Communications Act 2003

that agreement, document, process or instrument shall have effect so far as necessary for the purposes of the transfers effected by the scheme and in consequence of them, as referring instead to the person mentioned in sub-paragraph (5).

• (5) That person is—

• (a) the person nominated for the purposes of the transfer by OFCOM; or

• (b) in default of a nomination, the member or employee of OFCOM who most closely corresponds to the member or officer originally referred to.

• (6) Nothing in sub-paragraph (3) or (4) is to apply in relation to any reference in an enactment or in subordinate legislation.

Retrospective modification of a transfer scheme

3

• (1) If at any time after the coming into force of a transfer scheme it appears to the Secretary of State that it is appropriate to do so, he may by order provide for the scheme to be deemed to have come into force with such modifications (including modifications retrospective to the time of the coming into force of the scheme) as may be provided for in the order.

• (2) The power under this paragraph to provide by order for the modification of a transfer scheme shall be exercisable for the purpose only of making provision that could have been made by the scheme.

• (3) Before making an order under this paragraph the Secretary of State must consult OFCOM.

Compensation

4

• (1) Where, in consequence of any provision included in a transfer scheme, the interests, rights or liabilities of a third party are modified as mentioned in sub-paragraph (2), the third party is to be entitled to such compensation as may be just in respect of—

• (a) any diminution in the value of any of his interests or rights, or

• (b) any increase in the burden of his liabilities,

which is attributable to that modification.

• (2) The modifications mentioned in sub-paragraph (1) are modifications by virtue of which—

• (a) an interest of the third party in any property is transformed into, or replaced by—

• (i) an interest in only part of that property; or

• (ii) separate interests in different parts of that property;

• (b) a right of the third party against any of the pre-commencement regulators or against the Secretary of State is transformed into, or replaced by, two or more rights which do not include a right which, on its own, is equivalent (disregarding the person against whom it is enforceable) to the right against that regulator or (as the case may be) against the Secretary of State; or

• (c) a liability of the third party to any of the pre-commencement regulators or to the Secretary of State is transformed into, or replaced by, two or more separate liabilities at least one of which is a liability enforceable by a person other than the person by whom it was enforceable before being so transformed.

• (3) Where—

• (a) a third party would, apart from any provision of a transfer scheme, have become entitled to, or to exercise, any interest or right arising or exercisable in respect of the transfer or creation in accordance with such a scheme of any property, rights or liabilities, and

• (b) the provisions of that scheme have the effect of preventing that person’s entitlement to, or to exercise, that interest or right from arising on any occasion in respect of anything mentioned in paragraph (a), and

• (c) provision is not made by a transfer scheme for securing that an entitlement to, or to exercise, that interest or right or an equivalent interest or right, is preserved or created so as to arise in respect of the first occasion when corresponding circumstances next occur after the coming into force of the transfers for which the scheme provides,

the third party is to be entitled to such compensation as may be just in respect of the extinguishment of the interest or right.

• (4) A liability to pay compensation under this paragraph shall fall on the persons mentioned in sub-paragraph (5) who (as the case may be)—

• (a) have interests in the whole or any part of the property affected by the modification in question,

• (b) are subject to the rights of the person to be compensated which are affected by the modification in question,

• (c) are entitled to enforce the liabilities of the person to be compensated which are affected by that modification, or

• (d) benefit from the extinguishment of the entitlement mentioned in sub-paragraph (3),

and that liability shall be apportioned between those persons in such manner as may be appropriate having regard to the extent of their respective interests, rights or liabilities or the extent of the benefit they respectively obtain from the extinguishment.

• (5) Those persons are the pre-commencement regulators and the Secretary of State.

• (6) Sub-paragraph (4) shall have effect subject to so much of any transfer scheme (including the one that gives rise to the liability) as makes provision for the transfer of any liability under that sub-paragraph to OFCOM.

• (7) Any dispute as to whether, or as to the person by whom, any compensation is to be paid under this paragraph, and any dispute as to the amount of compensation to be paid by a person, shall be referred to and determined—

• (a) where the claimant requires the matter to be determined in England and Wales or in Northern Ireland, by an arbitrator appointed by the Lord Chancellor, or

• (b) where the claimant requires the matter to be determined in Scotland, by an arbiter appointed by the Lord President of the Court of Session.

• (8) In this paragraph “third party”, in relation to provisions capable of giving rise to compensation under this paragraph, means any person other than—

• (a) a pre-commencement regulator; and

• (b) the Secretary of State.

Stamp duty

5

• (1) Stamp duty is not to be chargeable—

• (a) on a transfer scheme; or

• (b) on an instrument or agreement certified by the Secretary of State to the Commissioners of Inland Revenue as made for the purposes of a transfer scheme, or as made for purposes connected with such a scheme.

• (2) But a transfer scheme, or an instrument or agreement so certified, is to be treated as duly stamped only if—

• (a) in accordance with section 12 of the Stamp Act 1891 (c. 39) it has been stamped with a stamp denoting either that it is not chargeable to duty or that it has been duly stamped; or

• (b) it is stamped with the duty to which it would be chargeable apart from this paragraph.

Interpretation of Schedule

6

In this Schedule “transfer scheme” means a scheme made by a pre-commencement regulator or by the Secretary of State under section 30.

SCHEDULE 3

Introductory

1

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

Meaning of conduit system and electronic communications apparatus, network or service

2

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

Meaning of operator and operator’s system

3

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

Provision of a conduit system

4

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

General amendments

5

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

Power to fly lines

6

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

Power to require alteration of apparatus

7

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

Undertaker’s works

8

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

Notices under the code

9

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

Application of code to the Crown

10

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

Effect of agreements concerning sharing of apparatus

11

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

SCHEDULE 4

Interpretation

1

In this Schedule—

• “code operator” means a provider of an electronic communications network in whose case the electronic communications code is applied by a direction under section 106; and

• “the operator’s network”, in relation to a code operator, means so much of the electronic communications network provided by the operator as is not excluded from the application of the electronic communications code under section 106(5).

General duties with respect to powers under Schedule

2

In exercising his powers under this Schedule it shall be the duty of the Secretary of State to have regard, in particular, to each of the following—

• (a) the duties imposed on OFCOM by sections 3 and 4;

• (b) the need to protect the environment and, in particular, to conserve the natural beauty and amenity of the countryside;

• (c) the need to ensure that highways are not damaged or obstructed, and traffic not interfered with, to any greater extent than is reasonably necessary;

• (d) the need to encourage the sharing of the use of electronic communications apparatus.

Compulsory purchase of land: England and Wales

3

• (1) Subject to sub-paragraph (2), the Secretary of State may authorise a code operator to purchase compulsorily any land in England and Wales which is required by the operator—

• (a) for, or in connection with, the establishment or running of the operator’s network; or

• (b) as to which it can reasonably be foreseen that it will be so required.

• (2) No order is to be made authorising a compulsory purchase under this paragraph by a code operator except with OFCOM’s consent.

• (3) This power to purchase land compulsorily includes power to acquire an easement or other right over land by the creation of a new right.

• (4) The Acquisition of Land Act 1981 (c. 67) is to apply to any compulsory purchase under this paragraph as if the code operator were a local authority within the meaning of that Act.

• (5) The provisions of the Town and Country Planning Act 1990 (c. 8) specified in sub-paragraph (6) have effect in relation to land acquired compulsorily by a code operator under this paragraph as they have effect in relation to land acquired compulsorily by statutory undertakers.

• (6) Those provisions are—

• (a) sections 238 to 240 (use and development of consecrated land and burial ground);

• (b) section 241 (use and development of land for open spaces); and

• (c) sections 271 to 274(extinguishment of rights of way, and rights as to apparatus, of statutory undertakers).

• (7) Where a code operator has acquired land under this paragraph, he must not dispose of that land, or of an interest or right in or over it, except with OFCOM’s consent.

Compulsory purchase of land: Scotland

4

• (1) Subject to sub-paragraph (2), the Secretary of State may authorise a code operator to purchase compulsorily any land in Scotland which is required by the operator—

• (a) for, or in connection with, the establishment or running of the operator’s network; or

• (b) as to which it can reasonably be foreseen that it will be so required.

• (2) No order is to be made authorising a compulsory purchase under this paragraph except with OFCOM’s consent.

• (3) This power to purchase land compulsorily includes power to acquire a servitude or other right over land by the creation of a new right.

• (4) The Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947 (c. 42) applies to any compulsory purchase under this paragraph as if—

• (a) the code operator were a local authority within the meaning of that Act; and

• (b) this paragraph had been in force immediately before the commencement of that Act.

• (5) The provisions of the Town and Country Planning (Scotland) Act 1997 (c. 8) specified in sub-paragraph (6) have effect in relation to land acquired compulsorily by a code operator under this paragraph as they have effect in relation to land acquired compulsorily by statutory undertakers.

• (6) Those provisions are—

• (a) section 197 (provisions as to churches and burial grounds);

• (b) section 198 (use and development of land for open spaces); and

• (c) sections 224 to 227 (extinguishment of rights of way, and rights as to apparatus, of statutory undertakers).

• (7) Where a code operator has acquired land under this paragraph, he must not dispose of that land, or of any interest or right in or over it, except with OFCOM’s consent.

Compulsory purchase of land: Northern Ireland

5

• (1) Where a code operator proposes to acquire, otherwise than by agreement, any land in Northern Ireland required by him—

• (a) for, or in connection with, the establishment or running of the operator’s network, or

• (b) as to which it can reasonably be foreseen that it will be so required,

he may, with OFCOM’s consent, apply to the Secretary of State for an order vesting that land in him.

• (2) On such an application the Secretary of State is to have power to make such an order.

• (3) This power to acquire land compulsorily includes power to acquire an easement or other right over land by the creation of a new right.

• (4) Where a code operator has acquired land under this paragraph, he must not dispose of that land, or of any interest or right in or over it, except with OFCOM’s consent.

• (5) The following provisions—

• (a) Schedule 6 to the Local Government Act (Northern Ireland) 1972 (c. 9 (N.I.)) (acquisition of land by vesting order), and

• (b) Schedule 8 to the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14)) (provisions as to inquiries),

have effect for the purposes of the acquisition of land by means of a vesting order under this paragraph as they have effect for the purposes of that Act and that Order but subject to the modifications set out in sub-paragraph (6).

• (6) Those modifications are—

• (a) for any reference to the Department substitute a reference to the Secretary of State;

• (b) for any reference to the Act or Order in question substitute a reference to this Act;

• (c) for any reference in Schedule 6 to the Local Government Act (Northern Ireland) 1972 to a council substitute a reference to the code operator;

• (d) in paragraph 6(2) of that Schedule, for the words from “the fund” onwards substitute “ funds of the code operator (in this Schedule referred to as “the compensation fund”) and shall be discharged by payments made by the code operator ”; and

• (e) in paragraph 12(2) of that Schedule for “the clerk of the council” substitute “ such person as may be designated for the purposes of this Schedule by the code operator ”.

• (7) The enactments for the time being in force relating to the assessment of compensation in respect of land vested in a district council by an order made under Schedule 6 to the Local Government Act (Northern Ireland) 1972 are to apply, subject to any necessary modifications, in relation to land vested in a code operator by an order made under this paragraph.

• (8) In this paragraph, “land” has the meaning assigned to it by section 45(1)(a) of the Interpretation Act (Northern Ireland) 1954 (c. 33 (N.I.)).

Entry on land for exploratory purposes: England and Wales

6

• (1) A person—

• (a) nominated by a code operator, and

• (b) duly authorised in writing by the Secretary of State,

may, at any reasonable time, enter upon and survey land in England and Wales for the purpose of ascertaining whether the land would be suitable for use by the code operator for, or in connection with, the establishment or running of the operator’s network.

• (2) This paragraph does not apply in relation to land covered by buildings or used as a garden or pleasure ground.

• (3) Sections 324(8) and 325(1) to (5), (8) and (9) of the Town and Country Planning Act 1990 (c. 8) (supplementary provisions relating to powers of entry) have effect in relation to the power conferred by this paragraph—

• (a) as they have effect in relation to the powers conferred by section 324 of that Act; but

• (b) subject to the modifications set out in sub-paragraph (4).

• (4) Those modifications are—

• (a) in section 324(8) (power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals) omit “or the presence of minerals therein”; and

• (b) in section 325(1) (24 hours' notice to be given of an intended entry upon occupied land) for “24 hours” substitute “ 28 days ”.

• (5) Where, in an exercise of the power conferred by this paragraph, any damage is caused to land or to chattels, the code operator must—

• (a) make good the damage; or

• (b) pay compensation in respect of the damage to every person interested in the land or chattels.

• (6) Where, in consequence of an exercise of the power conferred by this paragraph, a person is disturbed in his enjoyment of land or chattels, the code operator must pay that person compensation in respect of the disturbance.

• (7) Section 118 of the Town and Country Planning Act 1990 (c. 8) (determination of disputes as to compensation) applies to any question of disputed compensation under this paragraph as it applies to such questions under Part 4 of that Act.

Entry on land for exploratory purposes: Scotland

7

• (1) A person—

• (a) nominated by a code operator, and

• (b) duly authorised in writing by the Secretary of State,

may, at any reasonable time, enter upon and survey any land in Scotland for the purpose of ascertaining whether the land would be suitable for use by the code operator for, or in connection with, the establishment or running of the operator’s network.

• (2) This paragraph does not apply in relation to land covered by buildings or used as a garden or pleasure ground.

• (3) Sections 269(6) and 270(1) to (5), (8) and (9) of the Town and Country Planning (Scotland) Act 1997 (c. 8) (supplementary provisions relating to powers of entry) have effect in relation to the power conferred by this paragraph—

• (a) as they have effect in relation to the powers conferred by section 269 of that Act; but

• (b) subject to the modifications set out in sub-paragraph (4).

• (4) Those modifications are—

• (a) in section 269(6) (power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals), omit “or the presence of minerals therein”; and

• (b) in section 270(1) (24 hours' notice to be given of an intended entry upon occupied land) for “24 hours” substitute “ 28 days ”.

• (5) Where, in an exercise of the power conferred by this paragraph, damage is caused to land or to corporeal moveables, the code operator must—

• (a) make good the damage; or

• (b) pay compensation in respect of the damage to every person interested in the land or corporeal moveables.

• (6) Where, in consequence of an exercise of the power conferred by this paragraph, a person is disturbed in his enjoyment of any land or corporeal moveables, the code operator must pay that person compensation in respect of the disturbance.

• (7) A dispute arising under this paragraph—

• (a) as to the effect of damage, or

• (b) as to the amount of compensation,

must be determined by arbitration by a single arbiter appointed by agreement between the parties or, in default of an agreement, by the Secretary of State.

Entry on land for exploratory purposes: Northern Ireland

8

• (1) A person—

• (a) nominated by a code operator, and

• (b) duly authorised in writing by the Secretary of State,

may, at any reasonable time, enter upon and survey any land in Northern Ireland for the purpose of ascertaining whether the land would be suitable for use by the code operator for, or in connection with, the establishment or running of the operator’s network.

• (2) This paragraph does not apply in relation to land covered by buildings or used as a garden or pleasure ground.

• (3) Subsections (2) to (5) and (8) of section 40 of the Land Development Values (Compensation) Act (Northern Ireland) 1965 (c. 23 (N.I.)) (supplementary provisions relating to powers of entry) have effect in relation to the power of entry conferred by this paragraph—

• (a) as they have effect in relation to the power conferred by that section; but

• (b) subject to the modifications set out in sub-paragraph (4).

• (4) Those modifications are—

• (a) in section 40(2) (power to search and bore for the purpose of ascertaining the nature of the subsoil or the presence of minerals) omit “or the presence of minerals therein”; and

• (b) in section 40(3)(b) (three days' notice to be given of an intended entry upon occupied land) for the word “three” substitute “ twenty eight ”.

• (5) Where, in an exercise of the power conferred by this paragraph, damage is caused to land or to chattels, the code operator must—

• (a) make good the damage; or

• (b) pay compensation in respect of the damage to every person interested in the land or chattels.

• (6) Where, in consequence of an exercise of the power conferred by this paragraph, a person is disturbed in his enjoyment of any land or chattels, the code operator must pay that person compensation in respect of the disturbance.

• (7) Section 31 of the Land Development Values (Compensation) Act (Northern Ireland) 1965 (determination of disputes as to compensation) applies to any question of disputed compensation under this paragraph as it applies to such questions under Part 3 of that Act.

Acquisition of land by agreement

9

• (1) For the purpose of the acquisition by agreement by a code operator of land in England and Wales, the provisions of Part 1 of the Compulsory Purchase Act 1965 (c. 56) (so far as applicable), other than sections 4 to 8 (time limits, notices to treat etc.) and section 31 (ecclesiastical property), apply as they apply for the purposes of that Act.

• (2) For the purpose of the acquisition by agreement by a code operator of land in Scotland, section 109(2) of the Town and Country Planning (Scotland) Act 1972 (c. 52) (incorporation of Lands Clauses Acts) applies, with any necessary modifications, for the purposes of this Act as it applies for the purposes of that Act.

• (3) For the purpose of the acquisition by agreement by a code operator of land in Northern Ireland, the Lands Clauses Acts, except for sections 127 to 132 (sale of superfluous land) and sections 150 and 151 (access to the special Act) of the Lands Clauses Consolidation Act 1845 (c. 18), apply as they apply for the purposes of those Acts.

SCHEDULE 5

General procedure for applications

1

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

Information to be provided in connection with applications

2

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

Notice of proposed refusal of application

3

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

Duration of grant

4

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

Revocation or modification

5

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

Notice of proposed revocation or modification

6

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

Restriction on powers of revocation and modification

7

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

Interpretation

8

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

SCHEDULE 6

Offences to which this Schedule applies

1

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

Fixed penalties and fixed penalty notices

2

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

Issuing of fixed penalty notice

3

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

Content of fixed penalty notice

4

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

Withdrawal of fixed penalty notice

5

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

Notification to person to whom payment is to be made

6

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

Effect of fixed penalty notice

7

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

Payment of fixed penalty

8

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

Effect of payment

9

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

Service of statement and proof of service

10

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

Certificate about payment

11

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

Regulations

12

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

Interpretation

13

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

SCHEDULE 7

Application of Schedule

1

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

Notice of seizure

2

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

Notice of claim

3

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

4

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

Condemnation

5

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

6

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

7

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

Proceedings for condemnation by court

8

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

9

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

10

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

11

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

12

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

Disposal of unclaimed property

13

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

Provisions as to proof

14

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

15

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

Special provisions as to certain claimants

16

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

Saving for owner’s rights

17

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

SCHEDULE 8

Prosecutions and civil proceedings

1

A decision to institute, bring or carry on any criminal or civil proceedings.

2

A decision (other than one under section 119) to take preliminary steps for the purpose of enabling any such proceedings to be instituted.

This Act

3

A decision relating to the making or revision of a statement under section 38.

4

A decision required to be published in a notification under section 44(4).

5

A decision given effect to by an order under section 55.

6

A decision given effect to by regulations under section 66.

7

A decision given effect to by regulations under section 71 or under section 71(4) to (7) as applied by section 72H(4).

8

A decision required to be published in a notification under section 108(4).

9

A decision given effect to by an order under section 122.

10

A decision relating to the making or revision of a statement under section 131.

11

A decision given effect to by an order under section 134(6).

12

A decision relating to the making or revision of a statement under section 145.

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

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

Wireless Telegraphy Act 1949

27

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

28

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

29

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

30

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

31

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32

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Wireless Telegraphy Act 1998

33

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34

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35

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36

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SCHEDULE 9

Notification of requirement to submit proposals

1

• (1) It shall be the duty of OFCOM to give a notification under this paragraph to C4C—

• (a) as soon as practicable after the commencement of this Schedule,

• (aa) as soon as practicable after the day on which section 198A comes into force,

• (ab) as soon as practicable after the day on which section 3 of the Media Act 2024 comes into force, and

• (b) as soon as practicable in the last twelve months preceding each date on which the replacement licence granted in accordance with section 231 would expire if not renewed.

• (2) A notification under this paragraph is one requiring C4C to submit proposals to OFCOM in accordance with this Schedule for the relevant licence period.

• (3) A notification under this paragraph must specify the period within which C4C must submit their proposals.

• (4) The period specified under sub-paragraph (3) must be a period ending not less than three months after the day of the giving of the notification.

Submission of proposed arrangements

2

• (1) This paragraph applies where C4C have received a notification under paragraph 1.

• (2) C4C must, within the period set out in the notification, submit proposals to OFCOM for the arrangements under which they are proposing to secure, so far as reasonably practicable, that all significant risks that their other activities will have an adverse effect on the carrying out, during the relevant licence period, of their primary functions are—

• (a) identified;

• (b) evaluated; and

• (c) properly managed.

• (3) The proposals must include proposals for the arrangements that C4C consider appropriate for securing the transparency objectives during the relevant licence period.

• (4) For the purposes of this Schedule the transparency objectives are—

• (a) an appropriate financial and organisational separation between the activities of C4C that relate to the carrying out of their primary functions and their other activities; and

• (b) an appropriate degree of transparency in financial and other reporting where resources are shared between separated activities or where there is some other financial or practical connection between otherwise separated activities.

• (5) The matters to which the proposals submitted under this paragraph may relate include, in particular, the procedures and other practices to be followed by C4C in the case of—

• (a) the initiation and management of new ventures;

• (b) the exercise of particular powers;

• (c) the assessment of risks;

• (d) the imposition of charges; and

• (e) the keeping of records.

• (6) The determination of what is appropriate for the purposes of sub-paragraphs (3) and (4) is not to be confined to a determination of what is appropriate for securing the matters mentioned in sub-paragraph (2).

• (7) The arrangements proposed by C4C must contain provision for compliance with the arrangements to be checked regularly by a person appointed in accordance with that provision.

• (8) That person must be a person other than the person for the time being holding an appointment for the purposes of paragraph 12(2) of Schedule 3 to the 1990 Act (C4C’s auditor).

Consideration and approval of proposals

3

• (1) OFCOM must consider every proposal or revised proposal submitted to them by C4C under paragraph 2 or this paragraph and may do one of the following—

• (a) approve the proposed arrangements;

• (b) approve them with such modifications as they may notify to C4C;

• (c) require C4C to submit revised proposals in accordance with directions given by OFCOM.

• (2) Before—

• (a) making modifications of proposed arrangements for the purpose of approving them, or

• (b) requiring the submission of revised proposals,

OFCOM must consult C4C.

Duration of approval and modification of arrangements

4

• (1) Arrangements approved under this Schedule are to remain in force (subject to the following provisions of this paragraph) throughout the licence period to which they relate.

• (2) The arrangements for the time being approved under this Schedule for any licence period may be modified, by agreement between OFCOM and C4C, at any time during the licence period for which they apply.

• (3) OFCOM may carry out a review of the arrangements for the time being approved under this Schedule.

• (4) The reviews that may be carried out under this paragraph in any one licence period are confined to either—

• (a) one review relating to all the arrangements; or

• (b) two reviews carried out at separate times as follows—

• (i) one (whether the first or second) relating to the arrangements for securing the transparency objectives; and

• (ii) the other relating to other matters.

• (5) On a review under this paragraph, OFCOM may require C4C to submit proposals for modifying the arrangements for the time being approved under this Schedule so far as they relate to the matters under review.

• (6) Paragraph 3 applies where proposals are submitted to OFCOM under sub-paragraph (5) as it applies where they are submitted under paragraph 2.

Publication of approved arrangements

5

• (1) OFCOM must publish all arrangements approved by them under this Schedule.

• (2) The publication of anything under this paragraph must be in such manner as OFCOM consider appropriate for bringing it to the attention of members of the public.

Duty of C4C to act in accordance with the approved arrangements

6

It shall be the duty of C4C to act in accordance with the arrangements for the time being in force under this Schedule.

nforcement of duties

7

• (1) This paragraph applies to—

• (a) every duty of C4C under this Schedule to submit proposals to OFCOM; and

• (b) the duty imposed on C4C by paragraph 6.

• (2) Each of those duties shall be enforceable in civil proceedings by OFCOM—

• (a) for an injunction;

• (b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988 (c. 36); or

• (c) for any other appropriate remedy or relief.

Penalty for contravention of the arrangements

8

• (1) OFCOM may impose a penalty on C4C if C4C have contravened—

• (a) a requirement of this Schedule to submit proposals to OFCOM;

• (b) a requirement of arrangements for the time being approved under this Schedule.

• (2) The amount of the penalty must not exceed 3 per cent. of C4C’s qualifying revenue for their last complete accounting period before the contravention.

• (3) Before imposing a penalty on C4C under this paragraph OFCOM must give C4C a reasonable opportunity of making representations to OFCOM about their proposal to impose the penalty.

• (4) Where OFCOM impose a penalty on C4C under this paragraph, they shall—

• (a) notify C4C; and

• (b) in that notification, fix a reasonable period after it is given as the period within which the penalty is to be paid.

• (5) In the case of a continuing contravention—

• (a) separate penalties may be imposed in respect of different periods during which the contravention continues;

• (b) the notification of the penalty must specify the period in respect of which the penalty is imposed; and

• (c) the reference in sub-paragraph (2) to the last complete accounting period before the contravention is a reference to the last complete accounting period before the end of the period in respect of which the penalty is imposed.

• (6) A penalty imposed under this paragraph must be paid to OFCOM within the period fixed by them.

• (7) Section 18A of the 1990 Act, with any necessary modifications, has effect in relation to C4C for the purposes of this paragraph as it has effect in relation to the holder of a Channel 3 licence for the purposes of Part 1 of the 1990 Act; and Part 1 of Schedule 7 to the 1990 Act has effect as if C4C’s qualifying revenue for an accounting period were being ascertained for the purposes of a provision of Part 1 of the 1990 Act.

OFCOM’s duty to take account of need to support C4C’s primary functions

9

In exercising their powers under this Schedule OFCOM must have regard, in particular, to the need to secure, so far as practicable, that all significant risks that C4C’s other activities will have an adverse effect on the carrying out of their primary functions are—

• (a) identified;

• (b) evaluated; and

• (c) properly managed.

Interpretation of Schedule

10

In this Schedule—

• “arrangements” means arrangements about the procedures and other practices to be followed by C4C and about other matters connected with the carrying on by them of any of their activities;

• “licence period” means—the period for which the replacement licence is granted to C4C in accordance with section 231; orany subsequent period for which it is renewed;

• “primary functions” is to be construed in accordance with section 199(2);

• “relevant licence period”—in relation to the first notification to be given under paragraph 1, the licence period mentioned in paragraph (a) of the definition of that period;in relation to the notification under paragraph 1(1)(aa), the period beginning on the day on which section 198A comes into force and ending on the last day of the first licence period to expire after that day; andin relation to any other notification under paragraph 1 , the first licence period to begin after the giving of the notification;

• “transparency objectives” is to be construed in accordance with paragraph 2(4).

SCHEDULE 10

Part 1 — Applications for and award of licence

Notice of proposal to grant licence

1

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

Guidance as to applications

2

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Applications for the licence

3

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Notice inviting public representations

4

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Determination of applications

5

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Revocation of award

6

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Part 2 — Conditions and enforcement of licence

Payments to be made in respect of the public teletext service

7

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Corrections and statements of findings by the public teletext provider

8

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Enforcement of the licence for the public teletext service

9

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Power to shorten licence period

10

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Revocation for contravention of condition or direction

11

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Penalty on revocation

12

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Power to modify penalties in paragraph 12

13

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Part 3 — Interpretation of Schedule

14

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15

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SCHEDULE 11

Application of Schedule

1

• (1) This Schedule applies where OFCOM’s approval of networking arrangements entered into by the holders of regional Channel 3 licences is required—

• (a) for the purposes of conditions included in regional Channel 3 licences in accordance with section 291; or

• (b) in order for networking arrangements made by OFCOM to cease to have effect in accordance with section 292.

• (2) This Schedule also has effect as respects—

• (a) the imposition by OFCOM under section 292 of networking arrangements;

• (b) the modification of such arrangements following a review under section 293; and

• (c) the making of proposals for modifications of networking arrangements following such a review.

Approval required for modifications

2

• (1) Where networking arrangements are approved by OFCOM for purposes mentioned in paragraph 1(1), those arrangements are not to be modified unless OFCOM have approved the modifications in accordance with this Schedule.

• (2) This paragraph does not apply to modifications proposed by OFCOM under section 293.

Procedure for giving approval

3

• (1) This paragraph applies where arrangements or modifications are submitted to OFCOM for their approval.

• (2) OFCOM must publish a description of the arrangements or modifications that have been submitted.

• (3) The publication must be in such manner as OFCOM consider appropriate for bringing the matters published to the attention of the persons who, in OFCOM’s opinion, are likely to be affected by the arrangements or modifications.

• (4) After allowing a reasonable time after the publication for the making of representations, OFCOM must consider the arrangements or modifications and decide whether or not to approve them.

Decision of OFCOM whether or not to approve arrangements or modifications

4

• (1) The decision made by OFCOM under paragraph 3(4) has to be one of the following—

• (a) a decision to approve the arrangements or modifications unconditionally;

• (b) a decision to give a conditional approval to the arrangements or modifications;

• (c) a decision to refuse approval.

• (2) A conditional approval is one that has effect only if effect is given, in relation to the proposed arrangements or modifications, to changes proposed by OFCOM.

• (3) Before deciding to give a conditional approval, OFCOM must consult every holder of a regional Channel 3 licence about the changes they are proposing.

• (4) When OFCOM have made their decision, they must prepare a report setting out—

• (a) their decision; and

• (b) their reasons for that decision.

• (5) OFCOM must publish the report and send a copy of it to—

• (a) the Competition and Markets Authority ; and

• (b) every person to whom the relevant arrangements will apply, or do apply.

• (6) The relevant arrangements are—

• (a) the arrangements for which approval has been sought; or

• (b) the arrangements which are the subject of the modifications for which approval has been sought.

Notification of decisions on imposition of arrangements

5

• (1) Where OFCOM impose arrangements they must prepare and publish a report setting out details of the imposed arrangements.

• (2) Where OFCOM carry out a review under section 293, they must prepare and publish a report setting out—

• (a) their conclusions on the review;

• (b) their reasons for those conclusions; and

• (c) the modifications (if any) that they are proposing, or intend to make, following the review.

• (3) OFCOM must send a copy of a report prepared under this paragraph to—

• (a) the Competition and Markets Authority ; and

• (b) every person to whom the relevant arrangements will apply or do apply.

• (4) The relevant arrangements are—

• (a) the arrangements which are imposed; or

• (b) the arrangements which are the subject of the modifications proposed by OFCOM or to be made by them.

Competition tests applying to OFCOM’s decisions

6

• (1) OFCOM must not—

• (a) approve arrangements or modifications,

• (b) impose arrangements or modify imposed arrangements, or

• (c) propose modifications following a review under section 293,

unless they are satisfied that the arrangements, or the arrangements as proposed to be modified, satisfy the first or second competition test.

• (2) Before making a decision about whether a competition test is satisfied OFCOM must consult the Competition and Markets Authority .

• (3) Arrangements satisfy the first competition test if they do not have as their object or effect the prevention, restriction or distortion of competition within the United Kingdom.

• (4) Arrangements satisfy the second competition test if—

• (a) they do have such an object or effect; but

• (b) they would satisfy the criteria set out in section 9 of the Competition Act 1998 (c. 41) (agreements contributing to improving the production or distribution of goods or to promoting technical or economic progress).

• (5) For the purposes of the second competition test, arrangements imposed by OFCOM and modifications of such arrangements are to be treated as if they were given effect to by an agreement between undertakings.

• (6) Subject to paragraph 6A, in determining whether arrangements or modified arrangements would satisfy either of the competition tests, OFCOM must act with a view to securing that there is no inconsistency between—

• (a) the principles they apply and the decision they reach; and

• (b) any principles or decisions referred to in sub-paragraph (7).

• (7) Those principles and decisions are—

• (a) the principles laid down by the Treaty on the Functioning of the European Union and the European Court before IP completion day, and any decisions made by that court before IP completion day, that are relevant to the construction of Article 101 of that Treaty; and

• (b) any decisions under Part 1 of the Competition Act 1998, and any decisions of a court in the United Kingdom, that are relevant to the construction of a provision of that Act that is equivalent to the provisions of this Schedule imposing the competition tests.

• (7A) In sub-paragraph (7)(a), the reference to principles laid down before IP completion day is a reference to such principles as they have effect in EU law immediately before IP completion day, disregarding the effect of principles laid down, and decisions made, by the European Court on or after IP completion day.

• (8) In the case of a conditional approval, the requirements of this paragraph have to be satisfied in relation to the arrangements or modified arrangements as they will be after giving effect to the changes proposed by OFCOM.

• (9) In this paragraph, the “European Court” includes a court attached to the European Court.

Other matters to be taken into account

7

• (1) OFCOM must not—

• (a) approve arrangements or modifications,

• (b) impose arrangements or modify imposed arrangements, or

• (c) propose modifications following a review under section 293,

unless they consider that the arrangements, or the arrangements as proposed to be modified, are satisfactory.

• (2) OFCOM’s consideration under sub-paragraph (1) must include consideration of the following two factors.

• (3) The first factor is whether the arrangements, or the arrangements as proposed to be modified, represent a satisfactory means of achieving the purpose set out in section 290(4)(c).

• (4) The second factor is the likely effect of the arrangements, or the arrangements as modified, on the ability of the persons who will be or are the holders of regional Channel 3 licences, or of any of them, to maintain the quality and range of—

• (a) regional programmes included in regional Channel 3 services; and

• (b) the other programmes included in such services which contribute to the regional character of the services.

• (5) In this paragraph “regional programme”, in relation to a regional Channel 3 service, means a programme (including a news programme) which is of particular interest—

• (a) to persons living within the area for which the service is provided;

• (b) to persons living within a part of that area; or

• (c) to particular communities living within that area.

Duty to refuse approval in certain cases

8

• (1) This paragraph applies to a decision by OFCOM—

• (a) to approve arrangements or modifications;

• (b) to impose arrangements or to modify imposed arrangements; or

• (c) to propose modifications following a review under section 293.

• (2) OFCOM must not make that decision if it appears to them that the arrangements, or the arrangements as proposed to be modified, would be likely to be prejudicial to the ability of holders of regional Channel 3 licences, or of any of them, to comply with—

• (a) their public service remits;

• (b) conditions imposed on them under section 286;

• (c) conditions imposed on them under section 287; or

• (d) conditions imposed on them under section 352.

Appeals against decisions relating to competition test

9

• (1) A person holding a regional Channel 3 licence may appeal to the Tribunal against the following decisions by OFCOM—

• (a) a decision on how to dispose of an application for the approval of arrangements or modifications;

• (b) a decision to impose arrangements or to modify imposed arrangements; or

• (c) a decision to propose modifications following a review under section 293.

• (2) An appeal can be made only by sending the Tribunal a notice of appeal within the period specified, in relation to the decision appealed against, in Tribunal rules.

• (3) The notice of appeal must set out the grounds of appeal.

• (4) The only grounds on which an appeal may be brought are—

• (a) that OFCOM have wrongly decided that a competition test is or is not satisfied in relation to arrangements or modifications submitted to them for approval;

• (b) that a competition test is not satisfied in the case of arrangements proposed by OFCOM;

• (c) that provisions contained in arrangements proposed by OFCOM for satisfying a competition test are not required for that purpose;

• (d) that the requirement to satisfy a competition test should be discharged in a different manner from that in which it would be satisfied in accordance with arrangements proposed by OFCOM.

• (5) In sub-paragraph (4) “arrangements proposed by OFCOM” means—

• (a) arrangements or modified arrangements as they will have effect after giving effect to changes proposed by OFCOM in giving a conditional approval;

• (b) arrangements imposed by them;

• (c) imposed arrangements as modified by them;

• (d) arrangements as modified by proposals made by OFCOM following a review under section 293.

• (6) The holder of a regional Channel 3 licence is not required by the conditions of his licence to take steps for giving effect to a decision of OFCOM at any time when an appeal under this Schedule against that decision is pending.

Decisions on an appeal

10

• (1) Appeals to the Tribunal under paragraph 9 are to be disposed of in accordance with this paragraph.

• (2) The Tribunal shall decide the appeal on the merits and by reference to the grounds of appeal set out in the notice of appeal.

• (3) The Tribunal shall decide what (if any) is the appropriate decision for OFCOM to have made in relation to the matters to which those grounds relate.

• (4) The Tribunal shall then either—

• (a) confirm OFCOM’s decision; or

• (b) remit the matter to OFCOM with such directions (if any) as the Tribunal considers appropriate for giving effect to its decision.

• (5) The Tribunal must not direct OFCOM to take any action which they would not otherwise have had power to take in relation to the matter under appeal.

• (6) It shall be the duty of OFCOM to comply with every direction given to them under sub-paragraph (4).

• (7) In its application to a decision of the Tribunal under this paragraph, paragraph 1(2)(b) of Schedule 4 to the Enterprise Act 2002 (c. 40) (exclusion of commercial information from documents recording Tribunal decisions) is to have effect as if for the reference to the undertaking to which commercial information relates there were substituted a reference to the person to whom such information relates.

Appeals against decisions of the Tribunal

11

• (1) A decision of the Tribunal on an appeal under paragraph 9 may itself be appealed.

• (2) An appeal under this paragraph—

• (a) lies to the Court of Appeal or to the Court of Session; and

• (b) must relate only to a point of law arising from the decision of the Tribunal.

• (3) An appeal under this paragraph may be brought by a party to the proceedings before the Tribunal.

• (4) An appeal under this paragraph requires the permission of the Tribunal or of the court to which it is to be made.

• (5) In this paragraph references to a decision of the Tribunal include references to a direction given by it under paragraph 10(4).

Information for OFCOM

12

• (1) OFCOM may by notice require a person—

• (a) to produce to them such documents specified or described in the notice, or

• (b) to furnish them with such other information so specified or described,

as they consider necessary in order to determine for the purposes of section 293 or this Schedule whether the competition tests are satisfied.

• (2) A requirement imposed by a notice under this paragraph has to be complied with by producing the document, or by furnishing the required information, at the time and place specified in the notice.

• (3) If the requirement is one for the furnishing of information otherwise than by the production of a document, the information must be furnished in the manner specified in the notice.

• (4) The only documents that a person is required to produce by a notice under this paragraph are those that are in his custody or under his control—

• (a) at the time of the notice; or

• (b) at a time between that time and the time when the notice must be complied with.

Enforcement of information provisions

13

• (1) The court may, on an application by OFCOM, enquire into whether any person (“the defaulter”) has refused or otherwise failed, without reasonable excuse, to comply with a requirement contained in a notice under paragraph 12.

• (2) An application under sub-paragraph (1) shall include details of the possible failure which OFCOM consider has occurred.

• (3) In enquiring into a case under sub-paragraph (1), the court shall hear—

• (a) any witness who may be produced against or on behalf of the defaulter; and

• (b) any statement which may be offered in defence.

• (4) Sub-paragraphs (5) and (6) apply where the court is satisfied, after hearing any witnesses and statements as mentioned in sub-paragraph (3), that the defaulter has refused or failed, without reasonable excuse, to comply with the requirement contained in the notice under paragraph 12.

• (5) The court may punish the defaulter as it would have been able to punish him had he been guilty of contempt of court.

• (6) Where the defaulter is a body corporate, the power of the court to punish the defaulter includes power to punish a director or officer of the body corporate.

• (7) Where the defaulter is a partnership constituted under the law of Scotland, the power of the court to punish the defaulter includes power to punish a member of the partnership.

• (8) A person is guilty of an offence if he intentionally alters, suppresses or destroys a document which he has been required to produce by a notice under paragraph 12.

• (9) A person is guilty of an offence if—

• (a) he supplies information to OFCOM in purported compliance with a notice given to him under paragraph 12;

• (b) the information is false or misleading in a material respect; and

• (c) he knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.

• (10) A person is guilty of an offence if—

• (a) he supplies information to another person knowing that the information is to be used for complying with a notice under paragraph 12;

• (b) the information is false or misleading in a material respect; and

• (c) he knows that it is false or misleading in a material respect or is reckless as to whether it is false or misleading in a material respect.

• (11) A person guilty of an offence under this paragraph shall be liable—

• (a) on summary conviction, to a fine not exceeding the statutory maximum;

• (b) on conviction on indictment, to imprisonment for a term not exceeding two years or to a fine, or to both.

• (12) In this paragraph “the court” means—

• (a) in relation to England and Wales, the High Court;

• (b) in relation to Scotland, the Court of Session; and

• (c) in relation to Northern Ireland, the High Court or a judge of the High Court.

Confidentiality and defamation

14

• (1) When publishing a report prepared under paragraph 4 or 5, OFCOM must have regard to the need to exclude from the publication, so far as practicable, the matters which are confidential in accordance with sub-paragraphs (2) and (3).

• (2) A matter is confidential under this sub-paragraph if—

• (a) it relates specifically to the affairs of a particular body; and

• (b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that body.

• (3) A matter is confidential under this sub-paragraph if—

• (a) it relates to the private affairs of an individual; and

• (b) publication of that matter would or might, in OFCOM’s opinion, seriously and prejudicially affect the interests of that individual.

• (4) For the purposes of the law of defamation absolute privilege attaches to every report prepared under paragraph 4 or 5.

Interpretation of Schedule

15

In this Schedule—

• “competition test” is to be construed in accordance with paragraph 6;

• “the Tribunal” means the Competition Appeal Tribunal; and

• “Tribunal rules” means rules made under section 15 of the Enterprise Act 2002 (c. 40).

SCHEDULE 12

Part 1 — The BBC

Quotas for independent productions

1

• (1) It shall be the duty of the BBC to secure that, in each year—

• (a) it makes available qualifying audiovisual content that includes a range and diversity of independent productions commissioned in accordance with any relevant code drawn up by the BBC under the BBC Charter and Agreement, and

• (b) the duration (in total) of those independent productions is at least the number of hours specified by order of the Secretary of State.

• (2) In this paragraph—

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

• (b) a reference to independent productions is a reference to programmes of such description as the Secretary of State may by order specify as describing the programmes that are to be independent productions for the purposes of this paragraph; and

• (c) a reference to a range of independent productions is a reference to a range of such productions in terms of cost of acquisition as well as in terms of the types of programme involved.

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

• (4) The Secretary of State may also by order provide for the BBC to have the duty set out in sub-paragraph (5), either instead of or as well as the one set out in sub-paragraph (1).

• (5) That duty is a duty to secure that —

• (a) in each year, it makes available qualifying audiovisual content that includes a range and diversity of independent productions commissioned in accordance with any relevant code drawn up by the BBC under the BBC Charter and Agreement, and

• (b) the cost (in total) of the acquisition of those independent productions is at least the amount specified in the order.

• (6) The power to make an order under sub-paragraph (4) includes power to provide that the BBC are again to be subject to a duty to which they have previously ceased to be subject by virtue of such an order, in addition to or instead of the duty to which they are subject (apart from the exercise of that power) by virtue of this paragraph.

• (7) The Secretary of State is not to make an order for the BBC to be or to cease to be subject to the duty mentioned in sub-paragraph (1) or (5) unless—

• (a) OFCOM have made a recommendation to him that the BBC should be subject to that duty, or should cease to be subject to it; and

• (b) the order gives effect to that recommendation.

• (8) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (9) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (10) The BBC must comply with directions given to them by OFCOM for the purpose of—

• (a) carrying forward to one or more subsequent years determined in accordance with the direction any shortfall for any year in their compliance with the duties imposed by virtue of sub-paragraph (1) or (4); and

• (b) thereby increasing the number of hours or (as the case may be) the amount applicable for the purposes of those duties to the subsequent year or years.

• (11) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (12) Before making an order under this paragraph the Secretary of State must consult OFCOM and the BBC.

• (13) No order is to be made containing provision authorised by this paragraph unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

• (14) In this paragraph—

• “acquisition”, in relation to a programme, includes commissioning and acquiring a right to include it in a service or to have it broadcast; ...

• . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (15) See also sections 278B and 278C (which make further provision for the interpretation of this paragraph etc).

Duty to publicise complaints procedures etc.

2

• (1) It shall be the duty of the BBC to make arrangements for securing that the matters mentioned in sub-paragraph (2) are brought to the attention of the public (whether by means of broadcasts or otherwise).

• (2) Those matters are—

• (a) OFCOM’s functions under Part 5 of the 1996 Act in relation to services provided by the BBC; and

• (b) any procedures established by OFCOM or the BBC for the handling and resolution of complaints about the observance by the BBC of standards set under section 319 or about compliance by the BBC with the requirements imposed by section 368D and section 368E(4).

Part 2 — S4C

Public service remits of the Welsh Authority services

3

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

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

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

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

• (5) The Secretary of State may by order amend section 204A for the purpose of modifying S4C’s public service remit.

• (6) Before making an order under sub-paragraph (5), the Secretary of State must consult—

• (a) S4C, and

• (b) OFCOM.

• (7) An order under sub-paragraph (5) must not contain provision inconsistent with a requirement that a substantial proportion of audiovisual content made available by S4C is in Welsh.

• (7A) In sub-paragraph (7) “audiovisual content” has the same meaning as in section 264.

• (7B) Subsection (13) of section 264 (interpretation of “made available”) applies for the purposes of sub-paragraph (7) as it applies for the purposes of that section.

• (8) No order is to be made containing provision authorised by sub-paragraph (5) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

Statements of programme policy

4

• (1) It shall be the duty of S4C—

• (a) as soon as practicable after the coming into force of this paragraph, and subsequently at annual intervals, to prepare a statement of programme policy; and

• (b) to monitor their own performance in the carrying out of the proposals contained in statements made under this paragraph.

• (2) Every statement of programme policy prepared under this paragraph must set out S4C’s proposals for securing that, during the following year—

• (a) S4C’s public service remit is fulfilled; and

• (b) S4C’s duties under the provisions of this Schedule will be performed.

• (2A) Every such statement must—

• (a) state whether relevant audiovisual services other than S4C Digital will be used, during the following year, to fulfil S4C’s public service remit, and

• (b) if so, set out S4C’s proposals as to the contributions that S4C Digital and other relevant audiovisual services will make.

• (3) Every such statement must contain a report on the performance of S4C in the carrying out during the period since the previous statement of the proposals contained in that previous statement.

• (4) When preparing such a statement, S4C must consider—

• (a) any guidance by OFCOM that is in force for the purposes of section 266; and

• (b) any reports previously published by OFCOM under section 264 or 358.

• (5) Every such statement must be published by S4C as soon as practicable after its preparation is complete.

• (6) OFCOM may direct that any statement of policy which—

• (a) was made by S4C before the coming into force of this paragraph, and

• (b) is specified in the direction,

is to be treated for the purposes of this Act as if it were a statement made in relation to such period as may be so specified in pursuance of this paragraph.

• (7) A direction under sub-paragraph (6) cannot contain provision the effect of which is to postpone the time at which S4C would otherwise be required to make its first statement of programme policy.

Must-offer obligations in relation to networks and satellite services

5

• (1) It shall be the duty of the Welsh Authority to ensure that each of their public digital services is at all times offered as available (subject to the need to agree terms)—

• (a) to be broadcast or distributed by means of every appropriate network; and

• (b) to be broadcast by means of every satellite television service that is available for reception by members of the public in Wales.

• (2) It shall be the duty of the Welsh Authority to do their best to secure that arrangements are entered into, and kept in force, that ensure—

• (a) that each of their public digital services is broadcast or distributed on appropriate networks; and

• (b) that the broadcasting and distribution of each of their public digital services, in accordance with those arrangements, result in the service being available for reception, by means of appropriate networks, by as many members of its intended audience as practicable.

• (3) It shall be the duty of the Welsh Authority to do their best to secure that arrangements are entered into, and kept in force, that ensure—

• (a) that each of their public digital services is broadcast by means of satellite television services that are broadcast so as to be available for reception by members of the public in Wales; and

• (b) that the broadcasting, in accordance with those arrangements, of each of the Authority’s public digital services by means of satellite television services results in its being available for reception in an intelligible form and by means of those services by as many members of its intended audience as practicable.

• (4) The Welsh Authority must secure that the arrangements entered into and kept in force for the purposes of sub-paragraphs (2) and (3) prohibit the imposition, for or in connection with the provision of an appropriate network or a satellite television service, of any charge that is attributable (whether directly or indirectly) to the conferring of an entitlement to receive each of the Authority’s public digital services in an intelligible form by means of that network or service.

• (5) OFCOM may, by a direction to the Welsh Authority, require arrangements made or kept in force for the purposes of sub-paragraphs (2) or (3) to apply in the case of every service which is an ancillary service by reference to one of their public digital services as they apply to the service itself.

• (6) For the purposes of this paragraph a public digital service of the Welsh Authority is to be treated, in relation to particular appropriate networks and satellite television services, as constituting such services comprised in or provided with that public digital service—

• (a) as may be determined by agreement between the Welsh Authority and OFCOM; or

• (b) in default of agreement, as may be directed by OFCOM.

• (7) This paragraph—

• (a) so far as it relates to the broadcasting or distribution of any of the Welsh Authority’s public digital services by means of appropriate networks, applies only in relation to times when that service is included in the list of must-carry services in section 64; and

• (b) so far as it relates to the broadcasting of such a public digital service by means of a satellite television service, applies only in relation to times when that service is included in the list of must-provide services in section 275.

• (8) In this paragraph—

• “appropriate network” means an electronic communications network by means of which public electronic communications services are provided that are used by a significant number of end-users in Wales as their principal means of receiving television programmes;

• “intended audience”, in relation to a public digital service of the Welsh Authority, means—if the service is one provided only for a particular area or locality of Wales, members of the public in that area or locality;if the service is one provided for members of a particular community, members of that community; andin any other case, members of the public in Wales;

• “public digital service”, in relation to the Welsh Authority, means any of their public television services so far as it is provided in digital form; and

• “satellite television service” means a service which—consists in or involves the broadcasting of television programme services from a satellite; andis used by a significant number of the persons by whom the broadcasts are received in an intelligible form as their principal means of receiving television programmes.