Broadcasting Act 1990

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enforcement of additional services licences

55

• (1) If OFCOM are satisfied that the holder of an additional services licence has failed to comply with any condition of the licence or with any direction given by OFCOM under or by virtue of any provision of this Part, they may (subject to subsection (3)) serve on him a notice requiring him to pay, within a specified period, a specified financial penalty to OFCOM.

• (1A) The amount of a financial penalty imposed on a person in pursuance of subsection (1) shall not exceed 5 per cent. of the qualifying revenue for the licence holder’s last complete accounting period falling within the period for which his licence has been in force (“the relevant period”).

• (1B) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (1A) is to be construed as referring to 5 per cent. of the amount which OFCOM estimate to be the qualifying revenue for that accounting period.

• (1C) Section 52(2) applies for determining or estimating qualifying revenue for the purposes of subsection (1A) or (1B) above.

• (3) OFCOM shall not serve on any person a notice under subsection (1) unless they have given him a reasonable opportunity of making representations to them about the matters complained of.

• (4) Section 42 shall apply in relation to an additional services licence as it applies in relation to a licence to provide a Channel 3 service, but with the omission of subsection (7) and, in the case of a licence renewed under section 53 as if the reference in section 42(4) to the end of the period for which the licence is to continue in force were a reference to the end of the period for which it has been renewed.

Chapter VI — Television Broadcasting by Welsh Authority

Welsh Authority to continue in existence as Sianel Pedwar Cymru

56

• (1) The authority which at the commencement of this section is called the Welsh Fourth Channel Authority shall continue in existence as a body corporate but—

• (a) shall be known as Sianel Pedwar Cymru (or S4C); and

• (b) shall be constituted in accordance with ... this Act;

...

• (2) The members of the S4C Board (see section 56A and Schedule 6A) are to be the members of S4C, but membership of S4C does not enable any person to act otherwise than through the S4C Board.

• (3) Schedule 6 to this Act shall have effect with respect to S4C.

Function and duties of Welsh Authority

57

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sources of programmes for S4C

58

• (1) The BBC must provide to S4C (free of charge) sufficient television programmes in Welsh to occupy not less than ten hours’ transmission time per week, in a way that meets the reasonable requirements of S4C.

• (1A) The duty in subsection (1) does not apply during any period for which the BBC and S4C agree in writing to put in place alternative arrangements that contribute to S4C fulfilling its public service remit.

• (1B) If the BBC and S4C make an agreement under subsection (1A) the BBC must, as soon as reasonably practicable, publish the terms of the agreement.

• (1C) The BBC must exclude from publication any information which it or S4C considers—

• (a) constitutes a trade secret, or

• (b) would be likely, if published, to prejudice the commercial interests of any person,

unless the BBC and S4C consider that there is an overriding public interest in publishing the information.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) S4C shall publish, in such manner as they consider appropriate, advance notice of the programme schedules for the programmes to be broadcast on S4C Digital.

• (6) In this section “programme” does not include an advertisement.

Requirements to be complied with in relation to S4C programmes

59

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Advertising on S4C

60

• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) S4C shall—

• (a) from time to time consult the Secretary of State as to the classes and descriptions of advertisements which must not be broadcast on S4C Digital and the methods of advertising or sponsorship which must not be employed in, or in connection with, the provision of S4C Digital;

• (aa) from time to time consult the Secretary of State as to the forms and methods of product placement that should not be employed in the provision of S4C Digital (including the descriptions of products, services or trade marks for which product placement should not be employed); and

• (b) carry out any directions which he may give to them in respect of such matters.

• (5) S4C shall not act as an advertising agent.

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Funding of Welsh Authority

61

• (1) The Secretary of State shall secure that in 2012 and each subsequent year S4C are paid an amount which he considers sufficient to cover the cost to S4C during that year of fulfilling S4C’s public service remit.

• (2) The Secretary of State may discharge the duty in subsection (1) by making payments himself or entering into an agreement with another person for that person to do so (or both).

• (3) If under this section S4C are paid an amount for any year which exceeds the cost referred to in subsection (1), S4C may pay the difference from the public service fund referred to in section 61A to the person (or pro rata to the persons) from whom payments were received.

• (4) Any sums required by the Secretary of State under this section shall be paid out of money provided by Parliament.

Information to be supplied to Commission by Welsh Authority

62

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Government control over S4C

63

• (1) If it appears to him to be necessary or expedient to do so in connection with his functions as such, the Secretary of State or any other Minister of the Crown may at any time by notice require S4C to broadcast, at such times as may be specified in the notice, any announcement specified in the notice, with or without visual images of any picture, scene or object mentioned in the announcement; and it shall be the duty of S4C to comply with the notice.

• (2) Where S4C broadcast any announcement in pursuance of a notice under subsection (1), they may announce that they are doing so in pursuance of such a notice.

• (3) The Secretary of State may at any time by notice require S4C to refrain from broadcasting any matter or classes of matter specified in the notice; and it shall be the duty of S4C to comply with the notice.

• (4) Where the Secretary of State has given S4C a notice under subsection (3), S4C may broadcast an announcement of the giving of the notice or, when it has been revoked or has expired, of its revocation or expiration.

• (5) The powers conferred by this section are in addition to any power specifically conferred on the Secretary of State by any other provision of this Act.

Audience research by Welsh Authority

64

• (1) S4C shall make arrangements for ascertaining—

• (a) the state of public opinion concerning programmes broadcast on S4C Digital;

• (b) any effects of such programmes on the attitudes or behaviour of persons who watch them; and

• (c) the types of programme that members of the public would like to be broadcast on S4C Digital.

• (2) Those arrangements shall—

• (a) secure that, so far as is reasonably practicable, any research undertaken in pursuance of the arrangements is undertaken by persons who are neither members nor employees of S4C; and

• (b) include provision for full consideration by S4C of the results of any such research.

Chapter VII — Supplemental

Assignment of frequencies by Secretary of State

65

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Requirements relating to transmission and distribution of services

66

• (1) During such period as the Secretary of State may by order specify, all Channel 3 services shall be broadcast so as to be available for reception by members of the public by a single person under arrangements made with him by the persons licensed to provide those services; and every Channel 3 licence shall include such conditions as appear to OFCOM to be appropriate—

• (a) for securing that result and

• (b) for securing that the costs incurred in respect of the broadcasting of those services (taken as a whole) during that period in accordance with those arrangements are shared by those persons in such manner as may be approved by the Secretary of State.

• (2) Any Channel 3 licence shall include such conditions as appear to OFCOM to be appropriate for securing that the costs incurred in respect of the distribution of Channel 3 services (taken as a whole) during such period as the Secretary of State may by order specify are shared by the persons licensed to provide those services in such manner as may be approved by the Secretary of State. In this subsection “distribution”, in relation to Channel 3 services, means the conveyance of those services (by whatever means and whether directly or indirectly) to the broadcasting stations from which they are broadcast so as to be available for reception by members of the public.

• (2A) In subsections (1) and (2) “available for reception by members of the public” shall be construed in accordance with section 361 of the Communications Act 2003

• (3) The Secretary of State may, at any time during the period referred to in subsection (1) or (2), by order provide for that period to be extended by such further period as is specified in the order; and any conditions included in a Channel 3 licence in pursuance of that subsection shall accordingly, in any such case, have effect in relation to that period as so extended.

• (4) Any Channel 3 licence or licence to provide Channel 4 or 5 shall include such conditions as appear to OFCOM to be appropriate for requiring the signals carrying the licensed service to attain high standards in terms of technical quality and reliability throughout so much of the relevant area as is for the time being reasonably practicable.

• (5) Before imposing any conditions in pursuance of subsection (4) OFCOM shall consult the Secretary of State as to how much of the relevant area is to be specified in the conditions as the area throughout which the required standards are to be attained.

• (6) In subsections (4) and (5) “the relevant area”—

• (a) in relation to a Channel 3 or Channel 5 licence, means the area for which the licensed service is to be provided; and

• (b) in relation to the licence to provide Channel 4, means the United Kingdom.

• (7) S4C shall do all that they can to ensure that the signals carrying S4C Digital attain high standards in terms of technical quality and reliability throughout so much of the United Kingdom as is for the time being reasonably practicable.

• (8) Any order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Computation of qualifying revenue

67

Part I of Schedule 7 (which contains provisions relating to the computation of qualifying revenue for the purposes of this Part and Part II) shall have effect.

Certain receipts of Commission to be paid into Consolidated Fund

68

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Frequency planning and research and development

69

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Representation by Commission of Government and other interests in connection with broadcasting matters

70

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Interpretation of Part I

71

• (1) In this Part (unless the context otherwise requires)—

• “the 1981 Act” means the Broadcasting Act 1981;

• “additional service” and “additional services licence” have the meaning given by section 48(1) and section 49(10) respectively;

• “the appropriate percentage”, in relation to any year, has the meaning given by section 19(10);

• “cash bid”, in relation to a licence, has the meaning given by section 15(7);

• “Channel 3” means the system of television broadcasting services established ... under section 14, and “a Channel 3 licence” means a licence to provide one of the services comprised within that system;

• “Channel 4” means the television broadcasting service referred to in section 24(1), and “on Channel 4” means in that service;

• “Channel 5” means the television broadcasting service referred to in section 28(1), and “a Channel 5 licence” means a licence to provide that service;

• ...

• “the Corporation” means the Channel Four Television Corporation established by section 23;

• . . .

• “licence” means a licence under this Part, and “licensed” shall be construed accordingly;

• ...

• “national Channel 3 service” has the meaning given by section 14(6), and “a national Channel 3 licence” means a licence to provide a national Channel 3 service;

• . . .

• “regional Channel 3 service” has the meaning given by section 14(6), and “a regional Channel 3 licence” means a licence to provide a regional Channel 3 service;

• “restricted service” has the meaning given by section 42A;

• ...“S4C Digital” ... has the same meaning as in Part 3 of the Communications Act 2003;

• ...

• “spare capacity” shall be construed in accordance with section 48(2);

• “television broadcasting service”, “television licensable content service” and “television programme service” each has the same meaning as in Part 3 of the Communications Act 2003;

• (2) Where the person who is for the time being the holder of any licence (“the present licence holder”) is not the person to whom the licence was originally granted, any reference in this Part (however expressed) to the holder of the licence shall be construed, in relation to any time falling before the date when the present licence holder became the holder of it, as including a reference to a person who was previously the holder of the licence.

Part II — Local Delivery Services

Preliminary

Local delivery services

72

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Licensing of local delivery services

Licensing of local delivery services

73

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Applications for local delivery licences

74

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Procedure to be followed by Commission in connection with consideration of applications for licences

75

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Award of licence to person submitting highest cash bid

76

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Additional payments to be made in respect of local delivery licences

77

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Duration and renewal of local delivery licences

78

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Regulation of delivery of certain programmes

Regulation of delivery of programmes provided by licence holder and foreign satellite programmes

79

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Directions requiring licence holder to cease relaying foreign television programmes

80

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enforcement of licences

Enforcement of local delivery licences

81

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Prohibition on providing unlicensed local delivery services

Prohibition on providing local delivery services without a licence

82

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Part III — Independent Radio Services

Chapter I — Regulation by Authority of Independent Radio Services Generally

Establishment of Radio Authority

The Radio Authority

83

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Function of Authority

Regulation by Authority of independent radio services

84

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Licensing functions of Authority

85

• (1) ... OFCOM may, in accordance with the following provisions of this Part, grant licences to provide relevant independent radio services.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (8) In this section “relevant independent radio services” means the following services so far as they are services falling to be regulated under section 245 of the Communications Act 2003—

• (a) sound broadcasting services;

• (b) radio licensable content services;

• (c) additional radio services.

General provisions about licences

Licences under Part III

86

• (1) A licence shall be in writing and (subject to the provisions of this Part) shall continue in force (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) A licence may be granted by OFCOM for the provision of such a service as is specified in the licence or for the provision of a service of such a description as is so specified; and (without prejudice to the generality of the preceding provision) a licence may be so granted for the provision of a service which to any extent consists in the simultaneous broadcasting of different programmes on different frequencies.

• (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.

• (4) OFCOM —

• (a) shall not grant a licence to any person unless they are satisfied that he is a fit and proper person to hold it; and

• (b) shall do all that they can to secure that, if they cease to be so satisfied in the case of any person holding a licence, that person does not remain the holder of the licence;

and nothing in this Part shall be construed as affecting the operation of this subsection or of section 88(1) or (2)(b) or (c) or 89(1).

• (4A) Where OFCOM are not satisfied that a BBC company which has applied for a licence is a fit and proper person to hold it, they shall, before refusing the application, notify the Secretary of State that they are not so satisfied.

• (5) OFCOM may vary a licence by a notice served on the licence holder if—

• (a) in the case of a variation of the period for which the licence is to continue in force, the licence holder consents; or

• (b) in the case of any other variation, the licence holder has been given a reasonable opportunity of making representations to OFCOM about the variation.

• (6) Paragraph (a) of subsection (5) does not affect the operation of section 97B , 105A or 110(1)(b); and that subsection shall not authorise the variation of any conditions included in a licence in pursuance of section 102(1) or section 118(1).

• (7) A licence granted to any person under this Part shall not be transferable to any other person without the previous consent in writing of OFCOM .

• (8) Without prejudice to the generality of subsection (7), OFCOM shall not give their consent for the purposes of that subsection unless they are satisfied that any such other person would be in a position to comply with all of the conditions included in the licence which would have effect during the period for which it is to be in force.

• (9) The holding of a licence by a person shall not relieve him of—

• (a) any liability in respect of a failure to hold a licence under section 8 of the Wireless Telegraphy Act 2006; or

• (b) any obligation to comply with requirements imposed by or under Chapter 1 of Part 2 of the Communications Act 2003 (electronic communications networks and electronic communications services).

General licence conditions

87

• (1) A licence may include—

• (a) such conditions as appear to OFCOM to be appropriate having regard to any duties which are or may be imposed on them, or on the licence holder, by or under this Act , the Broadcasting Act 1996 or the Communications Act 2003;

• (b) conditions enabling OFCOM to supervise and enforce technical standards in connection with the provision of the licensed service;

• (c) conditions requiring the payment by the licence holder to OFCOM (whether on the grant of the licence or at such times thereafter as may be determined by or under the licence, or both) of a fee or fees of an amount or amounts so determined;

• (d) conditions requiring the licence holder to furnish OFCOM, in such manner and at such times as they may reasonably require, with such information as they may require for the purpose of exercising the functions assigned to them by or under this Act , the Broadcasting Act 1996 or the Communications Act 2003;

• (e) conditions requiring the licence holder, if found by OFCOM to be in breach of any condition of his licence, to reimburse to OFCOM, in such circumstances as are specified in any conditions, any costs reasonably incurred by them in connection with the breach of that condition;

• (f) conditions providing for such incidental and supplemental matters as appear to OFCOM to be appropriate.

• (2) A licence may in particular include—

• (a) conditions requiring the licence holder—

• (i) to comply with any direction given by OFCOM as to such matters as are specified in the licence or are of a description so specified, or

• (ii) (except to the extent that OFCOM consent to his doing or not doing them) not to do or to do such things as are specified in the licence or are of a description so specified; and

• (b) conditions requiring the licence holder to permit—

• (i) any employee of, or person authorised by, OFCOM, ...

• (ii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

to enter any premises which are used in connection with the broadcasting of the licensed service and to inspect, examine, operate or test any equipment on the premises which is used in that connection.

• (3) The fees required to be paid to OFCOM by virtue of subsection (1)(c) shall be in accordance with such tariff as may from time to time be fixed by OFCOM; ...

• (4) A tariff fixed under subsection (3) may specify different fees in relation to different cases or circumstances; and OFCOM shall publish every such tariff in such manner as they consider appropriate.

• (5) Where the holder of any licence—

• (a) is required by virtue of any condition imposed under this Part to provide OFCOM with any information, and

• (b) in purported compliance with that condition provides them with any information which is false in a material particular,

he shall be taken for the purposes of sections 110 and 111 to have failed to comply with that condition.

• (6) Nothing in this Act which authorises or requires the inclusion in a licence of conditions relating to any particular matter or having effect for any particular purpose shall be taken as derogating from the generality of subsection (1).

Restrictions on the holding of licences

88

• (1) OFCOM shall do all that they can to secure—

• (a) that a person does not become or remain the holder of a licence if he is a person who is a disqualified person in relation to that licence by virtue of Part II of Schedule 2 to this Act; and

• (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.

• (2) OFCOM may accordingly—

• (a) require any applicant for a licence to provide them with such information as they may reasonably require for the purpose of determining—

• (i) whether he is such a disqualified person as is mentioned in subsection (1)(a),

• (ii) whether any such requirements as are mentioned in subsection (1)(b) would preclude them from granting a licence to him, and

• (iii) if so, what steps would be required to be taken by or in relation to him in order for any such requirements to be complied with;

• (b) revoke the award of a licence to a body where a relevant change takes place after the award, but before the grant, of the licence;

• (c) make the grant of a licence to any person conditional on the taking of any specified steps that appear to them to be required to be taken as mentioned in paragraph (a)(iii);

• (d) impose conditions in any licence enabling them to require the licence holder, if a body corporate, to give to them advance notice of proposals affecting—

• (i) shareholdings in the body, or

• (ii) the directors of the body,

where such proposals are known to the body;

• (da) impose conditions in a licence requiring the licence holder, if a body corporate, to give OFCOM notice, after they have occurred and irrespective of whether proposals for them have fallen to be notified, of changes, transactions or events affecting—

• (i) shareholdings in the body; or

• (ii) the directors of the body;

• (db) impose conditions in a licence enabling OFCOM to require the licence holder to provide them with such information as they may reasonably require for determining—

• (i) whether the licence holder is a disqualified person in relation to that licence by virtue of Part 2 of Schedule 2; or

• (ii) whether any such requirements as are mentioned in subsection (1)(b) have been and are being complied with by or in relation to the licence holder;

• (e) impose conditions in any licence enabling them to give the licence holder directions requiring him to take, or arrange for the taking of, any specified steps appearing to them to be required to be taken in order for any such requirements as are mentioned in subsection (1)(b) to be complied with.

• (2A) Before revoking in pursuance of subsection (2)(b) the award of a licence to a BBC company, OFCOM shall give the Secretary of State notice of their intention to do so, specifying the relevant change.

• (3) Where OFCOM —

• (a) revoke the award of any licence in pursuance of subsection (2)(b), or

• (b) determine that any condition imposed by them in relation to any licence in pursuance of subsection (2)(c) has not been satisfied,

any provisions of this Part relating to the awarding of licences of the kind in question shall (subject to subsection (4)) have effect as if the person to whom the licence was awarded or granted had not made an application for it.

• (4) Those provisions shall not so have effect if OFCOM decide that it would be desirable to publish a fresh notice under this Part in respect of the grant of a licence, or (as the case may be) a further licence, to provide the service in question.

• (5) Every licence shall include such conditions as OFCOM consider necessary or expedient to ensure that where—

• (a) the holder of the licence is a body, and

• (b) a relevant change takes place after the grant of the licence,

OFCOM may revoke the licence by notice served on the holder of the licence and taking effect forthwith or on a date specified in the notice.

• (6) The Commission shall not serve any such notice on the licence holder unless—

• (a) the Commission have notified him of the matters constituting their grounds for revoking the licence and given him a reasonable opportunity of making representations to them about those matters, and

• (b) in a case where the relevant change is one falling within subsection (6A)—

• (i) they have also given him an opportunity of complying with the requirements imposed by or under Schedule 14 to the Communications Act 2003 within a period specified in the notification, and

• (ii) the period specified in the notification has elapsed.

• (6A) A relevant change falls within this subsection if it consists only in one or more of the following—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) a change in the national market share (within the meaning of Part 1 of Schedule 14 to the Communications Act 2003) of one or more national newspapers (within the meaning of that Part of that Schedule);

• (c) a change in the local market share (within the meaning of section 5) in a particular area of one or more local newspapers (within the meaning of Part 1 of Schedule 14 to the Communications Act 2003).

• (6B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6C) OFCOM shall not serve any such notice as is mentioned in subsection (5) on a BBC company unless they have given the Secretary of State notice of their intention to do so, specifying the relevant change.

• (6D) Where OFCOM receive any written representations from a BBC company under subsection (6), they shall send a copy of the representations to the Secretary of State.

• (7) In this section “relevant change”, in relation to a body to which a licence has been awarded or granted, means—

• (a) any change affecting the nature or characteristics of the body, or

• (b) any change in the persons having control over or interests in the body, or

• (c) any other change giving rise to a disqualification under Part 2 of Schedule 2 to this Act or a contravention of a requirement imposed by or under Schedule 14 to the Communications Act 2003,

being (in any case) a change which is such that, if it fell to OFCOM to determine whether to award the licence to the body in the new circumstances of the case, they would be induced by the change to refrain from so awarding it.

Disqualification for holding licence on grounds of conviction for transmitting offence

89

• (1) Subject to subsection (2), a person shall be disqualified for holding a licence under this Part if within the last five years he has been convicted of—

• (a) an offence under section 35 of the Wireless Telegraphy Act 2006 (unauthorised use etc of wireless telegraphy station or apparatus) consisting in the establishment or use of a wireless telegraphy station, or the installation or use of wireless telegraphy apparatus, for the purpose of making a broadcast (within the meaning of Part 5 of that Act);

• (aa) an offence under section 36 of that Act (keeping wireless telegraphy station or apparatus available for unauthorised use) where the relevant contravention of section 8 of that Act would constitute an offence falling within paragraph (a);

• (ab) an offence under section 37 or 38 of that Act (unlawful broadcasting offences);

• (b) an offence under Part 5 of that Act (prohibition of broadcasting from sea or air); or

• (c) an offence under section 97 below.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Every licence granted under this Part shall include conditions requiring the holder of the licence to do all that he can to ensure that no person who is disqualified for holding a licence by virtue of subsection (1) is concerned in—

• (a) the provision of the licensed service or the making of programmes included in it; or

• (b) the operation of a wireless telegraphy station used for broadcasting the service.

General provisions about licensed services

General requirements as to licensed services

90

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

General code for programmes

91

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

General provisions as to advertisements

92

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Control of advertisements

93

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Government control over licensed services

94

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Monitoring by Authority of programmes included in licensed services

95

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Audience research

96

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Prohibition on providing unlicensed independent radio services

Prohibition on providing independent radio services without a licence

97

• (1) Subject to subsection (2), any person who provides any relevant regulated radio service without being authorised to do so by or under a licence under this Part or Part II of the Broadcasting Act 1996 shall be guilty of an offence.

• (1A) In subsection (1) “relevant regulated radio service” means a service falling to be regulated by OFCOM under section 245 of the Communications Act 2003, other than a radio multiplex service.

• (2) The Secretary of State may, after consultation with OFCOM, by order provide that subsection (1) shall not apply to such services or descriptions of services as are specified in the order.

• (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) No proceedings in respect of an offence under this section shall be instituted—

• (a) in England and Wales, except by or with the consent of the Director of Public Prosecutions;

• (b) in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

• (5) Without prejudice to subsection (3) above, compliance with this section shall be enforceable by civil proceedings by the Crown for an injunction or interdict or for any other appropriate relief.

• (6) Any order under this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Chapter II — Sound Broadcasting Services

National services

Applications for national licences

98

• (1) Where OFCOM propose to grant a licence to provide a national service, they shall publish, in such manner as they consider appropriate, a notice—

• (a) stating that they propose to grant such a licence;

• (b) specifying—

• (i) the period for which the licence is to be granted,

• (ii) the minimum area of the United Kingdom for which the service is to be provided, and

• (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;

• (iii) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (iv) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) inviting applications for the licence and specifying the closing date for such applications; and

• (d) specifying—

• (i) the fee payable on any application made in pursuance of the notice, and

• (ii) the percentage of qualifying revenue for each accounting period that would be payable by an applicant in pursuance of section 102(1)(c) if he were granted the licence.

• (2) In determining the minimum area of the United Kingdom for which a national service is to be provided OFCOM shall have regard to the following considerations, namely—

• (a) that the service in question should, so far as is reasonably practicable, make the most effective use of the frequency or frequencies on which it is to be provided; but

• (b) that the area for which it is to be provided should not be so extensive that the costs of providing it would be likely to affect the ability of the person providing the service to maintain it.

• (3) Any application made in pursuance of a notice under this section must be in writing and accompanied by—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (aa) the applicant’s proposals (if any) for providing a simulcast radio service corresponding to the service;

• (b) the fee specified in the notice under subsection (1)(d)(i);

• (c) the applicant’s proposals for training or retraining persons employed or to be employed by him in order to help fit them for employment in, or in connection with, the making of programmes to be included in his proposed service;

• (d) the applicant’s cash bid in respect of the licence;

• (e) such information as OFCOM may reasonably require—

• (i) as to the applicant’s present financial position and his projected financial position during the period for which the licence would be in force, and

• (ii) as to the arrangements which the applicant proposes to make for, and in connection with, the transmission of his proposed service; and

• (f) such other information as OFCOM may reasonably require for the purpose of considering the application.

• (3A) For the purposes of subsection (1)(d)(ii)—

• (a) different percentages may be specified for different accounting periods; and

• (b) the percentages that may be specified for an accounting period include a nil percentage.

• (4) At any time after receiving such an application and before determining it OFCOM may require the applicant to furnish additional information under any of paragraphs ... (aa), (c), (e) and (f) of subsection (3).

• (5) Any information to be furnished to OFCOM under this section shall, if they so require, be in such form or verified in such manner as they may specify.

• (6) OFCOM shall, as soon as reasonably practicable after the date specified in a notice under this section as the closing date for applications, publish in such manner as they consider appropriate—

• (a) the name of every person who has made an application to them in pursuance of the notice;

• (b) the proposals submitted by him under subsection (3)(aa); and

• (c) such other information connected with his application as OFCOM consider appropriate.

• (7) In this section

“national radio multiplex licence” has the same meaning as in Part 2 of the Broadcasting Act 1996; and

“programme” does not include an advertisement.

• (8) In this Part “cash bid”, in relation to a licence, means an offer to pay to OFCOM a specified amount of money in respect of the first complete calendar year falling within the period for which the licence is in force (being an amount which, as increased by the appropriate percentage, is also to be payable in respect of subsequent years falling wholly or partly within that period).

Procedure to be followed by Authority in connection with consideration of applications for national licences

99

• (1) Where a person has made an application for a national licence in accordance with section 98, OFCOM shall not proceed to consider whether to award him the licence on the basis of his cash bid in accordance with section 100 unless it appears to them—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) that he would be able to maintain the proposed service and any proposed simulcast radio service corresponding to that service throughout the period for which the licence would be in force.

• (2) Any reference to an applicant in section 100 (except in section 100(9)(b)) is accordingly a reference to an applicant in whose case it appears to OFCOM that the requirements of subsection (1) above are satisfied.

Award of national licence to person submitting highest cash bid

100

• (1) Subject to the following provisions of this section, OFCOM shall, after considering all the cash bids submitted by the applicants for a national licence, award the licence to the applicant who submitted the highest bid.

• (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.

• (3) OFCOM may disregard the requirement imposed by subsection (1) and award the licence to an applicant who has not submitted the highest bid if it appears to them that there are exceptional circumstances which make it appropriate for them to award the licence to that applicant; and where it appears to OFCOM, in the context of the licence, that any circumstances are to be regarded as exceptional circumstances for the purposes of this subsection, those circumstances may be so regarded by them despite the fact that similar circumstances have been so regarded by them in the context of any other licence or licences.

• (4) If it appears to OFCOM, in the case of the applicant to whom (apart from this subsection) they would award the licence in accordance with the preceding provisions of this section, that there are grounds for suspecting that any relevant source of funds is such that it would not be in the public interest for the licence to be awarded to him—

• (a) they shall refer his application to the Secretary of State, together with—

• (i) a copy of all documents submitted to them by the applicant, and

• (ii) a summary of their deliberations on the application; and

• (b) they shall not award the licence to him unless the Secretary of State has given his approval.

• (5) On such a reference the Secretary of State may only refuse to give his approval to the licence being awarded to the applicant in question if he is satisfied that any relevant source of funds is such that it would not be in the public interest for the licence to be so awarded.

• (6) In subsections (4) and (5) “relevant source of funds”, in relation to an applicant, means any source of funds to which he might (directly or indirectly) have recourse for the purpose of—

• (a) paying any amounts payable by him by virtue of section 102(1), or

• (b) otherwise financing the provision of his proposed service.

• (7) Where OFCOM are, by virtue of subsection (4), precluded from awarding the licence to an applicant, the preceding provisions of this section shall (subject to subsection (11)) have effect as if that person had not made an application for the licence.

• (8) Where OFCOM have awarded a national licence to any person in accordance with this section, they shall, as soon as reasonably practicable after awarding the licence—

• (a) publish the matters specified in subsection (9) in such manner as they consider appropriate; and

• (b) grant the licence to that person.

• (9) The matters referred to in subsection (8)(a) are—

• (a) the name of the person to whom the licence has been awarded and the amount of his cash bid;

• (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) where the licence has, by virtue of subsection (3) above, been awarded to an applicant who has not submitted the highest cash bid, OFCOM’s reasons for the licence having been so awarded; and

• (d) such other information as OFCOM consider appropriate.

• (10) In a case where the licence has been awarded to any person by virtue of the operation of this section, in accordance with any provision of this Part, on the revocation of an earlier grant of the licence, subsection (9) shall have effect as if—

• (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (b) the matters specified in that subsection included an indication of the circumstances in which the licence has been awarded to that person.

• (11) Subsections (1) to (6) shall not have effect as mentioned in subsection (7) if OFCOM decide that it would be desirable to publish a fresh notice under section 98 in respect of the grant of the licence; and similarly, where any of the following provisions of this Part provides, in connection with the revocation of a licence, for this section to have effect as if the former holder of the licence had not made an application for it, this section shall not so have effect if OFCOM decide that it would be desirable to publish a fresh notice under this Part in respect of the grant of a further licence to provide the service in question.

Failure to begin providing licensed service and financial penalties on revocation of licence

101

• (1) If at any time after a national licence has been granted to any person but before the licence has come into force—

• (a) that person indicates to OFCOM that he does not intend to provide the licensed national service or that he does not intend to provide a corresponding simulcast radio service that he is required to provide by a condition imposed under section 100A, or

• (b) OFCOM for any other reason have reasonable grounds for believing that that person will not provide the licensed national service or any such simulcast radio service once the licence has come into force,

then, subject to subsection (2)—

• (i) OFCOM shall serve on him a notice revoking the licence as from the time the notice is served on him, and

• (ii) section 100 shall (subject to section 100(11)) have effect as if he had not made an application for the licence.

• (2) Subsection (1) shall not apply in the case of any person by virtue of paragraph (b) of that subsection unless OFCOM have served on him a notice stating their grounds for believing that he will not provide the licensed national service or the simulcast radio service once his licence has come into force; and they shall not serve such a notice on him unless they have given him a reasonable opportunity of making representations to them about the matters complained of.

• (3) Where OFCOM revoke a national licence under this section or under any other provision of this Part, they shall serve on the licence holder a notice requiring him to pay to them, within a specified period, a specified financial penalty.

• (3A) The maximum amount which a person may be required to pay by way of a penalty under subsection (3) is the maximum penalty given by subsections (3B) and (3C).

• (3B) In a case where the licence is revoked under this section or the penalty is imposed before the end of the first complete accounting period of the licence holder to fall within the period for which the licence is in force, the maximum penalty is whichever is the greater of—

• (a) £250,000; and

• (b) 7 per cent. of the amount which OFCOM estimate would have been the qualifying revenue for the first complete accounting period of the licence holder falling within the period for which the licence would have been in force.

• (3C) In any other case, the maximum penalty is whichever is the greater of—

• (a) £250,000; and

• (b) 7 per cent. of the qualifying revenue for the last complete accounting period of the licence holder falling within the period for which the licence is in force.

• (3D) Section 102(2) to (6) applies for estimating or determining qualifying revenue for the purposes of subsection (3B) or (3C) above.

• (5) Any financial penalty payable by any body by virtue of subsection (3) shall, in addition to being recoverable from that body as provided by section 122(4), be recoverable by OFCOM as a debt due to them from any person who controls that body.

Additional payments to be made in respect of national licences

102

• (1) A national licence shall include conditions requiring the licence holder to pay to OFCOM (in addition to any fees required to be so paid by virtue of section 87(1)(c))—

• (a) in respect of the first complete calendar year falling within the period for which the licence is in force, the amount specified in his cash bid;

• (b) in respect of each subsequent year falling wholly or partly within that period, the amount so specified as increased by the appropriate percentage; and

• (c) in respect of each accounting period of his falling within the period referred to in paragraph (a), an amount representing such percentage of the qualifying revenue for that accounting period as was specified in relation to the licence under section 98(1)(d)(ii).

• (2) For the purposes of subsection (1)(c) the qualifying revenue for any accounting period of the licence holder shall (subject to subsection (6)) consist of all payments received or to be received by him or by any connected person—

• (a) in consideration of the inclusion in the licensed service in that period of advertisements or other programmes, or

• (b) in respect of charges made in that period for the reception of programmes included in that service.

• (3) If, in connection with the inclusion of any advertisements or other programmes whose inclusion is paid for by payments falling within subsection (2), any payments are made to the licence holder or any connected person to meet any payments payable by the licence holder by virtue of subsection (1)(c), those payments shall be regarded as made in consideration of the inclusion of the programmes in question.

• (4) In the case of an advertisement included under arrangements made between—

• (a) the licence holder or any connected person, and

• (b) a person acting as an advertising agent,

the amount of any receipt by the licence holder or any connected person that represents a payment by the advertiser from which the advertising agent has deducted any amount by way of commission shall, except in a case falling within subsection (5), be the amount of the payment by the advertiser after the deduction of the commission.

• (5) If the amount deducted by way of commission as mentioned in subsection (4) exceeds 15 per cent. of the payment by the advertiser, the amount of the receipt in question shall be taken to be the amount of the payment less 15 per cent.

• (6) If, in any accounting period of the licence holder, the licence holder or any connected person derives, in relation to any programme to be included in the licensed service, any financial benefit (whether direct or indirect) from payments made by any person, by way of sponsorship, for the purpose of defraying or contributing towards costs incurred or to be incurred in connection with that programme, the qualifying revenue for that accounting period shall be taken for the purposes of subsection (1)(c) to include the amount of the financial benefit so derived by the licence holder or the connected person, as the case may be.

• (7) A national licence may include conditions—

• (a) enabling OFCOM to estimate before the beginning of an accounting period the amount due for that period by virtue of subsection (1)(c); and

• (b) requiring the licence holder to pay the estimated amount by monthly instalments throughout that period.

• (8) Such a licence may in particular include conditions—

• (a) authorising OFCOM to revise any estimate on one or more occasions, and to adjust the instalments payable by the licence holder to take account of the revised estimate;

• (b) providing for the adjustment of any overpayment or underpayment.

• (9) Where—

• (a) the first complete accounting period of the licence holder falling within the period referred to in subsection (1)(a) (“the licence period”) does not begin at the same time as that period, or

• (b) the last complete accounting period of his falling within the licence period does not end at the same time as that period,

any reference in subsection (1)(c) to an accounting period of his shall include a reference to such part of the accounting period preceding that first complete accounting period, or (as the case may be) following that last complete accounting period, as falls within the licence period; and other references to accounting periods in this Part shall be construed accordingly.

• (10) In this Part “the appropriate percentage”, in relation to any year (“the relevant year”), means the percentage which corresponds to the percentage increase between—

• (a) the retail prices index for the month of November in the year preceding the first complete calendar year falling within the period for which the licence in question is in force; and

• (b) the retail prices index for the month of November in the year preceding the relevant year;

and for this purpose “the retail prices index” means the general index of prices (for all items) published by the Statistics Board.

Restriction on changes in control over holder of national licence

103

• (1) Where—

• (a) any change in the persons having control over—

• (i) a body to which a national licence has been awarded or transferred in accordance with this Part of this Act, or

• (ii) an associated programme provider,

takes place within the relevant period, and

• (b) that change takes place without having been previously approved for the purposes of this section by OFCOM,

then (subject to subsection (5)) OFCOM may, if the licence has not yet been granted, refuse to grant it to the body referred to in paragraph (a)(i) above or, if it has already been granted, serve on that body a notice revoking it.

• (2) In subsection (1)—

• “associated programme provider”, in relation to such a body as is mentioned in paragraph (a)(i) of that subsection, means any body which is connected with that body and is or is likely to be involved, to a substantial extent, in the provision of the programmes included in the licensed service; and

• “the relevant period”, in relation to a national licence, means the period beginning with the date of the award of the licence and ending on the first anniversary of the date of its coming into force;

and paragraph 3 in Part I of Schedule 2 to this Act shall have effect for the purposes of this subsection as it has effect for the purposes of that Schedule.

• (3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (4) OFCOM may refuse to approve a change described in subsection (1)(a) if they consider it appropriate to do so.

• (5) OFCOM shall not under subsection (1) refuse to grant a licence to, or serve a notice on, any body unless they have given it a reasonable opportunity of making representations to them about the matters complained of.

• (6) Where under subsection (1) OFCOM refuse to grant a licence to any body, section 100 shall (subject to section 100(11)) have effect as if that body had not made an application for the licence; and, where under that subsection they serve on any body a notice revoking its licence, subsections (6) and (7) of section 111 shall apply in relation to that notice as they apply in relation to a notice served under subsection (3) of that section.

Local and other services

Applications for other licences

104

• (1) An application for a licence to provide a local service must—

• (a) be made in such manner as OFCOM may determine, and

• (b) be accompanied by such fee (if any) as OFCOM may determine.

• (2) An application for a licence to provide a restricted service must—

• (a) be made in such manner as OFCOM may determine, and

• (b) be accompanied by such fee (if any) as OFCOM may determine.

Special requirements relating to grant of local licences

105

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Miscellaneous provisions relating to national and local services

Requirements as to character and coverage of national and local services

106

• (1) A national ... licence shall include such conditions as appear to OFCOM to be appropriate for securing that the character of the licensed service, as proposed by the licence holder when making his application, is maintained during the period for which the licence is in force....

• (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) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (d) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (1B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) A national or local licence shall include conditions requiring the licence holder to secure that the licensed service serves so much of the area or locality for which it is licensed to be provided as is for the time being reasonably practicable.

• (3) A national licence shall include conditions enabling OFCOM, where it appears to them to be reasonably practicable for the licensed service to be provided for any additional area falling outside the minimum area determined by them in accordance with section 98(2), to require the licence holder to provide the licensed service for any such additional area.

• (4) Subject to subsection (5), OFCOM may, if they think fit, authorise the holder of a local licence, by means of a variation of his licence to that effect, to provide the licensed service for any additional area or locality adjoining the area or locality for which that service has previously been licensed to be provided.

• (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.

• (6) As soon as practicable after OFCOM have exercised that power in relation to any service, they shall publish, in such manner as they consider appropriate, a notice—

• (a) stating that they have exercised that power in relation to that service; and

• (b) giving details of the additional area or locality for which that service is licensed to be provided.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Party political broadcasts

107

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Promotion of equal opportunities in relation to employment by holder of national licence

108

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enforcement of licences

Power to require scripts etc. or broadcasting of correction or apology

109

• (1) If OFCOM are satisfied that the holder of a licence granted under this Chapter has failed to comply with any condition of the licence or with any direction given by OFCOM under or by virtue of any provision of this Part, they may serve on him a notice—

• (a) stating that OFCOM are so satisfied as respects any specified condition or direction;

• (b) stating the effect of subsection (2); and

• (c) specifying for the purposes of that subsection a period not exceeding twelve months.

• (2) If, at any time during the period specified in a notice under subsection (1), OFCOM are satisfied that the licence holder has again failed to comply with any such condition or direction as is mentioned in that subsection (whether or not the same as the one specified in the notice), OFCOM may direct him—

• (a) to provide OFCOM in advance with such scripts and particulars of the programmes to be included in the licensed service as are specified in the direction; and

• (b) in relation to such of those programmes as will consist of or include recorded matter, to produce to OFCOM in advance for examination or reproduction such recordings of that matter as are so specified;

and a direction under this subsection shall have effect for such period, not exceeding six months, as is specified in the direction.

• (3) If OFCOM are satisfied—

• (a) that the holder of a licence has failed to comply with any condition of the licence, and

• (b) that that failure can be appropriately remedied by the inclusion in the licensed service of a correction or a statement of findings (or both) under this subsection,

they may (subject to subsection (4)) direct the licence holder to include in the licensed service a correction or a statement of findings (or both) in such form, and at such time or times, as they may determine.

• (4) OFCOM shall not give any person a direction under subsection (3) unless they have given him a reasonable opportunity of making representations to OFCOM about the matters complained of.

• (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 subsection (3), he may announce that he is doing so in pursuance of such a direction.

• (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.

Power to impose financial penalty or suspend or shorten licence period

110

• (1) If OFCOM are satisfied that the holder of a licence granted under this Chapter has failed to comply with any condition of the licence or with any direction given by them under or by virtue of any provision of this Part, they may (subject to the following provisions of this section) serve on him—

• (a) a notice requiring him to pay, within a specified period, a specified financial penalty to OFCOM;

• (b) a notice reducing the period for which the licence is to be in force by a specified period not exceeding two years; or

• (c) a notice suspending the licence for a specified period not exceeding six months.

• (1A) The maximum amount which the holder of a national licence may be required to pay by way of a financial penalty imposed in pursuance of subsection (1)(a) is the maximum penalty given by subsection (1B).

• (1B) The maximum penalty is whichever is the greater of—

• (a) £250,000; and

• (b) 5 per cent. of the qualifying revenue for his last complete accounting period falling within the period for which his licence has been in force (“the relevant period”).

• (1C) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (1B)(b) is to be construed as referring to 5 per cent. of the amount which OFCOM estimate to be the qualifying revenue for that accounting period.

• (1D) Section 102(2) to (6) applies for determining or estimating qualifying revenue for the purposes of subsection (1B) or (1C) above.

• (3) The amount of any financial penalty imposed in pursuance of subsection (1)(a) on the holder of any other licence shall not exceed £250,000.

• (4) OFCOM shall not serve on any person such a notice as is mentioned in subsection (1)(a), (b) or (c) unless they have given him a reasonable opportunity of making representations to them about the matters complained of.

• (5) Where a licence is due to expire on a particular date by virtue of a notice served on any person under subsection (1)(b), OFCOM may, on the application of that person, revoke that notice by a further notice served on him at any time before that date, if they are satisfied that, since the date of the earlier notice, his conduct in relation to the operation of the licensed service has been such as to justify the revocation of that notice.

• (6) It is hereby declared that any exercise by OFCOM of their powers under subsection (1) of this section in respect of any failure to comply with any condition or direction shall not preclude any exercise by them of their powers under section 109 in respect of that failure.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Power to revoke licences

111

• (1) If OFCOM are satisfied—

• (a) that the holder of a licence granted under this Chapter is failing to comply with any condition of the licence or with any direction given by them under or by virtue of any provision of this Part, and

• (b) that that failure is such that, if not remedied, it would justify the revocation of the licence,

they shall (subject to subsection (8)) serve on the holder of the licence a notice under subsection (2).

• (2) A notice under this subsection is a notice—

• (a) stating that OFCOM are satisfied as mentioned in subsection (1);

• (b) specifying the respects in which, in their opinion, the licence holder is failing to comply with any such condition or direction as is there mentioned; and

• (c) stating that, unless the licence holder takes, within such period as is specified in the notice, such steps to remedy the failure as are so specified, OFCOM will revoke his licence under subsection (3).

• (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 (subject to subsection (8)) serve on him a notice revoking his licence.

• (4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (5) If OFCOM are satisfied—

• (a) that the holder of a licence granted under this Chapter 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 (subject to subsection (8)) serve on him a notice revoking his licence.

• (6) Subject to subsection (7), any notice served under subsection (3) ... or (5) shall take effect as from the time when it is served on the licence holder.

• (7) If it appears to OFCOM to be appropriate to do so for the purpose of preserving continuity in the provision of the service in question, they may provide in any such notice for it to take effect as from a date specified in it.

• (8) OFCOM shall not serve any notice on a person under this section unless they have given him a reasonable opportunity of making representations to them about the matters complained of.

Chapter III — Licensable Sound Programme Services

Licensable sound programme services

112

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Licensing etc. of licensable sound programme services

113

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Chapter IV — Additional Services Provided on Sound Broadcasting Frequencies

Additional services

114

• (1) In this Part “additional service” means any service which consists in the sending of electronic signals for transmission by wireless telegraphy by means of the use of the spare capacity within the signals carrying any sound broadcasting service provided—on a relevant frequency.

• (2) For the purposes of this Part the spare capacity within the signals carrying any such broadcasting service shall be taken to be any part of the signals which—

• (a) is not required for the purposes of the sound broadcasting service for the purposes of which the frequency has been made available; and

• (b) is determined by OFCOM to be available for the provision of additional services;

and references in this Part to spare capacity shall be construed accordingly.

• (2A) At any time while an additional services licence is in force, OFCOM may, if they consider it appropriate to do so, modify or further modify the determination made for the purposes of that licence under subsection (2)(b); and where there has been such a modification or further modification, the licence shall have effect accordingly.

• (2B) A modification or further modification under subsection (2A) must not reduce the amount of spare capacity made available for the licensed services.

• (3) OFCOM shall, when determining under subsection (2) the extent and nature of the spare capacity available for the provision of additional services in the case of any frequency on which a national service is provided, have regard to any need of the person providing that service to be able to use part of the signals carrying it for providing services which are ancillary to programmes included in the service.

• (4) A person holding a national licence shall be taken for the purposes of this Part to be authorised by his licence to provide any such services as are mentioned in subsection (3).

• (5) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (6) In this section “electronic signal” means a signal within the meaning of section 32 of the Communications Act 2003.

• (7) In this section and section 115 “relevant frequency” means a frequency made available by OFCOM for the purposes of a sound broadcasting service.

Licensing of additional services

115

• (1) OFCOM shall do all that they can to secure that, in the case of each relevant frequency, all of the spare capacity available for the provision of additional services on that frequency is used for the provision of such services under additional services licences granted by OFCOM in accordance with this section.

• (2) An additional services licence may relate to the use of spare capacity within more than one frequency; and two or more additional services licences may relate to the use of spare capacity within the same frequency where it is to be used at different times, or in different areas, in the case of each of those licences.

• (3) An additional services licence may include provisions enabling the licence holder, subject to and in accordance with such conditions as OFCOM may impose, to authorise any person to whom this subsection applies to provide any additional service on the spare capacity allocated by the licence.

• (4) Subsection (3) applies to any person who is not a disqualified person in relation to an additional services licence by virtue of Part II of Schedule 2 to this Act and who would not be in contravention of the requirements imposed by or under Schedule 14 to the Communications Act 2003 if he held such a licence.

• (5) Any conditions included in an additional services licence shall apply in relation to the provision of additional services by a person authorised as mentioned in subsection (3) as they apply in relation to the provision of such services by the licence holder; and any failure by such a person to comply with any such conditions shall be treated for the purposes of this Part as a failure on the part of the licence holder to comply with those conditions.

• (6) Every licence to provide a national service shall include such conditions as appear to OFCOM to be appropriate for securing that the licence holder grants—

• (a) to any person who holds a licence to provide additional services on the frequency on which that national service is provided, and

• (b) to any person who is authorised by any such person as mentioned in subsection (3) to provide additional services on that frequency,

access to facilities reasonably required by that person for the purposes of, or in connection with, the provision of any such additional services.

• (7) Any person who grants to any other person access to facilities in accordance with conditions imposed under subsection (6) may require that other person to pay a reasonable charge in respect thereof; and any dispute as to the amount of any such charge shall be determined by OFCOM.

• (8) The holder of a licence to provide a local or restricted service or to provide a radio licensable content service shall be taken for the purposes of this Part to be authorised by his licence to provide, or to authorise another person to provide, additional services on the frequency on which the licensed service is provided.

• (9) In this Part “additional services licence” means a licence to provide additional services.

Applications for additional services licences

116

• (1) Where OFCOM propose to grant a licence to provide additional services they shall publish, in such manner as they consider appropriate, a notice—

• (a) stating that they propose to grant such a licence;

• (b) specifying—

• (i) the period for which the licence is to be granted,

• (ii) the sound broadcasting service or services on whose frequency or frequencies the services are to be provided, and

• (iii) ... the extent and nature of the spare capacity which is to be allocated by the licence;

• (c) inviting applications for the licence and specifying the closing date for such applications; and

• (d) specifying—

• (i) the fee payable on any application made in pursuance of the notice, and

• (ii) the percentage of qualifying revenue for each accounting period that would be payable by an applicant in pursuance of section 118(1)(c) if he were granted the licence.

• (2) OFCOM may, if they think fit, specify under subsection (1)(d)(ii)—

• (a) different percentages in relation to different accounting periods falling within the period for which the licence would be in force;

• (b) a nil percentage in relation to any accounting period so falling.

• (3) Any application made in pursuance of a notice under this section must be in writing and accompanied by—

• (a) the fee specified in the notice under subsection (1)(d)(i);

• (b) a technical plan indicating—

• (i) the nature of any additional services which the applicant proposes to provide, and

• (ii) so far as known to the applicant, the nature of any additional services which any other person proposes to provide in accordance with section 115(3);

• (c) the applicant’s cash bid in respect of the licence; and

• (d) such information as OFCOM may reasonably require as to the applicant’s present financial position and his projected financial position during the period for which the licence would be in force.

• (4) At any time after receiving such an application and before determining it OFCOM may require the applicant to furnish additional information under subsection (3)(b) or (d).

• (5) Any information to be furnished to OFCOM under this section shall, if they so require, be in such form or verified in such manner as they may specify.

• (6) OFCOM shall, as soon as reasonably practicable after the date specified in a notice under this section as the closing date for applications, publish in such manner as they consider appropriate—

• (a) the name of every person who has made an application to them in pursuance of the notice;

• (b) particulars of the technical plan submitted by him under subsection (3)(b); and

• (c) such other information connected with his application as OFCOM consider appropriate.

Procedure to be followed by Authority in connection with consideration of applications for, and awarding of, licences

117

• (1) Where a person has made an application for an additional services licence in accordance with section 116, OFCOM shall not proceed to consider whether to award him the licence on the basis of his cash bid in accordance with subsections (3) and (4) below unless it appears to them—

• (a) that the technical plan submitted under section 116(3)(b), in so far as it involves the use of an electronic communications network (within the meaning of the Communications Act 2003), contains proposals that are acceptable to them; and

• (b) that the services proposed to be provided under the licence would be capable of being maintained throughout the period for which the licence would be in force;

and any reference to an applicant in section 100 (as applied by subsection (3) below) is accordingly a reference to an applicant in whose case it appears to OFCOM that the requirements of paragraphs (a) and (b) above are satisfied.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (3) Subject to subsection (4), section 100 shall apply in relation to an additional services licence as it applies in relation to a national licence.

• (4) In the application of section 100 in relation to an additional services licence—

• (a) subsection (6) shall have effect with the substitution in paragraph (a) of a reference to section 118(1) for the reference to section 102(1); and

• (b) subsection (9) shall have effect as if the matters specified in that subsection included the name of every other applicant in whose case it appeared to OFCOM that the requirement specified in subsection (1)(a) above was satisfied.

• (5) If at any time after an additional services licence has been granted to any person but before the licence has come into force—

• (a) that person indicates to OFCOM that none of the services in question will be provided once the licence has come into force, or

• (b) OFCOM for any other reason have reasonable grounds for believing that none of those services will be so provided,

then, subject to subsection (6)—

• (i) OFCOM shall serve on him a notice revoking the licence as from the time the notice is served on him, and

• (ii) section 100 (as applied by subsection (3) above) shall, subject to section 100(11), have effect as if he had not made an application for the licence.

• (6) Subsection (5) shall not apply in the case of any person by virtue of paragraph (b) of that subsection unless OFCOM have served on him a notice stating their grounds for believing that none of the services in question will be provided once his licence has come into force; and they shall not serve such a notice on him unless they have given him a reasonable opportunity of making representations to them about the matters complained of.

• (7) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Additional payments to be made in respect of additional services licences

118

• (1) An additional services licence shall include conditions requiring the licence holder to pay to OFCOM (in addition to any fees required to be so paid by virtue of section 87(1)(c))—

• (a) in respect of the first complete calendar year falling within the period for which the licence is in force, the amount specified in his cash bid;

• (b) in respect of each subsequent year falling wholly or partly within that period, the amount so specified as increased by the appropriate percentage; and

• (c) in respect of each accounting period of his falling within the period referred to in paragraph (a), an amount representing such percentage of the qualifying revenue for that accounting period as was specified in relation to the licence under section 116(1)(d)(ii).

• (2) For the purposes of subsection (1)(c) the qualifying revenue for any accounting period of the licence holder shall consist of all amounts which are received or to be received by him or by any connected person and are referable to the right under his licence to use, or to authorise any other person to use, in that period the spare capacity allocated by the licence.

• (3) An additional services licence may include conditions—

• (a) enabling OFCOM to estimate before the beginning of an accounting period the amount due for that period by virtue of subsection (1)(c); and

• (b) requiring the licence holder to pay the estimated amount by monthly instalments throughout that period.

• (4) Such a licence may in particular include conditions—

• (a) authorising OFCOM to revise any estimate on one or more occasions, and to adjust the instalments payable by the licence holder to take account of the revised estimate;

• (b) providing for the adjustment of any overpayment or underpayment.

• (5) Where—

• (a) the first complete accounting period of the licence holder falling within the period referred to in subsection (1)(a) (“the licence period”) does not begin at the same time as that period, or

• (b) the last complete accounting period of his falling within the licence period does not end at the same time as that period,

any reference in subsection (1)(c) to an accounting period of his shall include a reference to such part of the accounting period preceding that first complete accounting period, or (as the case may be) following that last complete accounting period, as falls within the licence period; and other references to accounting periods in this Part shall be construed accordingly.

Additional services not to interfere with other transmissions

119

• (1) An additional services licence may include such conditions as OFCOM consider appropriate for securing that the provision of any additional service under the licence does not cause any interference with—

• (a) the sound broadcasting service or services on whose frequency or frequencies it is provided, or

• (b) any other wireless telegraphy transmissions.

• (2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Enforcement of additional services licences

120

• (1) If OFCOM are satisfied that the holder of an additional services licence has failed to comply with any condition of the licence or with any direction given by OFCOM under or by virtue of any provision of this Part, they may (subject to subsection (3)) serve on him a notice requiring him to pay, within a specified period, a specified financial penalty to OFCOM.

• (1A) The amount of a financial penalty imposed on a person in pursuance of subsection (1) shall not exceed 5 per cent. of the qualifying revenue for the licence holder’s last complete accounting period falling within the period for which his licence has been in force (“the relevant period”).

• (1B) In relation to a person whose first complete accounting period falling within the relevant period has not ended when the penalty is imposed, subsection (1A) is to be construed as referring to 5 per cent. of the amount which OFCOM estimate to be the qualifying revenue for that accounting period.

• (1C) Section 118(2) applies for determining or estimating qualifying revenue for the purposes of subsection (1A) or (1B) above.

• (3) OFCOM shall not serve on any person a notice under subsection (1) unless they have given him a reasonable opportunity of making representations to them about the matters complained of.

• (4) Section 111 shall apply in relation to an additional services licence as it applies in relation to a licence granted under Chapter II of this Part, but with the omission of subsection (7).

Chapter V — Supplemental

Computation of qualifying revenue

121

Part II of Schedule 7 (which contains provisions relating to the computation of qualifying revenue for the purposes of this Part) shall have effect.

Certain receipts of Authority to be paid into Consolidated Fund

122

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Frequency planning and general research and development

123