Broadcasting Act 1990

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

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

Licensing etc. of licensable sound programme services

113

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

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

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

Frequency planning and general research and development

123

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

Authority to assist Secretary of State in connection with licensing functions under 1949 Act

124

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

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

125

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

Interpretation of Part III

126

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

• “additional service” and “additional services licence” shall be construed in accordance with section 114(1) and section 115(9) respectively;

• “the appropriate percentage”, in relation to any year, has the meaning given by section 102(10);

• ...

• “cash bid” has the meaning given by section 98(8);

• “independent radio service” means a service falling to be regulated under section 245 of the Communications Act 2003;

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

• ...

• “local licence” and “national licence” mean a licence to provide a local service and a licence to provide a national service, respectively;

• “local service”, “national service” and “restricted service” each has the same meaning as in section 245 of the Communications Act 2003;

• “pre-transfer local licence” and “pre-transfer national licence” each has the same meaning as in section 253 of that Act;

• “radio licensable content service” has the same meaning as in Part 3 of that Act;

• “radio transfer date” has the same meaning as in that Act;

• “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;

• “sound broadcasting service” means a broadcasting service whose broadcasts consist of transmissions in sound only but does not include a radio multiplex service (within the meaning of Part 3 of the Communications Act 2003) ;

• “spare capacity” shall be construed in accordance with section 114(2).

• (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.

• (2) Any reference in this Part to an area in the United Kingdom does not include an area which comprises or includes the whole of England; and nothing in this Part shall be read as precluding a local service from being provided for an area or locality that is to any extent comprised in the area or locality for which another local service is to be provided.

• (3) 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 IV — Transfer of Undertakings of IBA and Cable Authority

Transfer of undertakings

Division of assets of IBA and their dissolution

127

• (1) On such day as the Secretary of State may by order appoint as the transfer date there shall come into force a scheme made under Schedule 9 to this Act and providing for the division of the property, rights and liabilities of the IBA between—

• (a) the Commission,

• (b) the Radio Authority, and

• (c) a company nominated for the purposes of this subsection by the Secretary of State.

• (2) The Secretary of State may, by order made before the transfer date, nominate for the purposes of subsection (1) any company formed and registered under the Companies Act 1985; but on that date the company must be a company limited by shares which is wholly owned by the Crown.

• (3) Subject to subsection (4), the IBA shall continue in existence after the transfer date until such time as they are dissolved by order made by the Secretary of State.

• (4) On the transfer date the chairman and members of the IBA shall cease to hold office; and as from that date the IBA—

• (a) shall consist only of a chairman appointed by the Secretary of State and, if the Secretary of State thinks fit, such one or more other persons as the Secretary of State may appoint as members of the IBA; and

• (b) shall have only the functions which fall to be carried out by the IBA under or by virtue of Schedule 9.

• (5) If requested to do so by the chairman appointed under subsection (4)(a), the Commission shall furnish the IBA with any assistance required by them for the purpose of carrying out any of those functions.

• (6) The Secretary of State shall not make an order under subsection (3) unless he is satisfied, after consultation with the IBA and with each of the bodies referred to in subsection (1)(a) to (c), that nothing further remains to be done by the IBA under or by virtue of Schedule 9.

Vesting in Commission of assets of Cable Authority and dissolution of Authority

128

• (1) On the transfer date all the property, rights and liabilities to which the Cable Authority were entitled or subject immediately before that date shall become property, rights and liabilities of the Commission; and Schedule 10 to this Act shall have effect for the purpose of supplementing this and the following provisions of this section.

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

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

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

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

• (6) References in this Part to property, rights and liabilities of the Cable Authority include references to property, rights and liabilities which are not capable of being transferred or assigned by the Authority.

Transitional arrangements

Transitional arrangements relating to IBA’s broadcasting services

129

• (1) Schedule 11 to this Act shall have effect—

• (a) with respect to the provision by the Commission and the Welsh Authority, during the period beginning with the transfer date and ending with 31st December 1992, of television broadcasting services which have been provided by the IBA under the Broadcasting Act 1981 down to the transfer date;

• (b) for the purpose of the regulation by the Commission after the end of that period of services provided in succession to the DBS services provided by them during that period; and

• (c) in the case of local sound broadcasting services which have been provided by the IBA down to the transfer date—

• (i) with respect to the provision of such services on and after that date by the Radio Authority, and

• (ii) for the purpose of the regulation by that Authority on and after that date of services provided in succession to such services.

• (2) The programmes provided by a programme contractor under his contract for inclusion in any broadcasting service provided by the Commission or the Radio Authority in accordance with Part II or IV of Schedule 11 shall not be transmitted by, or under arrangements made by, the Commission or the Radio Authority (as the case may be) but shall be transmitted—

• (a) by the nominated company in pursuance of a contract made between that company and the programme contractor in accordance with section 130, or

• (b) under arrangements made in accordance with subsection (3)(a) of that section in a case where any such contract made between a DBS programme contractor and that company is terminated by the contractor as mentioned in that provision.

• (3) The programmes broadcast on Channel 4 and S4C respectively during the interim period in accordance with Part II of Schedule 11 shall not be transmitted by, or under arrangements made by, the Commission but shall be transmitted by the nominated company—

• (a) in the case of the programmes broadcast on Channel 4, in pursuance of such a contract made between that company and the Channel 4 company as is mentioned in subsection (4), and

• (b) in the case of the programmes broadcast on S4C, in pursuance of such a contract made between the nominated company and the Welsh Authority as is mentioned in subsection (6).

• (4) The contract referred to in subsection (3)(a) is a contract which makes provision for and in connection with the transmission by the nominated company during the interim period of the programmes to be broadcast on Channel 4 during that period, and in particular makes provision—

• (a) for specified standards relating to technical quality, coverage and reliability to be attained in connection with the transmission of those programmes by that company; and

• (b) for the transmission of those programmes to be suspended, if the Commission so direct in circumstances falling within subsection (5), for such period, or in the case of such programme or programmes, as they may specify.

• (5) The circumstances referred to in subsection (4)(b) are circumstances where the Commission consider it necessary to require the transmission of the programmes in question to be suspended in order for them to comply, or secure compliance, with the provisions of the Broadcasting Act 1981 (as it has effect in accordance with Part II of Schedule 11 to this Act) or with any restriction or requirement imposed thereunder.

• (6) The contract referred to in subsection (3)(b) is a contract which makes provision for and in connection with the transmission by the nominated company during the interim period of the programmes to be broadcast on S4C during that period, and in particular makes provision for specified standards relating to technical quality, coverage and reliability to be attained in connection with the transmission of those programmes by that company.

• (7) In the following provisions, namely—

• (a) Parts II and IV of Schedule 11 to this Act, and

• (b) any provision of the Broadcasting Act 1981 which is to be construed as referring to the Commission or to the Radio Authority by virtue of either of those Parts of that Schedule,

any reference (however expressed) to the broadcasting of programmes, or to programmes broadcast, by the Commission or the Radio Authority shall, in consequence of subsections (2) and (3) above, be read as a reference to the broadcasting of programmes, or to programmes broadcast, by that body whether the transmission of the programmes is undertaken (according to the circumstances of the case)—

• (i) by, or under arrangements made by, that body, or

• (ii) by the nominated company in pursuance of any such contract as is referred to in either of those subsections, or

• (iii) under any such arrangements as are referred to in subsection (2)(b);

and those Parts of that Schedule contain other modifications of provisions of that Act which are consequential on those subsections.

• (8) This section and section 130 shall have effect in relation to any teletext service provided by the Commission in accordance with Part II of Schedule 11 as if—

• (a) any reference to a programme or television programme were a reference to a teletext transmission; and

• (b) any reference to a programme contractor were a reference to a teletext contractor.

• (9) This section and section 130 shall, in so far as they apply to the transmission of the programmes provided by a DBS programme contractor under his contract for inclusion in any DBS service provided by the Commission in accordance with Part II of Schedule 11, be construed as applying only to the carrying on of such activities in connection with the transmission of those programmes as were being so carried on by the IBA immediately before the transfer date.

• (10) In this section—

• “the Channel 4 company” means the body corporate referred to in section 12(2) of the Broadcasting Act 1981, and “on Channel 4” means in the additional broadcasting service referred to in section 10(1) of that Act, but excluding so much of that service as consisted, immediately before the transfer date, in the broadcasting of programmes for reception wholly or mainly in Wales;

• “the interim period” means the period specified in subsection (1)(a) above;

• “on S4C” has the same meaning as in Part I of this Act.

• (11) The reference in subsection (4) or (6) to specified standards is a reference to such standards as the IBA shall specify for the purposes of that subsection before the transfer date.

Variation of programme contracts to take account of new transmission arrangements

130

• (1) Subject to subsections (2) and (4), it shall be the duty of the IBA to make before the transfer date such variations of each contract between them and a programme contractor (“the programme contract”) as appear to them to be appropriate—

• (a) for requiring the programme contractor to enter into a contract with the nominated company which makes provision for and in connection with the transmission by that company during the interim period of the programmes which the programme contractor has the right and the duty to provide under the programme contract, and in particular makes provision—

• (i) for specified standards relating to technical quality, coverage and reliability to be attained in connection with the transmission of those programmes by that company,

• (ii) for the transmission of those programmes to be suspended, if the relevant authority so direct in circumstances falling within subsection (5), for such period, or in the case of such programme or programmes, as they may specify, and

• (iii) where the programme contractor is a TV programme contractor, for the consideration payable in respect of the transmission of those programmes to be payable in accordance with subsection (6); and

• (b) for securing that the right and the duty of the programme contractor under the programme contract to provide those programmes is accordingly (so long as any such contract with the nominated company remains in force) a right and a duty to provide them for transmission by that company.

• (2) Subsection (1) shall apply to a contract for the provision of television programmes for broadcasting in a DBS service (“a DBS programme contract”) as if—

• (a) the reference to coverage in paragraph (a)(i) were omitted; and

• (b) for paragraph (a)(iii) there were substituted—

(iii) for the programme contractor to be entitled to terminate the contract if he is notified by the Commission that they are satisfied that the standards referred to in sub-paragraph (i) are not being attained as mentioned in that sub-paragraph;

.

• (3) The IBA shall, in the case of any DBS programme contract, make before the transfer date such variations of the contract as appear to them to be appropriate—

• (a) for requiring the DBS programme contractor, if he terminates his contract with the nominated company under any provision included in the contract in consequence of subsection (2)(b), to make such arrangements as the Commission may approve for and in connection with the transmission during the interim period of the programmes which he has the right and the duty to provide under the DBS programme contract, being arrangements under which—

• (i) specified standards relating to technical quality and reliability are to be attained in connection with the transmission of those programmes under the arrangements, and

• (ii) the transmission of those programmes is to be suspended, if the Commission so direct in circumstances falling within subsection (5), for such period, or in the case of such programme or programmes, as they may specify; and

• (b) for securing that the right and the duty of the programme contractor under the DBS programme contract to provide those programmes is accordingly (so long as any such arrangements remain in force) a right and a duty to provide them for transmission under the arrangements.

• (4) Subsection (1) shall apply to a contract for the provision of local sound broadcasts as if the reference to the interim period were a reference to the remainder of the period for which the contract continues in force by virtue of paragraph 2(1) in Part IV of Schedule 11; and that subsection accordingly does not apply to any such contract if—

• (a) the programme contractor notifies the IBA, before such date as they shall determine, that he proposes to request the Radio Authority to determine the contract as from the transfer date in accordance with paragraph 1(1) in Part V of that Schedule; or

• (b) the contract is one to which paragraph 2(1) in that Part of that Schedule would apply on the transfer date.

• (5) The circumstances referred to in paragraph (a)(ii) of subsection (1) or (3) are circumstances where the relevant authority or (as the case may be) the Commission consider it necessary to require the transmission of the programmes in question to be suspended—

• (a) in order for them to comply, or secure compliance, with the provisions of the Broadcasting Act 1981 (as it has effect in accordance with Schedule 11 to this Act) or with any restriction or requirement imposed thereunder, or

• (b) in view of any matter which they consider constitutes or would constitute a breach of the programme contractor’s contract.

• (6) The IBA shall make before the transfer date such variations of each contract between them and a TV programme contractor as appear to them to be appropriate for requiring the programme contractor to enter into an agreement with all of the other TV programme contractors which—

• (a) relates to the payment by those contractors to the nominated company of the consideration payable by them in respect of the transmission by that company of the programmes provided by them; and

• (b) provides for the amounts payable by each of the contractors to be such proportion of the total consideration so payable as corresponds to the proportion of the relevant amount which he was liable to pay by virtue of section 32(1)(a) of the Broadcasting Act 1981 (rental payments) in respect of the period beginning with 1st April 1990 and ending with the transfer date;

and in paragraph (b) “the relevant amount” means the aggregate amount of all payments falling to be made by TV programme contractors by virtue of section 32(1)(a) of that Act in respect of that period (excluding any payments falling to be so made in consequence of section 13(2) of that Act (advertisements on Channel 4)).

• (7) The IBA shall, in the case of each such contract as is mentioned in subsection (6), also make before the transfer date such variations of the contract as appear to them to be appropriate in consequence of section 129(3).

• (8) In this section—

• “the interim period” means the period specified in section 129(1)(a);

• “the relevant authority”—

• (a) in relation to any such contract as is mentioned in subsection (1)(a) which relates to the transmission of television programmes, means the Commission, and

• (b) in relation to any such contract which relates to the transmission of local sound broadcasts, means the Radio Authority;

and section 129(8) and (9) apply for the purposes of this section.

• (9) Any reference in subsection (1) or (3) to specified standards is a reference to such standards as the IBA shall specify for the purposes of that subsection before the transfer date; and different standards may be so specified for the purposes of subsection (1) in relation to programme contractors of different descriptions.

Supplementary provisions relating to variation of programme contracts

131

• (1) Where the IBA make any variation of a programme contract in pursuance of section 130(1) to (4) or (6), they may make such variations of that contract of a supplemental, incidental, consequential or transitional nature as they consider appropriate.

• (2) The relevant authority may on or after the transfer date make any variation of a programme contract which could have been made before that date by the IBA—

• (a) in pursuance of section 130(1) to (4), or

• (b) in pursuance of subsection (1) above in connection with any variation made in pursuance of section 130(1) to (4);

and any such variation may be made with retrospective effect as from that date.

• (3) Before making any variation of a programme contract in pursuance of any provision of section 130, this section or Schedule 11, the IBA or (as the case may be) the relevant authority shall consult the programme contractor concerned.

• (4) Any such variation shall be made by means of a notice served on that programme contractor.

• (5) In this section—

• “programme contract” means a contract between the IBA and a programme contractor;

• “programme contractor” includes a teletext contractor;

• “the relevant authority”—

• (a) in relation to a programme contract for the provision of television programmes or teletext transmissions, means the Commission; and

• (b) in relation to a programme contract for the provision of local sound broadcasts, means the Radio Authority.

Disposal by IBA of DBS transmitting equipment etc

132

• (1) The IBA shall have power, with the approval of the Secretary of State—

• (a) to dispose of any relevant assets to a DBS contractor; and

• (b) to do so on such terms and for such consideration as they may determine (whether or not any such consideration represents the market value of the assets).

• (2) Any disposal under subsection (1) shall take effect on the transfer date.

• (3) In this section “relevant asset” means any equipment or other asset (of whatever description) which has been used or held by the IBA in connection with the transmission of DBS services.

Functions exercisable by IBA before transfer date in connection with local sound broadcasting

133

• (1) It shall be the duty of the IBA to prepare before the transfer date, in the case of each relevant programme contractor, a contract which—

• (a) is expressed to be made between the nominated company and the contractor; and

• (b) is to come into force in accordance with subsection (3) at such time (if any) as the contractor becomes the holder of a local licence by virtue of paragraph 1(1) in Part V of Schedule 11 to this Act; and

• (c) makes provision in connection with the transmission, as from any such time, of the programmes included in the local service provided by the contractor (as the holder of such a licence), which may include provision for the transmission of those programmes by the nominated company.

• (2) For the purposes of subsection (1) the IBA shall, after consultation with all the relevant programme contractors, draw up a number of different standard forms of contract, and each contract prepared by them under that subsection shall be in such one of those forms as they may determine after consultation with the relevant programme contractor concerned.

• (3) Any contract prepared under subsection (1) shall by virtue of this subsection come into force, as a contract between the nominated company and the relevant programme contractor concerned, at any such time as is mentioned in paragraph (b) of that subsection and (subject to the provisions of the contract) shall continue in force for such period as is specified in it, being a period expiring not later than 31st December 1994.

• (4) If—

• (a) any contract prepared under subsection (1) has not yet come into force, and

• (b) the nominated company and the relevant programme contractor concerned agree that it would be more appropriate for them to be parties to a contract which is in one of the other forms of contract drawn up as mentioned in subsection (2), and

• (c) the nominated company prepares such a contract as is mentioned in subsection (1) which is in that other form,

subsection (3) shall have effect in relation to that contract as if it had been prepared by the IBA under subsection (1) (and accordingly shall not have effect in relation to the contract referred to in paragraph (a) above).

• (5) The IBA shall be deemed to have had power to impose such requirements as have been imposed by them on the various local sound programme contractors with respect to the making of payments to the IBA for the purpose of enabling reductions to be made in relevant charges; and in this subsection “relevant charges” means charges made by the nominated company in connection with the transmission, during the period beginning with the transfer date and ending with 31st December 1994, of programmes which are included in local services falling within any description of such services determined by the IBA.

• (6) The IBA shall have power, with the approval of the Secretary of State—

• (a) to dispose of, or of an interest in, any relevant assets to a relevant programme contractor; and

• (b) to do so on such terms and for such consideration as they may determine (whether or not any such consideration represents the market value of the assets).

• (7) In this section—

• “local licence” and “local service” have the same meaning as in Part III of this Act;

• “local sound programme contractor” means a person who is a programme contractor by virtue of a contract for the provision of local sound broadcasts;

• “relevant asset” means any equipment or other asset (of whatever description) which has been used or held by the IBA in connection with the transmission of local sound broadcasts;

• “relevant programme contractor” means the programme contractor under a contract which, if effective immediately before the transfer date, would be a contract to which paragraph 2(1) in Part IV of Schedule 11 applied.

Transitional arrangements relating to existing cable services

134

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

Provisions relating to nominated company

Initial Government holding in nominated company

135

• (1) As a consequence of the vesting in the nominated company, in accordance with the scheme made under Schedule 9 to this Act, of property, rights and liabilities of the IBA, that company shall issue to the Secretary of State such securities of the company as he may from time to time direct.

• (2) The Secretary of State shall not give a direction under subsection (1) at a time when the nominated company has ceased to be wholly owned by the Crown.

• (3) Securities required to be issued in pursuance of this section shall be issued at such time or times, and (subject to subsection (4)) on such terms, as the Secretary of State may direct.

• (4) Any shares issued in pursuance of this section—

• (a) shall be of such nominal value as the Secretary of State may direct; and

• (b) shall be issued as fully paid and treated for the purposes of the Companies Act 2006 as if they had been paid up by virtue of the payment to the nominated company of their nominal value in cash.

• (5) The Secretary of State shall not exercise any power conferred on him by this section, or dispose of any securities issued to him in pursuance of this section, without the consent of the Treasury.

• (6) Without prejudice to the generality of section 198(2), any dividends or other sums received by the Secretary of State in right of or on the disposal of any securities acquired by virtue of this section shall be paid into the Consolidated Fund.

Exercise of functions through nominees

136

• (1) The Secretary of State may, with the consent of the Treasury, appoint any person to act as his nominee, or one of his nominees, for the purposes of section 135; but any issue of securities to any such nominee in pursuance of that section shall be effected in accordance with such directions as may be given from time to time by the Secretary of State with the consent of the Treasury.

• (2) Any person holding any securities as a nominee of the Secretary of State by virtue of subsection (1) shall hold and deal with them (or any of them) on such terms and in such manner as the Secretary of State may direct with the consent of the Treasury.

Target investment limit for Government shareholding in nominated company

137

• (1) As soon as he considers it expedient, and in any case not later than six months after the nominated company ceases to be wholly owned by the Crown, the Secretary of State shall by order fix a target investment limit in relation to the aggregate of the shares for the time being held in the company, under or by virtue of any enactment, by any Minister of the Crown or any nominee of his (“the Government shareholding”).

• (2) The target investment limit for the Government shareholding in the company shall be expressed as a proportion of the voting rights which are exercisable in all circumstances at general meetings of the company (“the ordinary voting rights”).

• (3) The first target investment limit fixed under this section for the Government shareholding in the company shall be equal to the proportion of the ordinary voting rights which is in fact carried by the Government shareholding in the company at the time when the order fixing the limit is made.

• (4) The Secretary of State may from time to time by order fix a new target investment limit for the Government shareholding in the company in place of the one previously in force under this section; but—

• (a) any new limit must be lower than the one it replaces; and

• (b) an order under this section may only be revoked by an order fixing a new limit.

• (5) It shall be the duty of a Minister of the Crown so to exercise—

• (a) any power to dispose of any shares held in the company under or by virtue of any enactment, and

• (b) his power to give directions to any nominee of his,

as to secure that the Government shareholding in the company does not carry a proportion of the ordinary voting rights exceeding any target investment limit for the time being in force under this section.

• (6) Notwithstanding subsection (5), a Minister of the Crown may take up, or direct any nominee of his to take up, any rights for the time being available to him, or to the nominee, as an existing holder of shares or other securities of the company; but if, as a result, the proportion of the ordinary voting rights carried by the Government shareholding in the company at any time exceeds the target investment limit for the time being in force under this section, it shall be the duty of that Minister to comply with subsection (5) as soon after that time as is reasonably practicable.

• (7) References in this section to a Minister of the Crown include references to the Treasury; and for the purposes of this section the temporary suspension of any of the ordinary voting rights shall be disregarded.

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

Reserves of nominated company

138

• (1) If the Secretary of State so directs at any time before the nominated company ceases to be wholly owned by the Crown, such sums as may be specified in the direction shall, instead of being applied in any other way, be carried by the company to a reserve (“the statutory reserve”).

• (2) The statutory reserve may only be applied by the nominated company in paying up unissued shares of the company to be allotted to members of the company as fully paid bonus shares.

• (3) Notwithstanding subsection (2), the statutory reserve shall not count as an undistributable reserve of the nominated company for the purposes of section 831(4)(d) of the Companies Act 2006 (restriction on distribution of assets); but, for the purpose of determining under that section whether the nominated company may make a distribution at any time, any amount for the time being standing to the credit of the statutory reserve shall be treated for the purposes of section 831(4)(c) as if it were unrealised profits of the company.

Loans by Secretary of State to nominated company

139

• (1) As from the transfer date the Secretary of State may, with the consent of the Treasury, make loans to the nominated company out of money provided by Parliament; but no loan shall be made by him under this section at a time when the company has ceased to be wholly owned by the Crown.

• (2) The aggregate amount outstanding in respect of the principal of loans made by the Secretary of State under this section shall not exceed the limit specified in subsection (3).

• (3) That limit is £20 million or such greater sum, not exceeding £100 million, as the Secretary of State may from time to time specify by order made with the consent of the Treasury.

• (4) Any loan made by the Secretary of State under this section shall be repaid to him at such times and by such methods, and interest on the loan shall be paid to him at such times and at such rates, as he may from time to time direct with the consent of the Treasury.

• (5) An order shall not be made by the Secretary of State under this section unless a draft of it has been laid before and approved by a resolution of the House of Commons.

Temporary restriction on borrowings of nominated company

140

• (1) The aggregate amount outstanding in respect of the principal of any relevant borrowing of the nominated company shall not, at any time when the company is wholly owned by the Crown, exceed such sum as the Secretary of State may determine with the consent of the Treasury.

• (2) In subsection (1) “relevant borrowing”, in relation to the nominated company, means—

• (a) loans made to that company or to any subsidiary of that company, other than—

• (i) loans so made by any such subsidiary or (as the case may be) by that company, and

• (ii) loans made to that company by the Secretary of State under section 139; and

• (b) loans which are to be treated as having been made to that company, including loans which are to be treated as having been so made by virtue of the issue of debentures in pursuance of section 135.

General

Interpretation of Part IV

141

• (1) In this Part—

• “the Commission” means the Independent Television Commission;

• “debentures” includes debenture stock;

• “the IBA” means the Independent Broadcasting Authority;

• “the nominated company” means the company nominated for the purposes of section 127(1);

• “securities”, in relation to a company, includes shares, debentures, bonds and other securities of the company, whether or not constituting a charge on the assets of the company;

• “shares” includes stock;

• “subsidiary” has the meaning given by section 1159 of the Companies Act 2006;

• “the transfer date” means the day appointed under section 127(1).

• (2) Other expressions used in this Part which are also used in the Broadcasting Act 1981 have the same meaning as in that Act.

• (3) The nominated company shall be regarded for the purposes of this Part as wholly owned by the Crown at any time when each of the issued shares in the company is held by, or by a nominee of, the Secretary of State.

Part V — The Broadcasting Complaints Commission

The Broadcasting Complaints Commission

142

• (1) The commission which at the commencement of this section is known as the Broadcasting Complaints Commission (in this Part referred to as “the BCC”) shall continue in existence as a body corporate but shall be constituted in accordance with, and have the functions conferred by, this Part.

• (2) The BCC shall consist of not less than three members appointed by the Secretary of State.

• (3) The Secretary of State shall appoint one member of the BCC to be chairman, and may appoint another to be deputy chairman.

• (4) Schedule 13 to this Act shall have effect with respect to the BCC.

Function of BCC

143

• (1) Subject to the provisions of this Part, the function of the BCC shall be to consider and adjudicate upon complaints of—

• (a) unjust or unfair treatment in programmes to which this Part applies, or

• (b) unwarranted infringement of privacy in, or in connection with the obtaining of material included in, such programmes.

• (2) This Part applies to—

• (a) any television or sound programme broadcast by the BBC on or after such date as is specified in an order made by the Secretary of State for the purposes of this subsection;

• (b) any television programme broadcast by the Welsh Authority on or after that date; and

• (c) any television or sound programme included, on or after that date, in a licensed service.

Making and entertaining of complaints

144

• (1) Complaints must be made in writing.

• (2) A complaint may be made by an individual or by a body of persons, whether incorporated or not, but, subject to subsection (3), shall not be entertained by the BCC unless made by the person affected or by a person authorised by him to make the complaint for him.

• (3) Where the person affected is an individual who has died or is for any other reason both unable to make a complaint himself and unable to authorise another person to do so for him, a complaint may be made by the personal representative of the person affected, or by a member of his family, or by some other person or body closely connected with him (whether as his employer, or as a body of which he is or was at his death a member, or in any other way).

• (4) The BCC shall not entertain, or proceed with the consideration of, a complaint if it appears to them—

• (a) that the complaint relates to the broadcasting of the relevant programme, or to its inclusion in a licensed service, on an occasion more than five years after the death of the person affected, or

• (b) that the unjust or unfair treatment or unwarranted infringement of privacy complained of is the subject of proceedings in a court of law in the United Kingdom, or

• (c) that the unjust or unfair treatment or unwarranted infringement of privacy complained of is a matter in respect of which the person affected has a remedy by way of proceedings in a court of law in the United Kingdom, and that in the particular circumstances it is not appropriate for the BCC to consider a complaint about it, or

• (d) that the complaint is frivolous,

or if it appears to them for any other reason inappropriate for them to entertain, or proceed with the consideration of, the complaint.

• (5) The BCC may refuse to entertain a complaint if it appears to them not to have been made within a reasonable time after the last occasion on which the relevant programme was broadcast or, as the case may be, included in a licensed service.

• (6) Where, in the case of a complaint, the relevant programme was broadcast or included in a licensed service within five years after the death of the person affected, subsection (5) shall apply as if at the end there were added “within five years after the death of the person affected”.

• (7) The BCC may refuse to entertain—

• (a) a complaint of unjust or unfair treatment if the person named as the person affected was not himself the subject of the treatment complained of and it appears to the BCC that he did not have a sufficiently direct interest in the subject-matter of that treatment to justify the making of a complaint with him as the person affected; or

• (b) a complaint made under subsection (3) by a person other than the person affected or a person authorised by him, if it appears to the BCC that the complainant’s connection with the person affected is not sufficiently close to justify the making of the complaint by him.

Consideration of complaints

145

• (1) Subject to the provisions of section 144, every complaint made to the BCC shall be considered by them either at a hearing or, if they think fit, without a hearing.

• (2) Hearings under this section shall be held in private; and where such a hearing is held in respect of a complaint, each of the following persons shall be given an opportunity to attend and be heard, namely—

• (a) the complainant;

• (b) the relevant person;

• (c) where the relevant programme was included in a licensed service, the appropriate regulatory body;

• (d) any person not falling within any of paragraphs (a) to (c) who appears to the BCC to have been responsible for the making or provision of that programme; and

• (e) any other person who the BCC consider might be able to assist at the hearing.

• (3) Before they proceed to consider a complaint the BCC shall send a copy of it—

• (a) to the relevant person, and

• (b) where the relevant programme was included in a licensed service, to the appropriate regulatory body.

• (4) Where the relevant person receives from the BCC a copy of the complaint, it shall be the duty of that person, if so required by the BCC—

• (a) to provide the BCC with a visual or sound recording of the relevant programme or of any specified part of it, if and so far as the relevant person has such a recording in his possession;

• (b) to make suitable arrangements for enabling the complainant to view or hear the relevant programme, or any specified part of it, if and so far as the relevant person has in his possession a visual or sound recording of it;

• (c) to provide the BCC and the complainant with a transcript of so much of the relevant programme, or of any specified part of it, as consisted of speech, if and so far as the relevant person is able to do so;