCOM under subsection (8) may be greater than the amount indicated in the provisional notice of contravention in accordance with section 362AZ (5) (b) . 10 OFCOM may give a confirmation decision to— a a person who was but is no longer a provider of a regulated television selection service, or b a person who was but is no longer a provider of a designated internet programme service, if that person was a provider of a regulated television selection service or (as the case may be) a designated internet programme service at the time of the failure to which the notice relates. Confirmation decisions: steps 362AZ2 1 This section applies where a confirmation decision requires the person to whom it is given to take steps as provided for by section 362AZ1 (7) . 2 The notice must— a specify the steps that are required and the notified duty or duties to which each relates, b give OFCOM’s reasons for requiring those steps to be taken, c specify a reasonable period within which each of the steps specified in the notice must be taken, and d contain information about the consequences of not taking the steps (including information about further kinds of enforcement action that it would be open to OFCOM to take). 3 Where a confirmation decision requires a person to take steps, the person to whom the notice is given has a duty to take those steps. 4 The duty under subsection (3) 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; c for any other appropriate remedy or relief. Confirmation decisions: penalties 362AZ3 1 This section applies where a confirmation decision imposes one or more penalties (see section 362AZ1 (8) ). 2 In relation to each penalty imposed, the notice must— a give OFCOM’s reasons for their decision to impose the penalty, b specify each notified duty to which the penalty relates, c give OFCOM’s reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account, d specify a reasonable period within which the penalty must be paid, and e contain information about the consequences of not paying the penalty (including information about the kinds of enforcement action that it would be open to OFCOM to take). 3 The period specified under subsection (2) (d) for the payment of a penalty must be at least 28 days beginning with the day on which the confirmation decision is given. 4 Schedule 16A contains further provision about the imposition of a penalty by a confirmation decision. Penalty for failure to comply with confirmation decisions 362AZ4 1 This section applies where— a OFCOM have given a confirmation decision to a person, b the notice includes requirements to take steps (as provided for by section 362AZ1 (7) ), and c OFCOM are satisfied that the person has failed to comply with one or more of those requirements. 2 OFCOM may give the person a penalty notice. 3 A “penalty notice” is a notice requiring a person to pay to OFCOM a penalty of an amount in sterling determined by OFCOM. 4 Before giving the person a penalty notice, OFCOM must— a notify the person that they propose to give a penalty notice in respect of the failure to comply with the confirmation decision, specifying the reasons for their proposal and indicating the amount of the proposed penalty, and b give the person an opportunity to make representations to OFCOM (with any supporting evidence) about their proposal. 5 A penalty notice must— a give OFCOM’s reasons for their decision to impose the penalty, b state the amount of the penalty, c state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account, d specify the period within which the penalty must be paid, and e contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take). 6 The period specified under subsection (5) (d) must be at least 28 days beginning with the day on which the penalty notice is given. 7 Schedule 16A contains further provision about the imposition of a penalty by a penalty notice. Enforcement: guidance 362AZ5 1 OFCOM must prepare and publish guidance about the exercise of their powers under sections 362AZ to 362AZ4 and Schedule 16B (so far as relating to this Part). 2 The guidance must include the factors that OFCOM will take into account in deciding whether to exercise any of those powers. 3 OFCOM may revise or replace any guidance published under this section and, where they do so, must publish the revised or replacement guidance. 4 Before preparing guidance under this section (or revising or replacing it), OFCOM must consult— a the Secretary of State, and b such other persons as they consider appropriate. 5 Guidelines prepared by OFCOM under section 392 (amount of penalties) may, so far as relating to penalties imposed by a confirmation decision under section 362AZ1 or a penalty notice under section 362AZ4 , be included in the same document as guidance under this section. 6 In exercising or deciding whether to exercise any of their powers under sections 362AZ to 362AZ4 and Schedule 16B (so far as relating to this Part), OFCOM must have regard to any guidance for the time being published under this section. Supplemental provisions of Part 3A Fees 362AZ6 1 OFCOM may require a person other than the BBC or S4C who is— a a provider of a designated internet programme service, or b a provider of a regulated television selection service, to pay to OFCOM a fee of an amount determined by OFCOM. 2 The amount of a fee required under subsection (1) must be determined by OFCOM in accordance with a statement of principles prepared and published by them for the purpose of this section. 3 Those principles must be such as appear to OFCOM to be likely to secure the following objectives— a that, on a year by year basis, the aggregate amount of the fees payable to OFCOM under subsection (1) is sufficient to meet, but does not exceed, the annual cost to OFCOM of carrying out their functions under this Part less an appropriate amount to take into account costs that will be met by fees payable— i by the BBC under section 198(4), or ii by S4C under section 207(6); b that the relationship between the aggregate amount of the fees and the cost to OFCOM of carrying out the functions is transparent; c that any fee required is justifiable and proportionate having regard to the circumstances of the person required to pay it. 4 As soon as reasonably practicable after the end of each financial year, OFCOM must publish a statement of accounts setting out in respect of that year— a the aggregate amount of the fees payable under subsection (1) for that year that have been received by OFCOM, b the aggregate amount of the fees payable under subsection (1) for that year that remain outstanding and are likely to be paid or recovered, and c the costs to them of carrying out their functions under this Part less an appropriate amount to take into account costs that have been or are to be met by fees payable— i by the BBC under section 198(4), or ii by S4C under section 207(6). 5 Any deficit or surplus shown (after applying this subsection for all previous years) by the statement of accounts is to be— a carried forward, and b taken into account in determining what is required to meet the objective described in subsection (3) (a) in relation to the following year. 6 OFCOM may repay a person some or all of a fee paid under subsection (1) if— a in the case of a fee paid by the provider of a designated internet programme service, OFCOM revoke the designation of an internet programme service provided by that person under section 362AB at some time during the period to which the fee relates; b in the case of a fee paid by the provider of a regulated television selection service— i the Secretary of State has revoked the designation of a regulated television selection service provided by that person at some time during the period to which the fee relates, or ii the person gives OFCOM a notice under section 362AH (2) or (3) in accordance with section 362AH (4) at some time during the period to which the fee relates. 7 For the purposes of this section, OFCOM’s costs of carrying out their functions under this Part during a financial year include their costs of preparing to carry out those functions during that year. 8 OFCOM— a may revise a statement of principles published by them, and b where they do so, must publish the statement as revised. 9 Before publishing a statement of principles or a revision of it, OFCOM must consult such persons as they consider appropriate. 10 In this section, a reference to the functions of OFCOM under this Part includes a reference to their functions under Schedules 16A and 16B , so far as relating to this Part. 11 In this section, “ financial year ” means a period of 12 months ending on 31 March. Non-payment of fee 362AZ7 1 This section applies if— a the provider of a designated internet programme service or regulated television selection service is liable to pay a fee to OFCOM under section 362AZ6 , and b in OFCOM’s opinion, the provider has not paid the full amount of the fee that the provider is liable to pay. 2 OFCOM may give the provider a notice under this subsection specifying— a the outstanding amount of the fee that OFCOM consider the provider is due to pay to them under section 362AZ6 , and b the period within which the provider must pay it. 3 A notice under subsection (2) — a may relate to fees required on different occasions; b may also state that OFCOM propose to impose a penalty on the provider. 4 The provider may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice. 5 Subsection (6) applies if— a the notice under subsection (2) stated that OFCOM propose to impose a penalty, b the period allowed for representations has expired, and c OFCOM are satisfied that an amount of the fee or fees is still due to them. 6 OFCOM may give the provider a penalty notice under this subsection requiring the provider to pay to OFCOM a penalty of an amount in sterling determined by OFCOM. 7 The penalty may consist of any of the following— a a single amount; b an amount calculated by reference to a daily rate; c a combination of a single amount and an amount calculated by reference to a daily rate. 8 The penalty notice may impose a penalty of a different kind, of a greater amount or (in the case of a penalty calculated by reference to a daily rate) payable over a longer period than that proposed in the notice about the proposed penalty. 9 See section 362AZ8 for information which must be included in notices under this section. 10 Nothing in this section affects OFCOM’s power to bring proceedings (whether before or after the imposition of a penalty by a notice under subsection (6) ) for the recovery of the whole or part of an amount due to OFCOM under section 362AZ6 . 11 But OFCOM may not bring such proceedings unless a provider has first been given a notice under subsection (2) specifying the amount due to OFCOM. Information to be included in a notice under section 362AZ7 362AZ8 1 A notice under section 362AZ7 (2) stating that OFCOM propose to impose a penalty must— a state the reasons why OFCOM propose to impose the penalty, b state whether OFCOM propose that the penalty should consist of a single amount, an amount calculated by reference to a daily rate, or a combination of the two, c indicate the amount of the proposed penalty, including (in relation to an amount calculated by reference to a daily rate) the daily rate and how the penalty would be calculated, d in relation to an amount calculated by reference to a daily rate, specify or describe the period for which OFCOM propose that the amount should be payable, e state the reasons for proposing a penalty of that amount, including any aggravating or mitigating factors that OFCOM propose to take into account, and f specify the period within which representations in relation to the proposed penalty may be made. 2 A penalty notice under section 362AZ7 (6) must— a give OFCOM’s reasons for their decision to impose the penalty, b state whether the penalty consists of a single amount, an amount calculated by reference to a daily rate, or a combination of the two, and how it is calculated, c in relation to a single amount, state that amount, d in relation to an amount calculated by reference to a daily rate, state the daily rate, e state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account, f specify a reasonable period within which the penalty must be paid, and g contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take). 3 A penalty notice under section 362AZ7 (6) must also specify the amount of the fee that is (in OFCOM’s opinion) due to be paid to OFCOM. 4 The period specified under subsection (2) (f) for the payment of a single amount must be at least 28 days beginning with the day on which the penalty notice is given. 5 Subsection (6) applies in relation to a penalty notice under section 362AZ7 (6) that includes a requirement to pay an amount calculated by reference to a daily rate. 6 Such a notice must— a state the date from which the amount begins to be payable, which must not be earlier than the day after the day on which the notice is given; b provide for the amount to continue to be payable at the daily rate until— i the date on which the full amount of the fee (as specified in the penalty notice) has been paid to OFCOM, or ii an earlier date specified in the penalty notice. 7 Schedule 16A contains further provision about the imposition of a penalty by a penalty notice under section 362AZ7 (6) . Monitoring role for OFCOM 362AZ9 OFCOM have the function of obtaining, compiling and keeping under review information about matters which may be relevant to— a designating or revoking the designation of an internet programme service under section 362AA or 362AB ; b designating or revoking the designation of a television selection service or specifying or ceasing to specify a description of television selection services under section 362AF ; c deciding whether to take enforcement action under this Part and Schedule 16B (so far as relating to this Part). Notices 362AZ10 1 This section applies in relation to a notice that may or must be given by OFCOM to a person under any provision of this Part or Schedule 16B (so far as relating to this Part). 2 OFCOM may give a notice to a person by— a delivering it by hand to the person, b leaving it at the person’s proper address, c sending it by post to the person at that address, or d sending it by email to that person’s email address. 3 A notice to a body corporate may be given to any officer of that body. 4 A notice to a partnership may be given to any partner or to a person who has the control or management of the partnership business. 5 A notice to an entity that is not a legal person under the law under which it is formed (other than a partnership) may be given to any member of the governing body of the entity. 6 In the case of a notice given to a person who is a provider of a regulated television selection service, the person’s proper address for the purposes of paragraphs (b) and (c) of subsection (2), and section 7 of the Interpretation Act 1978 in its application to those paragraphs, is any address (within or outside the United Kingdom) at which OFCOM believe, on reasonable grounds, that the notice will come to the attention of the person or (where that person is an entity) any director or other officer of that entity. 7 In the case of a notice given to a person other than a provider of a regulated television selection service, a person’s proper address for the purposes of paragraphs (b) and (c) of subsection (2), and section 7 of the Interpretation Act 1978 in its application to those paragraphs, is— a in the case of an entity, the address of the entity’s registered or principal office; b in any other case, the person’s last known address. 8 In the case of an entity registered or carrying on business outside the United Kingdom, or with offices outside the United Kingdom, the reference in subsection (7) to its principal office includes— a its principal office in the United Kingdom, or b if the entity has no office in the United Kingdom, any place in the United Kingdom at which OFCOM believe, on reasonable grounds, that the notice will come to the attention of any director or other officer of that entity. 9 For the purposes of subsection (2) (d) , a person’s email address is— a any email address published for the time being by that person as an address for contacting that person, or b if there is no such published address, any email address by means of which OFCOM believe, on reasonable grounds, that the notice will come to the attention of that person or (where that person is an entity) any director or other officer of that entity. 10 A notice sent by email is treated as given 48 hours after it was sent, unless the contrary is proved. 11 In this section— “ director ” includes any person occupying the position of a director, by whatever name called; “ officer ”, in relation to an entity, includes a director, a manager, a partner, an associate, a secretary or, where the affairs of the entity are managed by its members, a member. Application of Part 3A 362AZ11 1 A duty imposed on a provider of a television selection service by or under this Part applies in relation to that service only so far as it is made available for use by members of the public in the United Kingdom. 2 References in this Part to a television selection service include such a service provided from outside the United Kingdom (as well as such a service provided from within the United Kingdom). 3 References in this Part to an internet programme service include such a service provided from outside the United Kingdom (as well as such a service provided from within the United Kingdom). 4 The power to require the provision of information by an information notice includes power to require the provision of information held outside the United Kingdom. 5 Section 362AZ2 (4) (requirements enforceable in civil proceedings against a person) applies whether or not the person is in the United Kingdom. Interpretation of Part 3A 362AZ12 1 In this Part— “ the agreement objectives ” has the meaning given by section 362AM ; “ BBC company ”, “ C4 company ” and “ S4C company ” have the same meaning as in Part 3 (see section 362); “ designated internet programme service ” has the meaning given by section 362AA ; “ entity ” means a body or association of persons or an organisation, regardless of whether the body, association or organisation is— formed under the law of any part of the United Kingdom or of a country or territory outside the United Kingdom, or a legal person under the law under which it is formed; “ information notice ” has the meaning given by section 362AS ; “ internet programme service ” has the meaning given by section 362AA ; “ licensed public service channel ” has the same meaning as in Part 3 (see section 362); “ listed channel ” has the meaning given by section 362AM ; “ programme ” means such programme as is described in section 368ZA; “ provision ”— in relation to an internet programme service, is to be construed in accordance with subsection (2) ; in relation to a television selection service, is to be construed in accordance with section 362AE (5) ; “ public service broadcaster ” has the meaning given by section 264; “ public service remit ” has the meaning given by section 362AA ; “ public service remit content ” has the meaning given by section 362AA ; “ regulated television selection service ” has the meaning given by section 362AF ; “ television selection service ” has the meaning given by section 362AE . 2 The person, and the only person, who is to be treated for the purposes of this Part as providing an internet programme service is the person who has general control of the service. 3 In the case of an internet programme service where the programmes provided to a user of the service are contained in a single on-demand programme service, the person with general control of the service is the person who has editorial responsibility for the on-demand programme service (see section 368A(4)). 4 In the case of any other internet programme service, the person with general control of the service is the person who has general control over which— a on-demand programme services, b non-UK on-demand programme services, and c services that fall within section 362AA (10) (c) , are included in the service. 5 For the purposes of this Part— a the provision of an internet programme service by the BBC does not include its provision by a BBC company; b the provision of an internet programme service by C4C does not include its provision by a C4 company; c the provision of an internet programme service by S4C 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 S4C over decisions by a BBC company, C4 company or S4C company about what is to be comprised in a service is to be disregarded for the purposes of determining who has general control of the service. 6 For the purposes of this Part, a person (“ P ”) is associated with a public service broadcaster if, and only if— a P is a body corporate which is controlled by the public service broadcaster; or b where the public service broadcaster is the provider of a Channel 3 service or Channel 5, P and the public service broadcaster are bodies corporate which are both controlled by the same person. 7 In subsection (6) “ controlled ” has the same meaning as in Part 1 of Schedule 2 to the 1990 Act. 8 A reference in this Part to access, in relation to a programme provided by an internet programme service, is a reference to the opportunity of viewing in an intelligible form a programme so provided. 9 For the purposes of this Part, a reference to an internet programme service being included in a television selection service is a reference to being one of the internet programme services that are, or whose programmes are, available for selection and access by means of the television selection service. 10 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 by 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. Part 3B Regulation of radio selection services Designated radio selection services Meaning of “radio selection service” 362BA 1 In this Part, “ radio selection service ” means a service provided by means of the internet which enables, or among other things enables, a user of the service— a to make a selection between internet radio services provided by different providers, and b to cause a selected internet radio service to play, by giving spoken commands that are recorded by equipment connected to the internet. 2 The Secretary of State may by regulations amend this section so as to alter the definition of “radio selection service”. 3 The amendments that may be made by virtue of subsection (2) include— a amendments adding, removing or altering a thing that a radio selection service is to enable a user to do, and b amendments adding, removing or altering a way in which a radio selection service may be caused to operate. 4 The power in section 402(3)(c) for regulations under subsection (2) to make consequential provision includes power to make provision which amends any enactment. 5 Before making regulations under subsection (2) , the Secretary of State must consult OFCOM. 6 A statutory instrument containing regulations under subsection (2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. Meaning of “designated radio selection service” 362BB 1 For the purposes of this Part, a “designated radio selection service” is a radio selection service designated by the Secretary of State by regulations. 2 The Secretary of State may designate a radio selection service under subsection (1) only if the Secretary of State considers that the level of use of the service in the United Kingdom to listen to internet radio services is significant (and the Secretary of State may consider the level of use to be significant if the Secretary of State considers it to be significant in certain circumstances, such as while in a vehicle). 3 Before making regulations under subsection (1) , the Secretary of State must have received a report under section 362BC relating to the radio selection service in question. 4 Before making regulations under subsection (1) , the Secretary of State must consult— a persons who appear to the Secretary of State to represent providers of radio selection services; b persons who appear to the Secretary of State to represent providers of internet radio services; c such other persons as the Secretary of State considers appropriate. 5 The Secretary of State may by regulations amend this section so as to add or remove a condition that must be satisfied before a radio selection service may be designated under subsection (1) or to alter such a condition. 6 Subsection (4) applies in relation to the making of regulations under subsection (5) as it applies in relation to the making of regulations under subsection (1) . 7 The power in section 402(3)(c) for regulations under subsection (5) to make consequential provision includes power to make provision which amends any enactment. 8 A statutory instrument containing regulations under subsection (5) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. Advice from OFCOM 362BC 1 OFCOM may prepare reports making recommendations about the exercise of the power under section 362BB (1) . 2 Where— a the Secretary of State proposes to make regulations under section 362BB (1) , and b the Secretary of State has not received a report under subsection (1) relating to the radio selection service or services that would be affected by the proposed regulations, the Secretary of State must request OFCOM to prepare a report making recommendations about exercising the power under section 362BB (1) in relation to that service or those services. 3 Where the Secretary of State makes a request under subsection (2) , OFCOM must prepare such a report as soon as practicable. 4 A report under subsection (1) or (3) relating to the exercise of the power under section 362BB (1) must include OFCOM’s assessment, in relation to each radio selection service in question, of— a the number of members of the public using the service; b the manner in which the service is used by those persons; c whether the level of use of the service is significant; d such matters as OFCOM consider likely to affect the matters referred to in paragraph (a) , (b) or (c) . 5 Where OFCOM prepares a report under subsection (1) or (3) , OFCOM must— a give it to the Secretary of State, and b publish it. 6 If the Secretary of State exercises the power under section 362BB (1) in a manner which differs from recommendations made in a report under this section, the Secretary of State must publish, no later than the time at which the regulations are made, a statement of the reasons for doing so. 7 OFCOM must draw up, and from time to time review and revise, a statement about the principles and methods to be followed by OFCOM when preparing reports under subsection (1) or (3) . 8 OFCOM must publish the statement and any revised statement. Revocation of designation of radio selection service 362BD 1 The Secretary of State may by regulations revoke the designation of a designated radio selection service. 2 The provider of a designated radio selection service may request the Secretary of State to revoke its designation. 3 The Secretary of State must revoke the designation of a designated radio selection service by regulations under subsection (1) if the Secretary of State considers that the level of use of the service in the United Kingdom to listen to internet radio services is not significant. 4 Before revoking the designation of a designated radio selection service, the Secretary of State must have received a report from OFCOM making recommendations about the exercise of the power under subsection (1) in relation to that service. 5 Where the Secretary of State requests OFCOM to prepare a report making recommendations about the exercise of the power under subsection (1) in relation to a designated radio selection service, OFCOM must— a prepare such a report in relation to that service as soon as practicable, b give it to the Secretary of State, and c publish it. List of designated radio selection services etc 362BE 1 OFCOM must establish and maintain an up to date list of designated radio selection services and their providers. 2 A provider of a designated radio selection service must give notice to OFCOM if the service ceases to be provided. 3 A notice given to OFCOM under this section must— a be sent in such manner as OFCOM may require; b contain such information as OFCOM may require. 4 OFCOM must publish the list on a publicly accessible part of their website. Relevant internet radio services Meaning of “internet radio service” 362BF 1 In this Part, “ internet radio service ” means a service, or a dissociable section of a service, which consists in the provision by a person of programmes consisting wholly of sound (together with any ancillary services) with a view to their being made available for reception by members of the public by being distributed by means of the internet (whether by the provider of the service or another person). 2 In this section, “ ancillary service ”, in relation to an internet radio service, means a service which is provided by the provider of that internet radio service and consists in the provision of a service (other than advertising) which— a is ancillary to the programmes included in that internet radio service and is directly related to their contents, or b relates to the promotion or listing of such programmes. Meaning of “relevant internet radio service” 362BG 1 In this Part, “ relevant internet radio service ” means an internet radio service for the time being included in the list maintained by OFCOM under subsection (2) . 2 OFCOM must establish and maintain an up to date list of the internet radio services in relation to which the conditions in subsections (3) and (5) are satisfied and their providers. 3 The condition in this subsection is that, in the opinion of OFCOM, the provider of the service has in place an effective system or process for securing that the service corresponds to a UK radio service that is provided by the provider of the internet radio service. 4 For the purposes of subsection (3) , an internet radio service corresponds to a UK radio service if, disregarding advertisements, all of the programmes included in the internet radio service are broadcast on the UK radio service at the same time as they are provided by the internet radio service. 5 The condition in this subsection is that the provider of an internet radio service— a has given notice to OFCOM requesting that the service be included in the list, and b has not since then given notice to OFCOM under subsection (6) or (7) . 6 The provider of an internet radio service included in the list may give notice to OFCOM requesting that the service be removed from the list. 7 The provider of an internet radio service included in the list must give notice to OFCOM if— a that person ceases to be the provider of the service, b that person ceases to be the provider of the UK radio service to which it relates, or c the service ceases to be provided. 8 A notice given to OFCOM under this section must— a be sent in such manner as OFCOM may require; b contain such information as OFCOM may require. 9 OFCOM must take appropriate steps to keep the list up to date, including by carrying out further assessments of whether a provider of an internet radio service has in place such system or process as is described in subsection (3) . 10 OFCOM must publish the list on a publicly accessible part of their website. 11 In this section— “ digital sound programme service ” has the same meaning as in Part 2 of the 1996 Act (see section 40 of that Act); “ restricted service ” has the same meaning as in section 245; “ short-duration restricted service ” means a restricted service authorised to be provided by a licence under Part 3 of the 1990 Act where the period specified in the licence as the period for which the licence is in force is less than 12 months; “ sound broadcasting service ” has the same meaning as in Part 3 of the 1990 Act (see section 126 of that Act); “ UK radio service ” means— a sound broadcasting service, other than a short-duration restricted service, provided by the BBC or authorised to be provided by a licence under Part 3 of the 1990 Act, or a digital sound programme service provided by the BBC or authorised to be provided by a licence under Part 2 of the 1996 Act. Sections 362BF and 362BG : power to amend 362BH 1 The Secretary of State may by regulations— a amend section 362BF so as to alter the definition of “internet radio service”; b amend section 362BG so as to alter the definition of “relevant internet radio service”. 2 The amendments that may be made by virtue of subsection (1) (a) include amendments adding or removing a condition that must be satisfied in relation to a service or altering such a condition. 3 The amendments that may be made by virtue of subsection (1) (b) include amendments adding or removing a condition that must be satisfied in relation to an internet radio service or altering such a condition. 4 The conditions for which provision may be made by virtue of subsection (3) include conditions preventing or restricting charging for allowing the internet radio service in question to be played. 5 The power in section 402(3)(c) for regulations under subsection (1) to make consequential provision includes power to make provision which amends any enactment. 6 Before making regulations under subsection (1) , the Secretary of State must consult— a OFCOM, b persons who appear to the Secretary of State to represent providers of radio selection services, c persons who appear to the Secretary of State to represent providers of internet radio services, and d such other persons as the Secretary of State considers appropriate. 7 A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by each House of Parliament. Regulation of radio selection services Access to relevant internet radio services 362BI 1 The provider of a designated radio selection service must take all reasonable steps to secure that users of the service— a are able, within a reasonable period beginning with the inclusion of an internet radio service in the list under section 362BG — i to select that internet radio service, and ii to cause that service to play, by giving spoken commands as described in section 362BA (1) , and b are able to continue to do so while that internet radio service is included in the list. 2 The provider of a designated radio selection service must take all reasonable steps to secure that, where the service is used as described in subsection (1) — a no items are played before the selected service is caused to play, other than— i a brief identification of the selected service, ii if the service employs another service (or other services) provided by means of the internet to cause the selected service to play, a brief identification of that other service (or one of those other services), and iii if the provider of the selected service agrees, one or more advertisements, and b the playing of the selected service is not interrupted. This subsection is subject to subsection (5) . 3 Subsection (4) applies if the provider of a relevant internet radio service requests the provider of a designated radio selection service to secure that the service employs a particular method as regards that relevant internet radio service when complying with subsection (1) (for example, a method that involves the service employing another service provided by means of the internet to cause that relevant internet radio service to play). 4 Where this subsection applies, the provider of the designated radio selection service must take all reasonable steps to secure that, on an occasion when the service is being used as described in subsection (1) in relation to that relevant internet radio service, the service employs that method, subject to subsection (5) . 5 Subsections (2) and (4) are not to be taken to require the provider of a designated radio selection service to override the preferences of a user of the service as to the way in which the service operates. 6 A provider of a designated radio selection service— a must not charge a provider of a relevant internet radio service for doing what that provider of a designated radio selection service is required to do by subsection (1) , (2) or (4) in relation to that relevant internet radio service, and b must not enter into an agreement that provides for the payment by a provider of a relevant internet radio service of charges, which would breach, or are capable of breaching, the prohibition in paragraph (a) . Further provision about access to relevant internet radio services 362BJ 1 The provider of a designated radio selection service must draw up a statement about how the provider intends to comply with the duties and prohibition in section 362BI . 2 The provider must keep the statement under review and, if appropriate, revise it. 3 The provider must publish the statement and any revised statement. Code of practice 362BK 1 OFCOM must issue a code of practice describing actions that OFCOM recommend for the purpose of securing that the manner in which a designated radio selection service operates complies with the duties and prohibition in section 362BI . 2 OFCOM may— a revise a code of practice issued under this section and issue the code as revised; b withdraw a code of practice issued under this section and issue a new code of practice. 3 OFCOM must— a publish a code of practice issued under this section in such manner as they consider appropriate; b keep a code of practice issued under this section under review. 4 If requested by the Secretary of State to review all or part of a code of practice issued under this section, OFCOM must review the code or that part of it. 5 The actions recommended in a code of practice issued under this section may include— a actions relating to particular descriptions of designated radio selection services; b actions relating to particular descriptions of relevant internet radio services. Effects of the code of practice 362BL 1 The provider of a designated radio selection service is to be treated as complying with a duty or prohibition in section 362BI if the provider takes the actions described in the code of practice which are recommended for the purpose of complying with that duty or prohibition. 2 A failure by the provider of a designated radio selection service to act in accordance with a provision of the code of practice does not of itself make the provider liable to legal proceedings before a court or tribunal. 3 In any legal proceedings before a court or tribunal, the court or tribunal must take into account a provision of the code of practice in determining any question arising in the proceedings if— a the question relates to a time when the provision was in force, and b the provision appears to the court or tribunal to be relevant to the question. 4 OFCOM must take into account a provision of the code of practice in determining any question arising in connection with the carrying out by them of a relevant function if— a the question relates to a time when the provision was in force, and b the provision appears to OFCOM to be relevant to the question. 5 In this section, “ relevant function ” means a function conferred on OFCOM by any of sections 362BR to 362BW (enforcement). Issuing a code of practice 362BM 1 Before issuing a code of practice under section 362BK , OFCOM— a must publish a draft of the code or (as the case may be) a draft of the revisions of the existing code; b must consult the following about the draft— i the Secretary of State; ii persons who appear to OFCOM to represent providers of internet radio services; iii persons who appear to OFCOM to represent providers of radio selection services; iv such other persons as OFCOM consider appropriate; c may make such alterations to the draft as OFCOM consider appropriate following the consultation. 2 Subsection (1) does not apply in relation to revisions of the code of practice if— a OFCOM give the Secretary of State a draft of the revisions of the existing code, and b the Secretary of State agrees that it is not necessary for subsection (1) to apply in relation to the revisions. Complaints procedures 362BN The provider of a designated radio selection service must establish and maintain procedures for the handling and resolution of complaints made by providers of relevant internet radio services that the provider is failing, or has failed, to comply with a duty or prohibition in section 362BI . Modification of regulation of radio selection services Power to modify regulation 362BO 1 The Secretary of State may by regulations amend this Part so as to add to the duties and prohibitions imposed on providers of radio selection services or to alter or remove such a duty or prohibition. 2 The provision that may be made by regulations under subsection (1) includes— a provision about enabling the use of a radio selection service to select and cause to play any relevant internet radio service of a particular sort (for example, a service characterised by the nature of its contents or the identity of its provider); b provision about the terms and conditions that may be offered by the provider of a radio selection service to the provider of a relevant internet radio service for or in connection with the use of the service to access the relevant internet radio service; c provision about the charges that may be imposed by the provider of a radio selection service on the provider of a relevant internet radio service in connection with the use of the service to access the relevant internet radio service; d provision about the publication of information about such terms, conditions and charges. 3 The power in section 402(3)(c) for regulations under subsection (1) to make consequential provision includes power to make provision which amends any enactment. 4 Before making regulations under subsection (1) , the Secretary of State must have received a report of a review under section 362BP . 5 Before making regulations under subsection (1) , the Secretary of State must consult— a persons who appear to the Secretary of State to represent providers of internet radio services; b persons who appear to the Secretary of State to represent providers of radio selection services; c such other persons as the Secretary of State considers appropriate. 6 A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by each House of Parliament. Review by OFCOM 362BP 1 OFCOM may prepare reports that review the adequacy of the regulation of radio selection services by this Part. 2 Where— a the Secretary of State proposes to make regulations under section 362BO (1) , and b the Secretary of State has not received a report under subsection (1) , the Secretary of State must request OFCOM to prepare a report that reviews the adequacy of the regulation of radio selection services by this Part. 3 Where the Secretary of State makes a request under subsection (2) , OFCOM must prepare such a report as soon as practicable. 4 OFCOM must give the Secretary of State a report prepared under subsection (1) or (3) . 5 OFCOM must publish reports given to the Secretary of State under this section. Power to require information Power to require information 362BQ 1 OFCOM may by notice (an “information notice”) require a person within subsection (4) to provide them with any information that they require for the purpose of carrying out their functions under this Part. 2 The power conferred by subsection (1) includes power to require a person within subsection (4) to obtain or generate information. 3 The power conferred by subsection (1) must be exercised in a way that is proportionate to the use to which the information is to be put by OFCOM. 4 The persons within this subsection are— a a provider of a radio selection service; b a provider of an internet radio service; c a person who provides a relevant ancillary service in relation to a radio selection service or an internet radio service; d a person who was within any of paragraphs (a) to (c) at a time to which the required information relates; e a person who is not within any of paragraphs (a) to (d) but who appears to OFCOM to have, or to be able to obtain or generate, information required by them as mentioned in subsection (1) . 5 The information that OFCOM may require under subsection (1) includes, in particular, information that they require for any one or more of the following purposes— a the purpose of preparing a report under section 362BC (advice from OFCOM about the designation of a radio selection service); b the purpose of preparing a report under section 362BD (advice from OFCOM about revoking the designation of a radio selection service); c the purpose of assessing compliance with section 362BE (2) (duty of providers of radio selection services to notify OFCOM); d the purpose of assessing whether a service is a relevant internet radio service (see sections 362BF and 362BG ); e the purpose of assessing compliance with section 362BG (7) (duty of providers of certain services to notify OCFOM); f the purpose of assessing compliance with a duty or prohibition under section 362BI or 362BJ (access duties of providers of designated radio selection services etc); g the purpose of preparing or reviewing a code of practice under section 362BK (code of practice relating to duties and prohibition under section 362BI ); h the purpose of assessing compliance with the duty under section 362BN (duty to establish and maintain complaints procedures); i the purpose of preparing a report under section 362BP (reports reviewing adequacy of the regulation of designated radio selection services by this Part); j the purpose of assessing compliance with any requirements imposed by a confirmation decision under section 362BS ; k the purpose of determining the appropriate fee that a provider is required to pay under section 362BX ; l the purpose of OFCOM’s monitoring role under section 362BZ1 ; m the purpose of ascertaining the amount of a person’s or a group of entities’ qualifying worldwide revenue for the purposes of paragraph 3 or 4 of Schedule 16A . 6 An information notice must— a specify or describe the information to be provided, b specify why OFCOM require the information, c specify the form and manner in which the information must be provided, and d contain information about the consequences of not complying with the notice. 7 An information notice must specify when the information must be provided which may be— a on or by a specified date, or b within a specified period. 8 The power conferred by subsection (1) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings. 9 A person to whom an information notice is given must provide the information in accordance with any requirements included in the notice (subject to subsection (10) ). 10 The duty under subsection (9) does not require a disclosure of information if that disclosure would contravene the data protection legislation (but, in determining whether a disclosure would do so, that duty is to be taken into account). 11 For the purposes of subsection (4) (c) , a service is a “ relevant ancillary service ” in relation to a radio selection service or an internet radio service if it facilitates the provision of that service (or part of it), whether directly or indirectly. 12 In this section, a reference to the functions of OFCOM under this Part includes a reference to their functions under Schedules 16A and 16B , so far as relating to this Part. 13 In this section, “ data protection legislation ” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act). Enforcement Provisional notices of contravention 362BR 1 OFCOM may give a notice under this section (a “provisional notice of contravention”) to a person if they consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with any duty or prohibition under section 362BE , 362BG , 362BI , 362BJ or 362BN . 2 OFCOM may also give a provisional notice of contravention to a person to whom an information notice has been given if they consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with the duty under section 362BQ (9) . 3 A provisional notice of contravention must— a specify the duty or prohibition as regards which (in OFCOM’s opinion) there are reasonable grounds for believing the person has failed, or is failing, to comply, and b give OFCOM’s reasons for that opinion. 4 A provisional notice of contravention may also specify steps that OFCOM consider the person needs to take in order to— a comply with the duty or prohibition, or b remedy the failure to comply with it. 5 A provisional notice of contravention may also state that OFCOM propose to impose a penalty on the person and, in such a case, the notice must— a give OFCOM’s reasons for proposing to impose the penalty, b indicate the amount in sterling of the proposed penalty, and c give OFCOM’s reasons for proposing a penalty of that amount, including any aggravating or mitigating factors that OFCOM propose to take into account. 6 A provisional notice of contravention must— a state that the person may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice, and b specify the period within which such representations may be made. 7 A provisional notice of contravention may be given in respect of a failure by the same person to comply with more than one duty or prohibition and, in such a case, the notice may include a proposal to impose a single penalty in respect of some or all of those duties or duties and prohibition (as an alternative to separate penalties). 8 Where a provisional notice of contravention is given in respect of a continuing failure to comply with a duty or prohibition, the notice— a may be given in respect of any period during which the failure has continued, b must specify that period, and c may include a proposal to impose no more than one penalty in respect of that period. 9 Where a provisional notice of contravention is given to a person in respect of a failure to comply with a duty or prohibition, a further provisional notice of contravention in respect of a failure to comply with that same duty or prohibition may be given to that person only— a in respect of a separate instance of the failure that occurs after the first notice is given, b where a period is specified in the first notice in accordance with subsection (8) (b) , in respect of the continuation of the failure after the end of that period, or c if the notice is withdrawn without a confirmation decision under section 362BS having been given to the person in respect of that failure. 10 OFCOM may give a provisional notice of contravention to— a a person who was but is no longer a provider of a designated radio selection service, or b a person who was but is no longer a provider of a relevant internet radio service, if that person was a provider of a designated radio selection service or (as the case may be) a relevant internet radio service at the time of the failure to which the notice relates. Confirmation decisions: general 362BS 1 This section applies where— a OFCOM have given a provisional notice of contravention to a person in relation to a failure to comply with a duty or duties or a prohibition, and b the period allowed for representations has expired. 2 After considering any representations that have been made (and any supporting evidence), OFCOM must decide whether or not to give the person a further notice under this section (a “confirmation decision”). 3 OFCOM may decide to give a person a confirmation decision only if they are satisfied that the person has failed, or has been failing, to comply with the notified duty or one or more of the notified duties. 4 For the purposes of this section and sections 362BT and 362BU , a “ notified duty ” means a duty or prohibition specified in the provisional notice of contravention. 5 If OFCOM decide not to give a person a confirmation decision (whether because they are not satisfied as described in subsection (3) or for any other reason), they must inform the person of that fact. 6 A confirmation decision must— a state that OFCOM are satisfied that the person has failed, or has been failing, to comply with one or more notified duties, and b give OFCOM’s reasons for being satisfied as described in paragraph (a) . 7 A confirmation decision may require the person to take such steps as OFCOM consider appropriate for either or both of the following purposes— a complying with a notified duty or duties; b remedying the failure to comply with that duty or those duties. 8 Where a provisional notice of contravention stated that OFCOM proposed to impose a penalty in relation to a notified duty or (by virtue of section 362BR (7) ) in relation to notified duties, a confirmation decision may require the person to pay a penalty, of an amount in sterling determined by OFCOM, in relation to that duty or (as the case may be) those duties. 9 The amount determined by OFCOM under subsection (8) may be greater than the amount indicated in the provisional notice of contravention in accordance with section 362BR (5) (b) . 10 OFCOM may give a confirmation decision to— a a person who was but is no longer a provider of a designated radio selection service, or b a person who was but is no longer a provider of a relevant internet radio service, if that person was a provider of a designated radio selection service or (as the case may be) a relevant internet radio service at the time of the failure to which the decision relates. Confirmation decisions: steps 362BT 1 This section applies where a confirmation decision requires the person to whom it is given to take steps as provided for by section 362BS (7) . 2 The notice must— a specify the steps that are required and the notified duty or duties to which each relates, b give OFCOM’s reasons for requiring those steps to be taken, c specify a reasonable period within which each of the steps specified in the notice must be taken, and d contain information about the consequences of not taking the steps (including information about further kinds of enforcement action that it would be open to OFCOM to take). 3 Where a confirmation decision requires a person to take steps, the person to whom the notice is given has a duty to take those steps. 4 The duty under subsection (3) 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; c for any other appropriate remedy or relief. Confirmation decisions: penalties 362BU 1 This section applies where a confirmation decision imposes one or more penalties (see section 362BS (8) ). 2 In relation to each penalty imposed, the notice must— a give OFCOM’s reasons for their decision to impose the penalty, b specify each notified duty to which the penalty relates, c give OFCOM’s reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account, d specify a reasonable period within which the penalty must be paid, and e contain information about the consequences of not paying the penalty (including information about the kinds of enforcement action that it would be open to OFCOM to take). 3 The period specified under subsection (2) (d) for the payment of a penalty must be at least 28 days beginning with the day on which the confirmation decision is given. 4 Schedule 16A contains further provision about the imposition of a penalty by a confirmation decision. Penalty for failure to comply with confirmation decision 362BV 1 This section applies where— a OFCOM have given a confirmation decision to a person, b the notice includes requirements to take steps (as provided for by section 362BS (7) ), and c OFCOM are satisfied that the person has failed to comply with one or more of those requirements. 2 OFCOM may give the person a penalty notice. 3 A “penalty notice” is a notice requiring a person to pay to OFCOM a penalty of an amount in sterling determined by OFCOM. 4 Before giving the person a penalty notice, OFCOM must— a notify the person that they propose to give a penalty notice in respect of the failure to comply with the confirmation decision, specifying the reasons for their proposal and indicating the amount of the proposed penalty, and b give the person an opportunity to make representations to OFCOM (with any supporting evidence) about their proposal. 5 A penalty notice must— a give OFCOM’s reasons for their decision to impose the penalty, b state the amount of the penalty, c state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account, d specify the period within which the penalty must be paid, and e contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take). 6 The period specified under subsection (5) (d) must be at least 28 days beginning with the day on which the penalty notice is given. 7 Schedule 16A contains further provision about the imposition of a penalty by a penalty notice. Enforcement: guidance 362BW 1 OFCOM must prepare and publish guidance about the exercise of their powers under sections 362BR to 362BV and Schedule 16B (so far as relating to this Part). 2 The guidance must include the factors that OFCOM will take into account in deciding whether to exercise any of those powers. 3 OFCOM may revise or replace any guidance published under this section and, where they do so, must publish the revised or replacement guidance. 4 Before preparing guidance under this section (or revising or replacing it), OFCOM must consult— a the Secretary of State, and b such other persons as they consider appropriate. 5 Guidelines prepared by OFCOM under section 392 (amount of penalties) may, so far as relating to penalties imposed by a confirmation decision under section 362BS or a penalty notice under section 362BV , be included in the same document as guidance under this section. 6 In exercising or deciding whether to exercise any of their powers under sections 362BR to 362BV and Schedule 16B (so far as relating to this Part), OFCOM must have regard to any guidance for the time being published under this section. Supplemental provisions of Part 3B Fees 362BX 1 OFCOM may require any of the following persons to pay to OFCOM a fee of an amount determined by OFCOM— a a provider of a relevant internet radio service; b a provider of a designated radio selection service. 2 The amount of a fee required under subsection (1) must be determined by OFCOM in accordance with a statement of principles prepared and published by them for the purpose of this section. 3 Those principles must be such as appear to OFCOM to be likely to secure the following objectives— a that, on a year by year basis, the aggregate amount of the fees payable to OFCOM under subsection (1) is sufficient to meet, but does not exceed, the annual cost to OFCOM of carrying out their functions under this Part less an appropriate amount to take into account costs that will be met by fees payable by the BBC under section 198(4); b that the relationship between the aggregate amount of the fees and the cost to OFCOM of carrying out the functions is transparent; c that any fee required is justifiable and proportionate having regard to the circumstances of the person required to pay it. 4 As soon as reasonably practicable after the end of each financial year, OFCOM must publish a statement of accounts setting out in respect of that year— a the aggregate amount of the fees payable under subsection (1) for that year that have been received by OFCOM, b the aggregate amount of the fees payable under subsection (1) for that year that remain outstanding and are likely to be paid or recovered, and c the costs to them of carrying out their functions under this Part less an appropriate amount to take into account costs that have been or are to be met by fees payable by the BBC under section 198(4). 5 Any deficit or surplus shown (after applying this subsection for all previous years) by the statement of accounts is to be— a carried forward, and b taken into account in determining what is required to meet the objective described in subsection (3) (a) in relation to the following year. 6 OFCOM may repay a person some or all of a fee paid under subsection (1) if, in the case of a fee paid by the provider of a designated radio selection service— a the Secretary of State has revoked the designation of a designated radio selection service provided by that person at some time during the period to which the fee relates, or b the person gives OFCOM a notice under section 362BE (2) in accordance with section 362BE (3) at some time during the period to which the fee relates. 7 For the purposes of this section, OFCOM’s costs of carrying out their functions under this Part during a financial year include their costs of preparing to carry out those functions during that year. 8 OFCOM— a may revise a statement of principles published by them, and b where they do so, must publish the statement as revised. 9 Before publishing a statement of principles or a revision of it, OFCOM must consult such persons as they consider appropriate. 10 In this section, a reference to the functions of OFCOM under this Part includes a reference to their functions under Schedules 16A and 16B , so far as relating to this Part. 11 In this section, “ financial year ” means a period of 12 months ending on 31 March. Non-payment of fee 362BY 1 This section applies if— a the provider of a relevant internet radio service or a designated radio selection service is liable to pay a fee to OFCOM under section 362BX , and b in OFCOM’s opinion, the provider has not paid the full amount of the fee that the provider is liable to pay. 2 OFCOM may give the provider a notice under this subsection specifying— a the outstanding amount of the fee that OFCOM consider the provider is due to pay to them under section 362BX , and b the period within which the provider must pay it. 3 A notice under subsection (2) — a may relate to fees required on different occasions; b may also state that OFCOM propose to impose a penalty on the provider. 4 The provider may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice. 5 Subsection (6) applies if— a the notice under subsection (2) stated that OFCOM propose to impose a penalty, b the period allowed for representations has expired, and c OFCOM are satisfied that an amount of the fee or fees is still due to them. 6 OFCOM may give the provider a penalty notice under this subsection requiring the provider to pay to OFCOM a penalty of an amount in sterling determined by OFCOM. 7 The penalty may consist of any of the following— a a single amount; b an amount calculated by reference to a daily rate; c a combination of a single amount and an amount calculated by reference to a daily rate. 8 The penalty notice may impose a penalty of a different kind, of a greater amount or (in the case of a penalty calculated by reference to a daily rate) payable over a longer period than that proposed in the notice about the proposed penalty. 9 See section 362BZ for information which must be included in notices under this section. 10 Nothing in this section affects OFCOM’s power to bring proceedings (whether before or after the imposition of a penalty by a notice under subsection (6) ) for the recovery of the whole or part of an amount due to OFCOM under section 362BX . 11 But OFCOM may not bring such proceedings unless a provider has first been given a notice under subsection (2) specifying the amount due to OFCOM. Information to be included in a notice under section 362BY 362BZ 1 A notice under section 362BY (2) stating that OFCOM propose to impose a penalty must— a state the reasons why OFCOM propose to impose the penalty, b state whether OFCOM propose that the penalty should consist of a single amount, an amount calculated by reference to a daily rate, or a combination of the two, c indicate the amount of the proposed penalty, including (in relation to an amount calculated by reference to a daily rate) the daily rate and how the penalty would be calculated, d in relation to an amount calculated by reference to a daily rate, specify or describe the period for which OFCOM propose that the amount should be payable, e state the reasons for proposing a penalty of that amount, including any aggravating or mitigating factors that OFCOM propose to take into account, and f specify the period within which representations in relation to the proposed penalty may be made. 2 A penalty notice under section 362BY (6) must— a give OFCOM’s reasons for their decision to impose the penalty, b state whether the penalty consists of a single amount, an amount calculated by reference to a daily rate, or a combination of the two, and how it is calculated, c in relation to a single amount, state that amount, d in relation to an amount calculated by reference to a daily rate, state the daily rate, e state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account, f specify a reasonable period within which the penalty must be paid, and g contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take). 3 A penalty notice under section 362BY (6) must also specify the amount of the fee that is (in OFCOM’s opinion) due to be paid to OFCOM. 4 The period specified under subsection (2) (f) for the payment of a single amount must be at least 28 days beginning with the day on which the penalty notice is given. 5 Subsection (6) applies in relation to a penalty notice under section 362BY (6) that includes a requirement to pay an amount calculated by reference to a daily rate. 6 Such a notice must— a state the date from which the amount begins to be payable, which must not be earlier than the day after the day on which the notice is given; b provide for the amount to continue to be payable at the daily rate until— i the date on which the full amount of the fee (as specified in the penalty notice) has been paid to OFCOM, or ii an earlier date specified in the penalty notice. 7 Schedule 16A contains further provision about the imposition of a penalty by a penalty notice under section 362BY (6) . Monitoring role for OFCOM 362BZ1 OFCOM have the function of obtaining, compiling and keeping under review information about matters which may be relevant to— a designating or revoking the designation of a radio selection service (see sections 362BB and 362BD ); b deciding whether to take enforcement action under this Part and Schedule 16B (so far as relating to this Part). Notices 362BZ2 1 This section applies in relation to a notice that may or must be given by OFCOM to a person under any provision of this Part or Schedule 16B (so far as relating to this Part). 2 OFCOM may give a notice to a person by— a delivering it by hand to the person, b leaving it at the person’s proper address, c sending it by post to the person at that address, or d sending it by email to that person’s email address. 3 A notice to a body corporate may be given to any officer of that body. 4 A notice to a partnership may be given to any partner or to a person who has the control or management of the partnership business. 5 A notice to an entity that is not a legal person under the law under which it is formed (other than a partnership) may be given to any member of the governing body of the entity. 6 In the case of a notice given to a person who is a provider of a designated radio selection service, the person’s proper address for the purposes of paragraphs (b) and (c) of subsection (2) , and section 7 of the Interpretation Act 1978 in its application to those paragraphs, is any address (within or outside the United Kingdom) at which OFCOM believe, on reasonable grounds, that the notice will come to the attention of the person or (where that person is an entity) any director or other officer of that entity. 7 In the case of a notice given to a person other than a provider of a designated radio selection service, a person’s proper address for the purposes of paragraphs (b) and (c) of subsection (2) , and section 7 of the Interpretation Act 1978 in its application to those paragraphs, is— a in the case of an entity, the address of the entity’s registered or principal office; b in any other case, the person’s last known address. 8 In the case of an entity registered or carrying on business outside the United Kingdom, or with offices outside the United Kingdom, the reference in subsection (7) to its principal office includes— a its principal office in the United Kingdom, or b if the entity has no office in the United Kingdom, any place in the United Kingdom at which OFCOM believe, on reasonable grounds, that the notice will come to the attention of any director or other officer of that entity. 9 For the purposes of subsection (2) (d) , a person’s email address is— a any email address published for the time being by that person as an address for contacting that person, or b if there is no such published address, any email address by means of which OFCOM believe, on reasonable grounds, that the notice will come to the attention of that person or (where that person is an entity) any director or other officer of that entity. 10 A notice sent by email is treated as given 48 hours after it was sent, unless the contrary is proved. 11 In this section— “ director ” includes any person occupying the position of a director, by whatever name called; “ officer ”, in relation to an entity, includes a director, a manager, a partner, an associate, a secretary or, where the affairs of the entity are managed by its members, a member. Application of Part 3B 362BZ3 1 A duty or prohibition imposed on a provider of a designated radio selection service by or under this Part applies in relation to that service only so far as it is made available for use by members of the public in the United Kingdom. 2 References in this Part to a radio selection service include such a service provided from outside the United Kingdom (as well as such a service provided from within the United Kingdom). 3 The power to require the provision of information by an information notice includes power to require the provision of information held outside the United Kingdom. 4 Section 362BT (4) (requirements enforceable in civil proceedings against a person) applies whether or not the person is in the United Kingdom. Interpretation of Part 3B 362BZ4 1 In this Part— “ ancillary service ”, in relation to an internet radio service, has the meaning given by section 362BF (except in the expression “ relevant ancillary service ”); “ designated radio selection service ” has the meaning given by section 362BB ; “ entity ” means a body or association of persons or an organisation, regardless of whether the body, association or organisation is— formed under the law of any part of the United Kingdom or of a country or territory outside the United Kingdom, or a legal person under the law under which it is formed; “ information notice ” has the meaning given by section 362BQ ; “ internet radio service ” has the meaning given by section 362BF ; “ provide ”, in relation to a sound broadcasting service or digital sound programme service, has the same meaning as in Part 3 (see section 362(2) and (3)); “ radio selection service ” has the meaning given by section 362BA ; “ relevant internet radio service ” has the meaning given by section 362BG . 2 A reference in this Part to the playing of an internet radio service includes a reference to providing its ancillary services (if any). Part 4 Licensing of TV reception Licence required for use of TV receiver 363 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, 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. TV licences 364 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 the Wireless Telegraphy Act 2006 ) 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. TV licence fees 365 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. 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. 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 provided 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 A 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. 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. TV licence fee concessions by reference to age 365A 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. Powers to enforce TV licensing 366 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 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 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. Interpretation of provisions about dealer notification 367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Meanings of “television receiver” and “use” 368 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— 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). PART 4A ON-DEMAND PROGRAMME SERVICES Chapter 1 Introductory Provisions Preliminary Audiovisual programmes 368ZA 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. Meaning of “on-demand programme service” 368A 1 For the purposes of this Act, a service (or a dissociable section of a service) is an “on-demand programme service” if— a its principal purpose is the provision of programmes (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; ... e that person's head office is in the United Kingdom, and f editorial decisions about the service are taken in the United Kingdom. 2 Access to a service (or dissociable section of a service) is on-demand if— a the service (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 (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 (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 (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 (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. Meaning of non-UK on-demand programme service 368AA 1 For the purposes of this Act, a service (or a dissociable section of a service) is a “non-UK on-demand programme service” if— a it meets the conditions in paragraphs (a) to (d) of section 368A(1), b it does not meet one or both of the conditions in paragraphs (e) and (f) of section 368A(1), and c the members of the public for whose use it is made available are or include members of the public in the United Kingdom. 2 Section 368A(5) to (7) applies in relation to a non-UK on-demand programme service as it applies in relation to an on-demand programme service. Overview of Part 4A 368AB 1 This section provides an overview of this Part. 2 This Chapter (Chapter 1) gives the meaning of certain expressions used in this Part. 3 Chapter 2 contains provision for the regulation of on-demand programme services (as defined by section 368A). 4 Chapter 3— a sets out the rules that apply for determining when an on-demand programme service (as defined by section 368A) or a non-UK on-demand programme service (as defined by section 368AA ) is a Tier 1 service, b makes provision for certain sections of Chapter 2 to apply in relation to a non-UK on-demand programme service that is a Tier 1 service in the same way that they apply in relation to an on-demand programme service, and c makes provision for the additional regulation of Tier 1 services (whether on-demand programme services or non-UK on-demand programme services). 5 Chapter 4 makes provision about the enforcement of certain provisions of Chapters 2 and 3. 6 Chapter 5 makes supplementary provision. The appropriate regulatory authority 368B 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). A2 OFCOM is the appropriate regulatory authority for the purposes of sections 368HC , 368HJ and 368HK (and OFCOM may not designate any other body to be the appropriate regulatory authority for 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 subsections (A1) , (A2) 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 , or non-UK on-demand programme services that are Tier 1 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; d is sufficiently independent of providers of on-demand programme services or non-UK 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. 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. Chapter 2 Regulation of on-demand programme services List of providers Maintenance of list of providers 368BZA 1 OFCOM must establish and maintain an up to date list of persons who have— a given a notification to OFCOM under section 368BA(1) of their intention to provide an on-demand programme service, and b not given a further notification under section 368BA(2)(b) of their intention to cease to provide it . 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 OFCOM must publish the up to date list on a publicly accessible part of their website. Notification by providers Advance notification to appropriate regulatory authority 368BA 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. 4 In this section, “significant differences” includes any change that may affect whether or not paragraphs (e) and (f) of section 368A(1) are satisfied. Enforcement of section 368BA 368BB 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. 7 Subsection (6) applies whether or not the provider is in the United Kingdom. ... Accessibility for people with disabilities 368BC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement of regulations under section 368BC 368BD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duties of the appropriate regulatory authority Duties of the appropriate regulatory authority 368C 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 sections 368CB and 368D . 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. 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. 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). 6 The appropriate regulatory authority must draw up and, from time to time, review and revise, guidance setting out their intentions concerning the exercise of their functions under this Part in relation to the prohibition imposed by section 368FA (advertising: less healthy food and drink). 7 The appropriate regulatory authority must consult the Secretary of State before drawing up or revising guidance under subsection (6). Code on accessibility for people with disabilities 368CA . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duties of service providers Quota for European works 368CB 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. 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 as it has effect in EU law as amended from time to time (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 as amended from time to time . Duties of service providers 368D 1 The provider of an on-demand programme service must ensure that the service complies with the requirements of sections 368E(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; ca a statement that P is subject to regulation by the appropriate regulatory authority as a result of section 368A(1)(e) and (f); d the name, address and electronic address of any body which is the appropriate regulatory authority for any purpose in relation to P or the on-demand programme service that P provides. 3 The provider of an on-demand programme service must— 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); 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 60 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 (6) . 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. Harmful material 368E 1 An on-demand programme service must not contain any material likely to incite violence 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 . 2 An on-demand programme service must not contain any prohibited material. 3 “Prohibited material” means— zza material the inclusion of which in an on-demand programme service would be an offence under section 1 of the Terrorism Act 2006 (encouragement of terrorism), za material the inclusion of which in an on-demand programme service is conduct of a kind that, immediately before IP completion day, would have been required by any of the following to be punishable as a criminal offence— i . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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 A 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 ... 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). Advertising 368F 1 Advertising of the following products is prohibited in on-demand programme services— a cigarettes or other tobacco products; aa electronic cigarettes or electronic cigarette refill containers; b any prescription-only medicine. 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 , mental or moral detriment to persons under the age of eighteen; 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. Advertising: less healthy food and drink 368FA 1 From the beginning of 5 January 2026 , on-demand programme services must not, between 5.30 am and 9.00 pm, include advertisements for an identifiable less healthy food or drink product. 2 The prohibition imposed by subsection (1) does not apply in relation to advertisements included in on-demand programme services as a result of arrangements made by or on behalf of a person who is, at the time when the arrangements are made, a food or drink SME. 3 The Secretary of State may by regulations provide for further exemptions from the prohibition imposed by subsection (1). 4 For the purposes of this section— a “ advertisements ” includes advertisements and sponsorship announcements (within the meaning given by section 368G(17)) under a sponsorship agreement; b a product is “ identifiable ”, in relation to advertisements, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product; c a food or drink product is “less healthy” if— i it falls within a description specified in regulations made by the Secretary of State, and ii it is “less healthy” in accordance with the relevant guidance; d “ the relevant guidance ” means the guidance entitled “Nutrient Profiling Technical Guidance” published by the Department of Health on 1 January 2011; e “ food or drink SME ” means a small or medium enterprise, within the meaning given by regulations made by the Secretary of State, of a description specified in the regulations. 5 Regulations under subsection (4)(e) that make provision by reference to the number of members of staff of a person may make provision about who is to count as a member of staff (including members of staff of another person). 6 The Secretary of State may, before the date specified in subsection (1), amend that subsection so as to substitute a later date for the date that is for the time being specified there. 7 The Secretary of State may by regulations amend this section to change the meaning of “the relevant guidance”. 8 Before making regulations under subsection (3) or (7), the Secretary of State must consult such persons as the Secretary of State considers appropriate. 9 A statutory instrument containing regulations under subsection (7) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. Sponsorship 368G 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. 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— 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 , mental or moral detriment to persons under the age of eighteen; 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. 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). Prohibition of product placement and exceptions 368H 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. 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, ... ba it is of electronic cigarettes or electronic cigarette refill containers, ... 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 B to F are met, and b if subsection (14) applies, condition G is also met. 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 , mental or moral detriment to persons under the age of eighteen; 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 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 Subject to subsections (15A), (15B) and (15C) , this section applies only in relation to programmes the production of which begins after 19th December 2009. 15A Subsection (4)(ba) applies only in relation to programmes the production of which begins after 19th May 2016. 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; “programme” does not include an advertisement; “relevant provider”, in relation to a programme, means— the provider of the on-demand programme service in which the programme is included; and 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. Chapter 3 Regulation of Tier 1 services Meaning of Tier 1 service Meaning of Tier 1 service 368HA 1 In this Act, a “ Tier 1 service ” means— a an on-demand programme service that falls within subsection (2) , and b an on-demand programme service, or a non-UK on-demand programme service, that is a Tier 1 service by virtue of regulations under section 368HB . 2 An on-demand programme service falls within this subsection if it is an on-demand programme service that is being used by a public service broadcaster, other than the BBC, to contribute to the fulfilment of its public service remit. 3 In this section, “public service remit”— a in relation to S4C, has the meaning given by section 204A ; b in relation to the provider of a Channel 3 service or Channel 5, has the meaning given by section 265(2); c in relation to the provider of Channel 4, has the meaning given by section 265(3). Power to specify Tier 1 services etc 368HB 1 The Secretary of State may by regulations provide that an on-demand programme service, or a non-UK on-demand programme service, is a Tier 1 service if it is specified, or falls within a description specified, in the regulations. 2 The Secretary of State may make regulations under subsection (1) only if the Secretary of State is satisfied that it is appropriate for the providers of the services specified, or falling within a description specified, in the regulations to be subject to the duties imposed on providers of Tier 1 services. 3 Before making regulations under subsection (1) (but after considering any report prepared by OFCOM under subsection (5) or (6) ), the Secretary of State must publish on a publicly accessible part of an official website of His Majesty’s Government a list of the services, or descriptions, that the Secretary of State proposes to specify in the regulations. 4 Regulations are not to be made under subsection (1) unless the period of five sitting days beginning with the first sitting day after the date on which the requirement in subsection (3) is met in relation to the regulations has expired. 5 Before making the first regulations under subsection (1) , the Secretary of State must— a request OFCOM to prepare a report on the operation of the market in the United Kingdom for on-demand programme services and non-UK on-demand programme services, and b have regard to the contents of that report. 6 Where the Secretary of State is considering whether to make a second or subsequent set of regulations under subsection (1) , the Secretary of State— a may request OFCOM to prepare a further report on the operation of the market in the United Kingdom for on-demand programme services and non-UK on-demand programme services, and b where a request is made, the Secretary of State must have regard to the contents of the report in deciding whether to make the regulations. 7 In preparing a report requested under subsection (5) (a) or (6) (a) , OFCOM must deal with any matters specified by the Secretary of State in the request (as well as any other matters that they consider appropriate). 8 For the purposes of preparing a report requested under subsection (5) (a) or (6) (a) , OFCOM may request any person who appears to be the provider of an on-demand programme service or a non-UK on-demand programme service to provide OFCOM with any information relating to that service that is specified in the request. 9 The power conferred by subsection (8) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings. 10 Information provided in response to a request by OFCOM may be shared by OFCOM with the Secretary of State but may not be further shared (whether by OFCOM or the Secretary of State). 11 A request under subsection (8) may— a specify a period of time within which the information must be provided; b specify the form and manner in which the information must be provided. 12 A person who is requested to provide information under subsection (8) must comply with that request. 13 In this section “ sitting day ” means a day on which both Houses of Parliament sit. Duties relating to notification etc Notification to OFCOM 368HC 1 A person who provides a Tier 1 service must give OFCOM a notification (a “Tier 1 notification”) to that effect. 2 Subsection (3) applies where— a regulations are made under section 368HB (1) , and b a non-UK on-demand programme service is specified or falls within a description specified in the regulations. 3 OFCOM must, for the purpose of assisting with compliance with subsection (1) , inform the provider of that Tier 1 service of that fact. 4 A person who gives a Tier 1 notification must also notify OFCOM if the person ceases to provide a Tier 1 service. 5 A Tier 1 notification or a notification under subsection (4) must— a be sent to OFCOM in such manner as they may require, and b include such information as they may require. Lists of Tier 1 providers 368HD 1 OFCOM must establish and maintain an up to date list of persons who have— a given a Tier 1 notification to OFCOM under section 368HC (1) , and b not given a further notification under section 368HC (4) . 2 The list must include contact details which may be used by members of the public wishing to contact a Tier 1 service. 3 OFCOM must publish the list on a publicly accessible part of their website. Application etc of Chapter 2 to certain Tier 1 services Application etc of Chapter 2 to certain Tier 1 services 368HE 1 Subsection (2) applies where a non-UK on-demand programme service is a Tier 1 service by virtue of regulations under section 368HB . 2 The following provisions of Chapter 2 apply in relation to the Tier 1 service as if any reference in those provisions to an on-demand programme service included a reference to the Tier 1 service— a section 368C, so far as relating to the duties of the appropriate regulatory authority in relation to section 368D; b section 368D (duties of service providers), apart from section 368D(2)(ca); c section 368E (harmful material); d section 368F (advertising); e section 368FA (advertising: less healthy food and drink); f section 368G (sponsorship); g section 368H (prohibition of product placement and exceptions). 3 A duty or prohibition arising by virtue of subsection (2) applies in relation to the Tier 1 service only on and after the end of the grace period that applies in relation to the Tier 1 service. 4 In subsection (3) , “ the grace period ”, in relation to a non-UK on-demand programme service that is a Tier 1 service, means the period of 12 months beginning with the day on which the non-UK on-demand programme service became a Tier 1 service. 5 Where regulations under section 368HB (1) provide that a non-UK on-demand programme service specified in the regulations is a Tier 1 service, the regulations may also provide— a that subsections (1) and (2) do not apply in relation to the service, or b that those subsections apply in relation to the service as if the reference in subsection (4) to 12 months were a reference to such lesser period as may be specified in the regulations. 6 Section 368D(3)(zb) applies in relation to an on-demand programme service that is a Tier 1 service by virtue of section 368HA (1) (a) with the modification that the reference in section 368D(3)(zb) to 60 days is to be read as a reference to 90 days. Standards code for Tier 1 services Standards code for Tier 1 services 368HF 1 OFCOM must prepare and publish a code containing standards set by them for the content of programmes to be included in Tier 1 services. 2 The standards must be such as appear to OFCOM to be best calculated to secure the following objectives (“the standards objectives”)— a that persons under the age of 18 are protected; b that material likely to encourage or incite the commission of crime or to lead to disorder is not included in Tier 1 services; c that news included in those services is presented with due impartiality; d that news included in those services is reported with due accuracy; e that the impartiality requirements described in section 368HG are met; f that generally accepted standards are applied to the contents of those services so as to provide adequate protection for members of the public from the inclusion of offensive and harmful material; g that the proper degree of responsibility is exercised with respect to the content of religious programmes included in those services. 3 The standards included in the code to secure the objective described in subsection (2) (g) must, in particular, contain provision designed to secure that religious programmes do not involve— a any improper exploitation of 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. 4 OFCOM may fulfil their duty to publish the code in such ways as OFCOM consider likely to bring the code to the attention of persons who are likely to be affected by it. 5 OFCOM— a must keep the code under review, b may from time to time revise the code, and c where they do so, must publish the code as revised. 6 References in this Part to a code under this section are to be read, in relation to times after a revised code is published, as references to the code as revised. 7 In this section— “ news ” means news in whatever form it is included in a service; “ programme ” does not include an advertisement. Tier 1 standards code: special impartiality requirements 368HG 1 The impartiality requirements referred to in section 368HF (2) (e) are— a the exclusion from programmes included in any Tier 1 services of all expressions of the views or opinions of the person providing that service on— i matters of political or industrial controversy, or ii matters relating to current public policy; b the preservation of due impartiality on the part of the person providing the service as respects those matters. 2 Subsection (1) (a) does not require the exclusion of expressions of views or opinions relating to the provision of on-demand programme services or non-UK on-demand programme services. 3 A code under section 368HF must make provision about the application of the requirement in subsection (1) (b) , including provision about the ways in which the requirement may be met. Tier 1 standards code: matters to be taken into account 368HH 1 In preparing or revising a code under section 368HF , OFCOM must, in particular and to such extent as appears to them to be relevant to securing the standards objectives, have regard to each of the matters set out in subsection (2) . 2 Those matters are— a the likely expectation of potential audiences as to the nature of the content of programmes included in particular Tier 1 services; b the degree of harm or offence likely to be caused by the inclusion of any particular sort of content, whether in programmes generally or in particular kinds of programmes; c the age of the content of particular programmes or particular kinds of programmes included in Tier 1 services; d the extent to which, and the ways in which, information about the nature of the content of particular kinds of programmes or of particular programmes can be given in a way that enables individuals to make choices about whether they (or others for whom they have responsibility) view or continue to view that content; e the likely effect of consideration being required in order to view a particular Tier 1 service or particular programmes included in a Tier 1 service; f the length of time for which particular programmes are included in Tier 1 services; g the desirability of maintaining the independence of editorial control over programme content. 3 In preparing or revising a code under section 368HF , 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. 4 The Secretary of State may by regulations amend the list of matters in subsection (2) . 5 Before making regulations under subsection (4) , the Secretary of State must consult OFCOM. 6 A statutory instrument containing regulations under subsection (4) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. Tier 1 standards code: procedural requirements 368HI 1 Before publishing a code under section 368HF , OFCOM must consult— a persons appearing to OFCOM to represent the interests of potential audiences of Tier 1 services; b such persons providing on-demand programme services or non-UK on-demand programme services as OFCOM think fit; and c such other persons as appear to OFCOM to have an interest in the content of the code. 2 For the purposes of the consultation, OFCOM must publish a draft of the code. 3 After considering any views expressed by those persons, OFCOM may— a publish the code in the terms of the draft published for the purposes of the consultation, or b modify the draft and publish the code in the terms of the draft as modified. 4 Subsections (1) to (3) apply to a revision of a code under section 368HF as they apply to a code. Duties of Tier 1 providers as regards Tier 1 standards code Duties of Tier 1 providers to comply with Tier 1 standards code 368HJ 1 A person who provides a Tier 1 service must observe the code for the time being published under section 368HF . 2 The duty under subsection (1) applies only on and after the end of the grace period that applies in relation to the service. 3 In subsection (2) , “ the grace period ”, in relation to a Tier 1 service, means the period of 12 months beginning with whichever is the later of the following— a the day on which the on-demand programme service, or non-UK on-demand programme service, became a Tier 1 service; b the day when the first code under section 368HF was published. 4 Where regulations under section 368HB (1) provide that an on-demand programme service, or a non-UK on-demand programme service, specified in the regulations is a Tier 1 service, the regulations may also provide— a that subsections (2) and (3) do not apply in relation to the service, or b that those subsections apply in relation to the service as if the reference in subsection (3) to 12 months were a reference to such lesser period as may be specified in the regulations. Complaints relating to Tier 1 standards code Complaints relating to Tier 1 standards code 368HK 1 OFCOM must establish and maintain procedures for the handling and resolution of complaints that a person who provides a Tier 1 service is failing, or has failed, to comply with section 368HJ (1) . 2 A person who provides a Tier 1 service must establish and maintain procedures for the handling and resolution of complaints that the person is failing, or has failed, to comply with section 368HJ (1) . Accessibility code for Tier 1 services Accessibility code for Tier 1 services 368HL 1 OFCOM must prepare and publish a code imposing requirements on providers of Tier 1 services for the purpose of ensuring that such services are accessible to people with disabilities, including, in particular, people with disabilities affecting their sight or hearing, or both. 2 The code must include provision requiring providers of Tier 1 services to report annually to OFCOM about— a the accessibility of their services to people with disabilities; b the steps taken to secure the quality and usability of the means by which their services are made accessible to people with disabilities. 3 The code must include provision requiring every provider of a Tier 1 service to ensure 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. 4 The code must include provision requiring the provider of a Tier 1 service, from the second anniversary of the relevant date, to secure that, in the 12 month period beginning with that second anniversary and in the succeeding 12 month period— a at least 40 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by subtitling; b at least 5 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by audio-description for the blind; and c at least 2.5 per cent of the total catalogue hours of that service for that period consists of programmes that are presented in, or translated into, sign language. 5 The code must include provision requiring the provider of a Tier 1 service, from the fourth anniversary of the relevant date, to secure that, in the 12 month period beginning with the fourth anniversary and in each succeeding 12 month period— a at least 80 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by subtitling; b at least 10 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by audio-description for the blind; and c at least 5 per cent of the total catalogue hours of that service for that period consists of programmes that are presented in, or translated into, sign language. 6 A reference in any paragraph of subsections (4) and (5) to the total catalogue hours of a Tier 1 service for a period of time is a reference to the combined duration of the programmes available from the service within that period, other than those programmes excluded under subsection (7) in relation to the requirement in that paragraph. 7 The code must set out, in relation to each of the paragraphs of subsections (4) and (5) , the descriptions of programmes that are excluded for the purposes of the requirement in that paragraph. This subsection does not restrict the provision which may be made under subsection (8) . 8 The code may include provision under which Tier 1 services specified in the code are wholly or partly exempted from some or all of the requirements set out in subsections (4) and (5) . 9 Provision in the code partly exempting a Tier 1 service may, in particular, provide for the exemption to apply in relation to particular methods, or particular descriptions of method, by which that service is available to members of the public. 10 Before including in the code such provision as is described in subsection (7) or (8) in relation to a Tier 1 service, OFCOM must have regard, in particular, to— a the extent of the benefit which would be conferred if the provider of the service were to comply with the requirements set out in subsections (4) and (5) ; b the size of the audience for the service; c the number of persons who would be likely to benefit from compliance with those requirements and the extent of the likely benefit for each of those persons; d the extent to which persons accessing the service are resident in places outside the United Kingdom; e the technical difficulty of compliance with those requirements; and f the cost, in the context of the matters mentioned in paragraphs (a) to (e) , of compliance with those requirements. 11 The requirements that may be imposed by the code include, in particular— a requirements as to lesser levels of assistance that apply before the date on which the requirements set out in subsection (4) or (5) fall to be complied with; b requirements as to the provision of assistance for disabled people, or a description of disabled people, in the case of a Tier 1 service that is exempted or partly exempted. 12 The code must also give guidance as to— a the extent to which Tier 1 services should promote the understanding and enjoyment by people with disabilities (in particular, people with disabilities affecting their sight or hearing, or both) of the programmes to be included in Tier 1 services; and b the means by which such understanding and enjoyment should be promoted. 13 OFCOM— a must keep the code under review, b may from time to time revise the code, and c where they do so, must publish the code as revised. 14 OFCOM must publish the code, and every revision of it, in such manner as they consider appropriate, having regard to the need to make the code or revision accessible to people with disabilities, including, in particular, people with disabilities affecting their sight or hearing, or both. 15 References in this Part to a code under this section are to be read, in relation to times after a revised code is published, as references to the code as revised. 16 In this section, “ programme ” does not include an advertisement. Meaning of “relevant date” 368HM 1 The relevant date, in relation to a Tier 1 service, is the later of— a the day on which the on-demand programme service, or non-UK on-demand programme service, became a Tier 1 service, and b the day on which the first code under section 368HL was published. 2 OFCOM may determine that a service provided by a person is to be treated for the purposes of section 368HL and this section as a continuation of a service previously provided by that person. Power to modify requirements in section 368HL 368HN 1 Where it appears to the Secretary of State, in the case of Tier 1 services of a particular description, that the requirement specified in any paragraph of section 368HL (4) has been or is likely to be fulfilled in their case before the anniversary specified in section 368HL (4) , the Secretary of State may by regulations modify section 368HL 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 the first anniversary for the anniversary specified in section 368HL (4) in the case of services of that description. 2 The Secretary of State may by regulations modify section 368HL so as to do one or both of the following— a substitute a later anniversary for the anniversary specified in section 368HL (5) ; b substitute a higher percentage for the percentage for the time being specified in any paragraph of section 368HL (5) . 3 The provision that may be made by regulations under this section includes— a modifications for requiring the code to set out additional requirements to be fulfilled once the requirements previously required to be set out in the code have been fulfilled; and b savings for the requirements previously set out in the code. 4 Before making regulations under this section the Secretary of State must consult OFCOM. 5 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. Tier 1 accessibility code: procedural requirements 368HO 1 Before publishing a code or a revised code under section 368HL , OFCOM must consult— a such persons appearing to OFCOM to represent the interests of people with disabilities as OFCOM think fit; b such persons providing on-demand programme services or non-UK on-demand programme services as OFCOM think fit; and c such other persons as appear to OFCOM to have an interest in the content of the code. 2 For the purposes of the consultation, OFCOM must publish a draft of the code. Duty to comply with Tier 1 accessibility code 368HP A provider of a Tier 1 service must comply with such of the requirements of the code under section 368HL as apply to that provider. Reports to Secretary of State Reports to Secretary of State 368HQ OFCOM may from time to time report to the Secretary of State on any issues which— a have been identified by them in the course of carrying out their functions in relation to Tier 1 services, and b appear to them to raise questions of general policy about the regulation of those services. Application of Chapter 3 Application of Chapter 3 368HR The duties of providers of Tier 1 services under or by virtue of this Chapter apply in relation to those services only so far as they are made available for use by members of the public in the United Kingdom. Chapter 4 Enforcement: general Enforcement of service providers’ principal duties 368I 1 Where the appropriate regulatory authority determine that a provider of an on-demand programme service is contravening or has contravened section 368CB or section 368D , or that a provider of a non-UK on-demand programme service that is a Tier 1 service is contravening or has contravened 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. 1A Where OFCOM (as the appropriate regulatory authority) determine that a provider of a Tier 1 service is contravening or has contravened section 368HC, 368HJ(1), 368HK(2) or 368HP, they may do one or both of the following— a give the provider an enforcement notice 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) or (1A) unless there are reasonable grounds for believing that a contravention of section 368CB or section 368D or (as the case may be) section 368HC , 368HJ (1) , 368HK (2) or 368HP 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) or (1A) and imposes requirements on the provider to take such steps for complying with section 368CB or section 368D or (as the case may be) section 368HC , 368HJ (1) , 368HK (2) or 368HP 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 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 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. 8A Subsection (8) applies whether or not the provider is in the United Kingdom. 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. 10 A financial penalty may not be imposed on a provider of an on-demand programme service , or a non-UK on-demand programme service that is a Tier 1 service, under subsection (1) , (1A) 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. Enforcement of section 368E(4) 368IA 1 Where the appropriate regulatory authority determine that a provider of an on-demand programme service , or a non-UK on-demand programme service that is a Tier 1 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; 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. 8A Subsection (8) applies whether or not the person is in the United Kingdom. 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. Financial penalties Financial penalties 368J 1 The amount of a penalty imposed on a provider under section 368BB ... , 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 or failure in respect of which it is imposed. 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) or (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 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 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. Suspension or restriction of service Suspension or restriction of service for contraventions or failures 368K 1 The appropriate regulatory authority must serve a notice under subsection (2) on a provider of an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service if they are satisfied— a that the provider is in contravention of section 368BA , 368CB or 368D ... , 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 ; b that the imposition of one or more financial penalties or enforcement notifications under section 368BB ..., 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 or failure . 1A OFCOM (as the appropriate regulatory authority) must serve a notice under subsection (2) on a provider of a Tier 1 service if they are satisfied— a that the provider is in contravention of section 368HC , 368HJ (1) , 368HK (2) or 368HP , b that the imposition of one or more financial penalties or enforcement notifications under section 368I has not resulted in the remedying of the contravention, and c that the giving of a direction under this section would be appropriate and proportionate to the seriousness of the contravention. 2 A notice under this subsection must— a state that the appropriate regulatory authority are satisfied as mentioned in subsection (1) or (1A) ; b state the reasons why they are satisfied as mentioned in subsection (1) or (1A) ; 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 or failure within subsection (1)(a) or (1A)(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 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) or (1A)(c) — a a direction that the entitlement of the provider to provide an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 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. Suspension or restriction of service for inciting crime or disorder 368L 1 The appropriate regulatory authority must serve a notice under subsection (2) on a provider of an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service if they are satisfied— 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 , 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 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 or a non-UK on-demand programme service that is a Tier 1 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 an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 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. Supplementary provision about directions 368M 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 , or to any non-UK on-demand programme service that is a Tier 1 service, provided or to be provided by the provider. 2A A direction has effect in relation to a non-UK on-demand programme service that is a Tier 1 service only so far as the service is made available for use by members of the public in the United Kingdom. 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. 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. Enforcement of directions under section 368K or 368L 368N 1 A person (“P”) is guilty of an offence if P provides an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 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. Chapter 5 Supplementary Fees Fees 368NA 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 or a non-UK on-demand programme service that is a Tier 1 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 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. 8A The authority may also repay some or all of a fee paid to them by a person under subsection (2) if— a the person has ceased to provide a Tier 1 service at some time during the period to which the fee relates, b the Tier 1 service in question was a non-UK on-demand programme service, c the person gave a notification under section 368HC(4) that the person had ceased to provide the Tier 1 service, and d the person did not cease to provide the Tier 1 service following a direction given by the appropriate regulatory authority under section 368K or 368L. 8B The authority may repay some of a fee paid to them by a person under subsection (2) if— a the person has ceased to provide a Tier 1 service at some time during the period to which the fee relates, b the Tier 1 service in question was an on-demand programme service that the person continues to provide, and c the person gave a notification under section 368HC (4) that the person had ceased to provide the Tier 1 service. 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. Information Power to require information 368O 1 The appropriate regulatory authority may by notice require a person within subsection (5) to provide them with any information that they require for the purpose of carrying out their functions under this Part. 2 OFCOM may by notice require a person within subsection (5) to provide them with any information that they require for the purpose of carrying out their functions under Part 5 of the 1996 Act, so far as relating to Tier 1 services. 3 The power conferred by subsection (1) or (2) includes power to require a person within subsection (5) to obtain or generate information. 4 The power conferred by subsection (1) or (2) must be exercised in a way that is proportionate to the use to which the information is to be put by OFCOM. 5 The persons within this subsection are— a a provider of an on-demand programme service or a non-UK on-demand programme service; b a person who was a provider of an on-demand programme service or a non-UK on-demand programme service at a time to which the required information relates; c a person who is not within paragraph (a) or (b) but who appears to the appropriate regulatory authority to have, or to be able to obtain or generate, information required by them as mentioned in subsection (1) . 6 The information that the appropriate regulatory authority may require under subsection (1) includes, in particular, information that they require for any one or more of the following purposes— a the purpose of determining whether a person is a provider of an on-demand programme service or a non-UK on-demand programme service; b the purpose of determining whether a person is a provider of a Tier 1 service; c the purpose of determining whether there has been any change of circumstances that may affect a determination mentioned in paragraph (a) or (b) ; d the purpose of assessing compliance with any duty imposed on a provider of an on-demand programme service by or by virtue of Chapter 2; e the purpose of assessing compliance with any duty imposed on a provider of a Tier 1 service by or by virtue of Chapter 3; f the purpose of an investigation being carried out by the authority to determine whether a contravention of section 368BA, 368CB or 368D has occurred or is occurring; g the purpose of an investigation being carried out by the authority to determine whether there has been a failure to take an appropriate measure for the purpose mentioned in section 368E(4) or a failure to implement such a measure effectively; h the purpose of an investigation being carried out by the authority to determine whether a contravention of section 368HC , 368HJ (1) , 368HK (2) or 368HP has occurred or is occurring; i the purpose of ascertaining or calculating applicable qualifying revenue under section 368J; j the purpose of determining the appropriate fee that a provider is required to pay under section 368NA. 7 A notice under subsection (1) or (2) (an “information notice”) must— a specify or describe the information to be provided, b specify why the information is required, c specify the form and manner in which the information must be provided, and d contain information about the consequences of not complying with the notice. 8 An information notice must specify when the information must be provided which may be— a on or by a specified date, or b within a specified period. 9 The power conferred by subsection (1) or (2) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings. 10 A person to whom an information notice is given must provide the information in accordance with any requirements included in the notice (subject to subsection (11) ). 11 The duty under subsection (10) does not require a disclosure of information if that disclosure would contravene the data protection legislation (but, in determining whether a disclosure would do so, that duty is to be taken into account). 12 In this section— “ data protection legislation ” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act); “ information ” includes technical information and material such as videos, audiovisual commercial communications, screenshots and archived material. Information powers: supplementary 368OZA 1 Any power to require the provision of information under section 368HB , 368O or 368OB includes power to require the provision of information held outside the United Kingdom. 2 In the following provisions of this section, a “ Part 4A information duty ” means— a the duty under section 368HB (12) ; b the duty under section 368O (10) ; c the duty under section 368OB (9) . 3 Sections 368I and 368K apply in relation to a failure by a provider of an on-demand programme service, or a non-UK on-demand programme service that is a Tier 1 service, to comply with a Part 4A information duty as if that failure were a contravention of section 368D. 4 Section 368I applies in relation to a failure by a person other than one described in subsection (3) to comply with a Part 4A information duty falling within subsection (2)(a) or (b) as if that failure were a contravention of section 368D. 5 Where section 368I applies in accordance with subsection (4) — a references in section 368I or 368J to a provider of an on-demand programme service are to be read as references to the person who has failed to comply with the Part 4A information duty, and b section 368J(1) applies as if, for the words “5 per cent. of the provider’s applicable qualifying revenue or £250,000, whichever is the greater amount”, there were substituted “£250,000” . Co-operation with EEA States 368OA OFCOM may co-operate with EEA States which are subject to the Audiovisual Media Services Directive, and with the national regulatory authorities of such EEA states, for the following purposes— a facilitating the carrying out by OFCOM of any of their functions under this Part, or b facilitating the carrying out by the national regulatory authorities of the EEA states of any of their functions in relation to on-demand programme services under the Directive as it has effect in EU law as amended from time to time. Audience protection reviews etc Audience protection reviews etc 368OB 1 As soon as practicable after this section comes into force, OFCOM must carry out a review of audience protection measures in use by providers of— a on-demand programme services, or b non-UK on-demand programme services that are Tier 1 services. 2 The scope of that review is to consider whether the audience protection measures are adequate for the purpose of assisting the providers to comply with the duties imposed on them by or under this Act for the protection of audiences from harm. 3 After the review under subsection (1) , OFCOM may carry out further reviews for the same purpose at such times as appear appropriate to OFCOM. 4 “Audience protection measures” are measures that are capable of assisting in protecting audiences from harm, the following being examples— a age rating or other classification systems; b content warnings; c parental controls; d age assurance measures. 5 OFCOM may request any provider described in subsection (1) to provide OFCOM with information about its audience protection measures for the purposes of a review under subsection (1) or (3) . 6 OFCOM may also request any provider described in subsection (1) to provide OFCOM with information about its audience protection measures where, in consequence of a review or anything else done in the exercise of their functions, they are concerned that the measures in use by that provider are or might be inadequate. 7 A request under subsection (5) or (6) must specify or describe the information to be provided and may also— a specify a period of time within which the information must be provided; b specify the form and manner in which the information must be provided. 8 A request under subsection (6) may specify that information is to be provided at intervals specified by OFCOM. 9 A provider described in subsection (1) must comply with a request under subsection (5) or (6) . 10 OFCOM may publish any information provided to them under this section. Application and interpretation of Part 4A Application of Part 4A in relation to the BBC 368P A1 Section 368BA (advance notification) does not apply in relation to an on-demand programme service provided or to be provided by the BBC. 1 The following provisions do not apply to the BBC — a section 368D(3)(za) and (zb) (duties of providers of on-demand programme services); 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 368C(4) (codes of conduct: food and beverage promotion and children’s programmes) ; b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e section 368K (suspension or restriction of service for contraventions); f section 368L (suspension or restriction of service for inciting crime or disorder); g . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Paragraph 2(2)(b) of Schedule 12 includes provision imposing obligations on the BBC in relation to on-demand programme services. Application of Part 4A in relation to the Welsh Authority 368Q . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Service of notices by OFCOM 368QA Section 362AZ10 (notices) applies in relation to a notice that may or must be given by OFCOM under any provision of this Part as it applies in relation to a notice that may or must be given by them under any provision of Part 3A. Interpretation of Part 4A 368R 1 In this Part— “appropriate regulatory authority” is to be construed in accordance with 368B; “children’s programme” means a programme made— for a television programme service or for an on-demand programme service or a non-UK on-demand programme service that is a Tier 1 service , and for viewing primarily by persons under the age of sixteen; “electronic cigarette” means a product that— 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 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— contains a nicotine-containing liquid, which can be used to refill an electronic cigarette, and 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; “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 or a non-UK on-demand programme service that is a Tier 1 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 or a non-UK on-demand programme service that is a Tier 1 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 or a non-UK 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— 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 S4C does not include its provision by an S4C company; and, accordingly, control that is or is capable of being exercised by the BBC or S4C 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. PART 4B VIDEO-SHARING PLATFORM SERVICES Preliminary Meaning of “video-sharing platform service” 368S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The appropriate regulatory authority 368T . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . List of providers Maintenance of list of providers 368U . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Notification by providers Advance notification to appropriate regulatory authority 368V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement of section 368V 368W . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duties of the appropriate regulatory authority Duties of the appropriate regulatory authority 368X . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duties of service providers Duties of service providers 368Y . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Advertising etc controlled by service providers 368Z . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Duty to take appropriate measures 368Z1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement Enforcement of sections 368Y and 368Z1(6) and (7) 368Z2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement of section 368Z1(1) and (2) 368Z3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Financial penalties 368Z4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suspension or restriction of service Suspension or restriction of service for contraventions or failures 368Z5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Suspension or restriction of service for inciting crime or disorder 368Z6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Supplementary provision about directions 368Z7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Enforcement of directions under section 368Z5 or 368Z6 368Z8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Fees Fees 368Z9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Information and reports Power to demand information 368Z10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Reports by OFCOM 368Z11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Co-operation with EEA States 368Z12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Interpretation of Part 4B Interpretation of Part 4B 368Z13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . PART 4C Online advertising of less healthy food and drink Advertising of less healthy food and drink Prohibition of paid-for advertising of less healthy food and drink 368Z14 1 From the beginning of 5 January 2026 , a person must not pay for advertisements for an identifiable less healthy food or drink product to be placed on the internet. 2 Subsection (1) does not apply where the person paying is, at the time when the payment is made, a food or drink SME. 3 Subsection (1) does not apply— a in relation to advertisements which are directed solely at persons who are engaged in, or employed by, a business which involves or is associated with the manufacture or sale of food or drink, b in relation to advertisements included in on-demand programme services or in non-UK on-demand programme services that are Tier 1 services (as to which, see sections 368FA and 368HE(2)(e) ), c in relation to advertisements included in services connected to regulated radio services, or d in relation to advertisements which are not intended to be accessed principally by persons in any part of the United Kingdom. 4 The Secretary of State may by regulations provide for further exemptions from the prohibition imposed by subsection (1). 5 For the purposes of this section— a paying includes providing any consideration (monetary or non-monetary); b “ placed ” includes continues to be placed; c paying for advertisements to be placed on the internet includes paying under a sponsorship agreement as result of which advertisements are placed on the internet; d a product is “ identifiable ”, in relation to advertisements, if persons in the United Kingdom (or any part of the United Kingdom) could reasonably be expected to be able to identify the advertisements as being for that product; e a food or drink product is “less healthy” if— i it falls within a description specified in regulations made by the Secretary of State, and ii it is “less healthy” in accordance with the relevant guidance; f “the relevant guidance” is the guidance entitled “Nutrient Profiling Technical Guidance” published by the Department of Health on 1 January 2011; g “ food or drink SME ” means a small or medium enterprise, within the meaning given by regulations made by the Secretary of State, of a description specified in the regulations; h “ services connected to regulated radio services ” has the meaning given by regulations made by the Secretary of State. 6 Regulations under subsection (5)(g) that make provision by reference to the number of members of staff of a person may make provision about who is to count as a member of staff (including members of staff of another person). 7 The Secretary of State may, before the date specified in subsection (1)— a amend that subsection so as to substitute a later date for the date that is for the time being specified there, and b make corresponding amendments to the references to that date in subsections (11) and (12). 8 The Secretary of State may by regulations amend this section to change the meaning of “the relevant guidance”. 9 Before making regulations under subsection (4) or (8), the Secretary of State must consult such persons as the Secretary of State considers appropriate. 10 A statutory instrument containing regulations under subsection (8) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. 11 A person is to be treated as having contravened subsection (1) if— a at any time on or after 1 August 2021 but before 5 January 2026 , the person made a payment for advertisements to be placed on the internet on or after 5 January 2026 , and b if the payment had been made on 5 January 2026 , the person would have contravened subsection (1). 12 Subsection (11) does not apply if the person— a has put in place arrangements to ensure that they are entitled to require that the advertisements are not placed on the internet on or after 5 January 2026 , and b uses all reasonable endeavours to ensure that the advertisements are not so placed. Enforcement 368Z15 1 Where the appropriate regulatory authority determine that a person is contravening or has contravened section 368Z14 they may do one or both of the following— a give the person an enforcement notification; b impose a financial penalty on the person in accordance with section 368Z16. 2 The appropriate regulatory authority must not make a determination as mentioned in subsection (1) unless— a there are reasonable grounds for believing that a contravention of section 368Z14 is occurring or has occurred, and b they have allowed the person an opportunity to make representations about that apparent contravention. 3 An enforcement notification is a notification which— a specifies the determination made as mentioned in subsection (1), b imposes requirements on the person to take such steps for complying with section 368Z14 and for remedying the consequences of the contravention as may be specified in the notification, c fixes a reasonable period for the taking of those steps, and d sets out the reasons for the appropriate regulatory authority’s decision to give the enforcement notification. 4 The requirements specified in an enforcement notification may include requirements to do one or more of the following— a instruct or request specified persons to remove specified advertisements from the internet; b arrange for specified advertisements to be modified in specified ways. 5 A person to whom an enforcement notification is given must comply with it. 6 The duty under subsection (5) 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 person to whom an enforcement notification has been given does not comply with it, the appropriate regulatory authority may impose a financial penalty on that person in accordance with section 368Z16. Financial penalties 368Z16 1 The amount of a penalty imposed on a person under section 368Z15 is to be such amount not exceeding the maximum penalty as the appropriate regulatory authority determine to be— a appropriate, and b proportionate to the contravention in respect of which it is imposed. 2 The maximum penalty is— a in a case in which the person carries on a relevant business, an amount not exceeding the greater of— i 5% of the turnover of the person’s relevant business for the relevant period, and ii £250,000; b in any other case, £250,000. 3 For the purposes of this section— a a person’s “relevant business” is so much of any business carried on by the person as involves or is associated with the manufacture or sale of less healthy food or drink products; b “ relevant period ”, in relation to a person’s relevant business, means— i except in a case falling within sub-paragraph (ii) or (iii), the period of one year ending with the 31 March before the time at which the penalty is imposed; ii in the case of a person who at the time at which the penalty is imposed has been carrying on that business for a period of less than a year, the period, ending with that time, during which the person has been carrying it on; iii in the case of a person who at the time at which the penalty is imposed has ceased to carry on that business, the period of one year ending with the time when the person ceased to carry it on; c the amount of the turnover of a person’s relevant business for the relevant period is to be calculated by the appropriate regulatory authority in accordance with the following sub-paragraphs— i the amount is to be calculated in conformity with accounting practices and principles which are generally accepted in the United Kingdom; ii the amount is limited to the amounts derived by the person from the relevant business after deduction of sales rebates, value added tax and other taxes directly related to turnover; iii where the person’s relevant business consists of two or more undertakings that each prepare accounts, the amount is to be calculated by adding together the turnover of each, save that no account is to be taken of any turnover resulting from the supply of goods or the provision of services between them. 4 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). 5 A financial penalty imposed under this section, 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. 6 Where a financial penalty is imposed under this section in respect of matters appearing to OFCOM to have a connection with Northern Ireland and no connection with the rest of the United Kingdom, the penalty must be paid into the Consolidated Fund of Northern Ireland. 7 In any other case, a financial penalty imposed under this section is to be paid into the Consolidated Fund of the United Kingdom. Power to demand information 368Z17 1 The appropriate regulatory authority may give a person a notice demanding information that the authority require for the purpose of carrying out their functions under this Part. 2 The notice may relate to any information that the person appears to have or be able to generate. 3 A notice under this section must— a describe the required information, b fix a reasonable period within which the information is to be provided, and c set out the appropriate regulatory authority’s reasons for requiring it. 4 A notice under this section may specify the manner in which the information is to be provided. 5 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. 6 Section 368Z15 applies in relation to a failure to comply with a demand for information imposed under this section as if that failure were a contravention of section 368Z14. 7 In this section “ information ” includes copies of advertisements. Guidance 368Z18 1 The appropriate regulatory authority must draw up and, from time to time, review and revise, guidance setting out their intentions concerning the exercise of their functions under this Part. 2 The appropriate regulatory authority must consult the Secretary of State before drawing up or revising the guidance. 3 The appropriate regulatory authority must publish the guidance and any 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. The appropriate regulatory authority 368Z19 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 (including financial 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 advertisements 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; 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 (taking into account any financial assistance that OFCOM intends to provide under subsection (4)), d is sufficiently independent of persons who carry on business that involves or is associated with the manufacture or sale of less healthy food or drink products, 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 provide 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 provide information to OFCOM for use by OFCOM in connection with any of their functions under this Part; c OFCOM may provide information to a designated body for use by that body in connection with any of its functions 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. Power to amend this Part to extend prohibition 368Z20 1 The Secretary of State may by regulations amend this Part for the purpose of prohibiting persons from doing either or both of the following (so far as not already prohibited)— a placing on the internet advertisements for an identifiable less healthy food or drink product; b making arrangements for advertisements for an identifiable less healthy food or drink product to be placed on the internet. 2 For the purposes of subsection (1)— a “ placing ” includes leaving in place; b “ placed ” includes continues to be placed. 3 The provision which may be made by regulations under subsection (1) by virtue of section 402(3)(c) includes provision repealing, revoking or amending provision made by or under any of the following whenever passed or made— a an Act; b an Act of the Scottish Parliament; c a Measure or Act of Senedd Cymru; d Northern Ireland legislation. 4 Before making regulations under subsection (1), the Secretary of State must consult such persons as the Secretary of State considers appropriate. 5 A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament. Interpretation 368Z21 In this Part— “ appropriate regulatory authority ” is to be construed in accordance with section 368Z19; “ less healthy ”, in relation to a food or drink product, has the meaning given by section 368Z14(5)(e). Part 5 Competition in communications markets Chapter 1 Functions of OFCOM under competition legislation Matters in relation to which OFCOM have competition functions 369 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— 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. 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. OFCOM’s functions under Part 4 of the Enterprise Act 2002 370 1 The functions to which subsection (2) applies shall be concurrent functions of OFCOM and the Competition and Markets Authority (referred to in this Part as “the CMA ”) . 2 This subsection applies to the functions of the CMA under Part 4 of the Enterprise Act 2002 (market investigations) (other than sections 166 , 167C , 171 and 174E ) so far as those 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 (1) and (2)— a references in Part 4 of the Enterprise Act 2002 to the CMA (including references in provisions of that Act applied by that Part) shall be construed as including references to OFCOM (except in sections 166 , 167C , 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. 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 subsections (2) and (3A) the references to activities connected with communications matters, so far as they are references to activities connected with any apparatus falling within paragraph (d) of section 369(1), include 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 CMA 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 CMA 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 a CMA group in carrying out an investigation on a market investigation reference made by OFCOM (under section 131 of the Enterprise Act 2002) by virtue of subsection (1), to give to the group — 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 group for that purpose, or ii is information which, in OFCOM’s opinion, it would be appropriate for that purpose to give to the group without any such request; and b any other assistance which the group may require, and which it is within OFCOM’s power to give, in relation to any such matters, and the group , for the purposes of carrying out any such investigation, shall take into account any information given to it for that purpose under this subsection. 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 CMA . 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Subject to subsection (12), section 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 section 3(1) to (4) of this Act or section 29 of the Postal Services Act 2011 if it is a matter to which the CMA is entitled to have regard in the carrying out of those functions. 13 In making any decision, or otherwise taking action, for the purposes of any of its functions that, by virtue of this section, are functions exercisable concurrently with the CMA, OFCOM must have regard to the need for making a decision, or taking action, as soon as reasonably practicable. OFCOM’s functions under the Competition Act 1998 371 1 The functions to which subsection (2) applies shall be concurrent functions of OFCOM and the CMA . 2 This subsection applies to the functions of the CMA under the provisions of Part 1 of the Competition Act 1998 (other than sections 31D(1) to (6) , 35C , 38(1) to (6) , 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, or c transferred EU anti-trust commitments or transferred EU anti-trust directions (as defined in section 40ZA of that Act), 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 CMA in Part 1 of the Competition Act 1998 (including references in provisions of the Enterprise Act 2002 applied by that Part) are to be read as including references to OFCOM, except— a in sections 31D(1) to (6) , 35C , 38(1) to (6) , 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 CMA 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 CMA , the functions of the CMA 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 CMA . 11 Subject to subsection (12), section 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 section 3(1) to (4) of this Act or section 29 of the Postal Services Act 2011 if it is a matter to which the CMA is entitled to have regard in the carrying out of those functions. 13 In making any decision, or otherwise taking action, for the purposes of any of its functions that— a by virtue of this section, are functions exercisable concurrently with the CMA, and b are functions within Schedule 4A to the Enterprise and Regulatory Reform Act 2013 by virtue of paragraph 5 of that Schedule, OFCOM must have regard to the need for making a decision, or taking action, as soon as reasonably practicable. Application of the Competition Act 1998 to news provision 372 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 Repeal of existing newspaper merger regime 373 Sections 57 to 62 of the Fair Trading Act 1973 (c. 41) (newspaper merger references) shall cease to have effect. Repeal of exclusion for newspaper mergers from general merger controls 374 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 Media public interest considerations 375 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— Construction of consideration specified in section 58(2C) 58A 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 . Adaptation of role of OFT in initial investigations and reports 376 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). Additional investigation and report by OFCOM 377 After section 44 of the Enterprise Act 2002 (investigation and report by OFT in public interest cases) there shall be inserted— Additional investigation and report by OFCOM: media mergers 44A 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 Extension of special public interest regime for certain media mergers 378 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— Construction of conditions in section 59(3C) and (3D) 59A 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— 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. Adaptation of role of OFT in special public interest regime 379 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. Additional investigation and report by OFCOM: special public interest cases 380 After section 61 of the Enterprise Act 2002 (initial investigation and report by OFT in special public interest cases) there shall be inserted— Additional investigation and report by OFCOM: certain media mergers 61A 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. New general functions in relation to media mergers Public consultation in relation to media mergers 381 After section 104 of the Enterprise Act 2002 (c. 40) there shall be inserted— Public consultation in relation to media mergers 104A 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 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. General information duties in relation to media mergers 382 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 ” . 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). Advice and information in relation to media mergers 383 After section 106 of the Enterprise Act 2002 (c. 40) there shall be inserted— Advice and information in relation to media mergers 106A 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. 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. General advisory functions of OFCOM in relation to media mergers 384 After section 106A of the Enterprise Act 2002 there shall be inserted— General advisory functions of OFCOM 106B 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. Other general functions of OFCOM in relation to media mergers 385 After section 119 of the Enterprise Act 2002 (c. 40) there shall be inserted— Further provision about media mergers Other general functions of OFCOM in relation to this Part 119A 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. Monitoring role for OFT in relation to media mergers 386 After section 119A of the Enterprise Act 2002 there shall be inserted— Monitoring role for OFT in relation to media mergers 119B 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). Supplemental provisions of Chapter 2 Enforcement powers in relation to newspaper and other media mergers 387 In Schedule 8 to the Enterprise Act 2002 (provision that may be contained in certain enforcement orders) after paragraph 20 there shall be inserted— Newspaper mergers 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. Alterations concerning newspaper panel of Competition Commission 388 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Further provision in connection with media mergers 389 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). Part 6 Miscellaneous and Supplemental Annual report Annual report on the Secretary of State’s functions 390 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— 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. f the Online Safety Act 2023. 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. Review of media ownership Review of media ownership 391 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. 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. Guidelines as to penalties Penalties imposed by OFCOM 392 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) and Part 4 of the Enterprise Act 2002 . 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) and Part 4 of the Enterprise Act 2002 ) 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). Penalties under Parts 3A and 3B etc Amount of penalties etc 392A Schedule 16A contains provision about the amount of penalties that OFCOM may impose under Part 3A or 3B, and makes further provision about such penalties. Liability of parent entities etc 392B Schedule 16B contains provision for the purposes of Parts 3A and 3B about— a the giving of joint provisional notices of contravention to parent entities etc, b the liability of parent entities for failures by subsidiary entities, c the liability of subsidiary entities for failures by parent entities, d the liability of fellow subsidiary entities for failures by subsidiary entities, and e the liability of controlling individuals for failures by entities. Disclosure of information General restrictions on disclosure of information 393 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, b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c the 1990 Act, ... d the 1996 Act, or e the Online Safety Act 2023, 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 the Online Safety Act 2023 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 Competition and Markets Authority ; e . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . f the Consumer Panel; g S4C ; h a local weights and measures authority in Great Britain; ha a person appointed under— i paragraph 1 of Schedule 3 to the Coroners and Justice Act 2009, or ii section 2 of the Coroners Act (Northern Ireland) 1959 (c. 15 (N.I.)) ; hb the procurator fiscal, within the meaning of the enactment mentioned in subsection (5)(s); 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); 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— a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ca the Coroners Act (Northern Ireland) 1959; 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; l . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . m the Competition Act 1998 (c. 41); n the Enterprise Act 2002 (c. 40); na the Wireless Telegraphy Act 2006; nb Part 1 of the Coroners and Justice Act 2009; o the Consumer Protection (Northern Ireland) Order 1987 (S.I. 1987/2049 (N.I. 20)); p the Business Protection from Misleading Marketing Regulations 2008; q . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . r Parts 3 and 4 of the Enterprise and Regulatory Reform Act 2013. s the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (asp 2) . t the following provisions of the Digital Markets, Competition and Consumers Act 2024— i Part 1; ii Part 3; iii Chapter 1 of Part 4; iv Chapter 2 of Part 5. 6 Nothing in this section— a limits the matters that may be published under section 15, 26 , 134AB , 137A , 362AG(7), 362AW , 362BC(6) or 390 , or under section 149 of or Schedule 11 to the Online Safety Act 2023 ; aza prevents the disclosure of information under section 24A , 24B , 25 or 105L ; aa limits the information that may be made available under section 76A; ab limits the information that may be published by OFCOM under section 368OB ; 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) or the Online Safety Act 2023 ; bza prevents the publication or disclosure of a report or part of a report under section 105Z (6); bzb prevents the publication or disclosure of a report or part of a report under section 105Z13 (1) ; 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 , 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 Competition 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 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. Notifications etc. and electronic working Service of notifications and other documents 394 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 , other than Part 3A , Part 3B or Part 4A so far as relating to notifications by OFCOM ; b the Office of Communications Act 2002 (c. 11); c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e the 1990 Act; ... f the 1996 Act. 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. 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. 11 In its application to Schedule 3A this section is subject to paragraph 91 of that Schedule. Notifications and documents in electronic form 395 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 d may be modified or withdrawn at any time by a notice given to that person in such manner as he may require. 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. Timing and location of things done electronically 396 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. Other miscellaneous provisions Purchase of Duchy of Lancaster land 397 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. Repeal of certain provisions of the Telecommunications Act 1984 398 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 b section 97 (contributions by local authorities towards the provision of telecommunications facilities). Supplemental Expenses 399 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. Destination of ... fees and penalties 400 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 Chapter 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 section 42 ... or Part 2A of that Act ; 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. ha an amount paid to OFCOM in respect of a penalty imposed by them under Part 3A or 3B of this Act; i an amount paid to OFCOM in respect of a penalty imposed by them under Part 3 of the Postal Services Act 2011. j an amount paid to OFCOM in respect of a penalty imposed by them under Chapter 6 of Part 7 of the Online Safety Act 2023; k an amount paid to OFCOM in respect of an additional fee charged under Schedule 10 to the Online Safety Act 2023. 2 Where OFCOM receive an amount to which this section applies (except an amount mentioned in subsection (1)(j) or (k)) , 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. 3A Where OFCOM receive an amount mentioned in subsection (1)(j) or (k), it must be paid into the Consolidated Fund of the United Kingdom. 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 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); “ numbering conditions ” means conditions the setting of which is authorised by section 58 or 59; and “ relevant revenue ” means any of the following— 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; 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 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. Retention by OFCOM of amounts paid under Wireless Telegraphy Act 2006 401 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 ... authorises the retention of an amount, OFCOM are not required to pay it into the appropriate Consolidated Fund in accordance with section 400. 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. 4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A statement under this section may include provision which, for the purposes of ... 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 set out in the statement in accordance with subsection (1)(b) . 8 A statement ... 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 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). Power of Secretary of State to make orders and regulations 402 1 Every power conferred by section 124P and 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 ..., aza regulations under— i section 321A(7) (see subsection (9) of that section), ii section 368BC (see subsection (7) of that section), iii section 368FA(7) (see subsection (9) of that section), iv section 368Z14(8) (see subsection (10) of that section), or v section 368Z20 (see subsection (5) of that section), aa regulations under paragraph 95 of Schedule 3A which amend, repeal or modify the application of primary legislation, aa regulations within subsection (2A), b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c any order that is required, by any provision of this Act, to be laid before Parliament and approved in draft, or d any regulations that are 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. 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, any of the following may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament — zza regulations under section 245(3C) (specification of country or territory as a “qualifying country”); zzb regulations under section 315A which amend any Act of Parliament; a regulations under paragraph 27E(4) of Schedule 3A; b regulations under paragraph 95 of Schedule 3A which amend, repeal or modify the application of primary legislation. 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. 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. Regulations and orders made by OFCOM 403 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 30 days 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 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. Criminal liability of company directors etc. 404 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; b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . d . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . e the Telecommunications Act 1984 (c. 12) ; or f Part 3 of the Postal Services Act 2011. 5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . General interpretation 405 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; “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; “ 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; “ 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)— 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; 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; 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; “the EECC Directive” means Directive (EU) 2018/1972 of the European Parliament and of the Council of 11 December 2018 establishing the European Electronic Communications Code; “ 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— the Wireless Telegraphy Act 2006; and the 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 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; “ non-UK on-demand programme service ” has the meaning given by section 368AA(1); “ OFCOM ” means the Office of Communications; “on-demand programme service” has the meaning given by section 368A(1); ... “ postal services ” has the meaning given by section 27 of the Postal Services Act 2011; “ pre-commencement regulator ” means any of the following— the Broadcasting Standards Commission; the Director General of Telecommunications; the Independent Television Commission; the Radio Authority; “ programme ” includes an advertisement and, in relation to a service, anything included in that service which is an individual item (irrespective of length) ; “ programme service ” means— a television programme service; ... an additional television service; a digital additional television service; a radio programme service; or 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; “ S4C ” means the body corporate given the name S4C (or Sianel Pedwar Cymru) by section 56(1) of the 1990 Act; “ subordinate legislation ” means— any subordinate legislation, within the meaning of the Interpretation Act 1978 (c. 30); or 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— programme services apart from those provided by the BBC; and services provided by the BBC in relation to which OFCOM have functions; “ television programme ” means any programme (with or without sounds) which— is produced wholly or partly to be seen on television; and 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; “ Tier 1 service ” has the meaning given by section 368HA ; “very high capacity network” has the meaning given by section 4(12A); “ the Welsh Authority ” means the authority whose name is, by virtue of section 56(1) of the 1990 Act, Sianel Pedwar Cymru; “ wireless telegraphy ” has the same meaning as in the Wireless Telegraphy Act 2006; “ 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. 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 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. Minor and consequential amendments, transitionals and repeals 406 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, 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. Pre-consolidation amendments 407 1 The Secretary of State may by order make such modifications of— a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . b the enactments relating to broadcasting, and c enactments referring to enactments falling within paragraph ... (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. Transitional provision for anticipatory carrying out of functions 408 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— 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). Modifications consequential on regulations implementing Directives 409 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 EU 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. 4 In this section— “ the Communications Directives ” means— 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; 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; 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; 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— Part 1, 2 or 6; or 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. Application of enactments to territorial sea and other waters 410 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 or 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 or 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. 3 An Order in Council under section 11 of the Petroleum Act 1998 (c. 17) or 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. Short title, commencement and extent 411 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. 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.