Legalize / United Kingdom / Public General Act

Communications Act 2003

Type Public General Act

Publication 2003-07-17

Last updated 2026-04-06

State In force

Department Statute Law Database

Source legislation.gov.uk

articles 1

Reform history JSON API

(a) on or by a specified date, or

(b) within a specified period.

(8) The power conferred by subsection (1) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings.

(9) A person to whom an information notice is given must provide the information in accordance with any requirements included in the notice (subject to subsection (10)).

(10) The duty under subsection (9) does not require a disclosure of information if that disclosure would contravene the data protection legislation (but, in determining whether a disclosure would do so, that duty is to be taken into account).

(11) For the purposes of subsection (4)(d), a service is an “ancillary service” in relation to an internet programme service or a television selection service if it facilitates the provision of that service (or part of it), whether directly or indirectly.

(12) In this section, a reference to the functions of OFCOM under this Part includes a reference to their functions under Schedules 16A and 16B, so far as relating to this Part.

(13) In this section, “data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act).

References of disputes to OFCOM

362AT

(1) This section applies in the case of a dispute between the provider of a designated internet programme service and the provider of a regulated television selection service about—

(a) the arrangements that should be made between them in order to give effect to the prominence duties that relate to them, or

(b) the operation of arrangements made between them in order to give effect to those duties.

(2) For the purposes of subsection (1)—

(a) the prominence duties relating to the provider of a designated internet programme service are—

(i) in the case of a provider other than the BBC, the duties under section 362AJ;

(ii) in the case of the BBC, any duties of the BBC under the BBC Charter and Agreement that are comparable to the duties of other providers under section 362AJ;

(b) the prominence duties relating to the provider of a regulated television selection service are the duties under sections 362AK and 362AO (1).

(3) Any one or more of the parties to the dispute may refer it to OFCOM but only if (and when) there is no realistic prospect of resolving the dispute without referring it.

(4) OFCOM may invite any one or more of the parties to the dispute to make a reference under subsection (3).

(5) OFCOM—

(a) may impose requirements about the manner in which a reference must be made by publishing a notice setting out those requirements,

(b) may withdraw or modify any requirements that have been imposed by publishing a further notice, and

(6) OFCOM may publish a notice under subsection (5) in such ways as they consider appropriate for bringing the notice to the attention of those who, in their opinion, are likely to be affected by it.

362AU

(1) This section applies where—

(a) a dispute is referred to OFCOM under section 362AT (3), and

(b) any requirements imposed by OFCOM under section 362AT (5) are met in relation to the reference.

(2) OFCOM must decide whether or not it is appropriate for them to handle the dispute.

(3) Subsection (4) applies where—

(a) the dispute is of the kind described in section 362AT (1)(a) (disputes between the provider of a designated internet programme service and the provider of a regulated television selection service about the arrangements that should be made between them for the purposes of their prominence duties), and

(b) unless the dispute is resolved, it is highly likely that the designated internet programme service will—

(i) not be included in the regulated television selection service, or

(ii) not be given the appropriate degree of prominence within it.

(4) OFCOM must decide that it is appropriate for them to handle the dispute unless they consider—

(a) that there are alternative means available for resolving the dispute,

(b) that a resolution by those means is likely to result in an outcome that is consistent with the agreement objectives, and

(5) As soon as reasonably practicable after OFCOM have decided whether or not it is appropriate for them to handle the dispute, they must inform each of the parties to the dispute of—

(a) their decision and the date on which it was made, and

(b) their reasons for it.

(6) Where OFCOM decide that it is not appropriate for them to handle the dispute, the dispute may subsequently be referred back to OFCOM by one or more of the parties if—

(a) the parties have used alternative means for resolving the dispute but it has not been resolved within a reasonable period of time, or

(b) the parties have not used alternative means for resolving the dispute but OFCOM consider that there is a satisfactory explanation for that.

362AV

(1) This section applies where—

(a) OFCOM decide under section 362AU (2) whether or not it is appropriate for them to handle a dispute, or

(b) a dispute is referred back to OFCOM under section 362AU (6).

(2) OFCOM may do one or more of the following—

(a) make an interim declaration setting out the rights and obligations of the parties to the dispute;

(b) give an interim direction fixing the terms or conditions of transactions between the parties to the dispute;

(c) give an interim direction imposing an obligation on the parties to the dispute, and enforceable by them, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM.

(3) OFCOM must exercise their powers under subsection (2) in the way that seems to them to be most appropriate in the light of the agreement objectives.

(4) Before exercising their powers under subsection (2), OFCOM must—

(a) give the parties to the dispute an opportunity to make representations about the exercise of those powers, and

(b) consider those representations.

(5) In other respects, the procedure to be followed by OFCOM in connection with the exercise of their powers under subsection (2) is to be the procedure that OFCOM consider appropriate.

(6) In the case of a dispute referred back to OFCOM under section 362AU (6), OFCOM may, in exercising their powers under subsection (2), take account of decisions already made by others in the course of an attempt to resolve that dispute by alternative means.

(7) OFCOM must withdraw an interim declaration or an interim direction if requested to do so by the parties to the dispute.

(8) OFCOM may withdraw an interim declaration or an interim direction otherwise than at the request of the parties to the dispute if they consider that it is appropriate to do so in the light of the agreement objectives.

(9) An interim declaration or an interim direction binds the parties to the dispute (unless withdrawn by OFCOM or ceasing to have effect under section 362AY (4)).

(10) In this section—

(a) “an interim declaration” means a declaration that has effect until the resolution of the dispute by OFCOM or by any alternative means (unless withdrawn by OFCOM or ceasing to have effect under section 362AY (4));

(b) “an interim direction” means a direction that has effect until the resolution of the dispute by OFCOM or by any alternative means (unless withdrawn by OFCOM or ceasing to have effect under section 362AY (4)).

362AW

(1) This section applies where—

(a) OFCOM decide under section 362AU (2) that it is appropriate for them to handle a dispute, or

(b) a dispute is referred back to OFCOM under section 362AU (6).

(2) OFCOM must—

(a) consider the dispute, and

(b) make a determination for resolving it.

(3) The procedure for the consideration and determination of the dispute is to be the procedure that OFCOM consider appropriate.

(4) In the case of a dispute referred back to OFCOM under section 362AU (6), that procedure may involve allowing the continuation of a procedure that has already begun for resolving the dispute by alternative means.

(5) Unless there are exceptional circumstances, OFCOM must make their determination before the end of the period of four months beginning with—

(a) where OFCOM decide under section 362AU (2) that it is appropriate for them to handle the dispute, the day on which they make that decision;

(b) where the dispute is referred back to OFCOM under section 362AU (6), the day on which it is referred back.

(6) Where it is practicable for OFCOM to make their determination before the end of the period of four months referred to in subsection (5), they must make it as soon in that period as is practicable.

(7) The requirements of subsections (5) and (6) are subject to section 362AY (4).

(8) OFCOM must—

(a) send a copy of their determination, together with a full statement of their reasons for it, to every party to the dispute, and

(b) publish so much of their determination as (having regard, in particular, to the need to preserve commercial confidentiality) they consider it appropriate to publish.

(9) OFCOM may fulfil their duty under subsection (8)(b) in such ways as they consider appropriate for bringing the material that they consider it appropriate to publish to the attention of members of the public.

362AX

(1) This section applies where OFCOM make a determination for resolving a dispute under section 362AW (2).

(2) OFCOM may do one or more of the following—

(a) make a declaration setting out the rights and obligations of the parties to the dispute;

(b) give a direction fixing the terms or conditions of transactions between the parties to the dispute;

(c) give a direction imposing an obligation on the parties to the dispute, and enforceable by them, to enter into a transaction between themselves on the terms and conditions fixed by OFCOM;

(d) for the purpose of giving effect to a determination by OFCOM of the proper amount of a charge in respect of which amounts have been paid by one of the parties to the dispute to the other, to give a direction, enforceable by the party to whom the sums are to be paid, requiring the payment of sums by way of adjustment of an underpayment or overpayment.

(3) OFCOM must exercise their powers under subsection (2) in the way that they consider to be the most appropriate for meeting the agreement objectives.

(4) In the case of a dispute referred back to OFCOM under section 362AU (6)—

(a) OFCOM may, in making their determination, take account of decisions already made by others in the course of an attempt to resolve that dispute by alternative means, and

(b) the determination made by OFCOM may include provision ratifying such decisions.

(5) Where OFCOM make a determination for resolving a dispute, they may require a party to the dispute—

(a) to make payments to another party to the dispute in respect of costs and expenses incurred by that other party in consequence of the reference of the dispute to OFCOM or in connection with it;

(b) to make payments to OFCOM in respect of costs and expenses incurred by them in dealing with the dispute.

(6) OFCOM may determine—

(a) the amount of any costs or expenses required to be paid under subsection (5)(a) or (b), and

(b) when those costs or expenses are to be paid.

(7) OFCOM may not require a party to the dispute to make payments to another party or to OFCOM under subsection (5) unless they have considered—

(a) the conduct of the party before and after the reference to OFCOM (including, in particular, whether any attempts have been made to resolve the dispute), and

(b) whether OFCOM have made a decision in the party’s favour in respect of the whole or a part of the dispute.

(8) A determination made by OFCOM for resolving a dispute referred to them under section 362AT (3), or referred back to them under section 362AU (6), binds the parties to the dispute.

362AY

(1) This section applies where—

(a) a dispute is referred to OFCOM under section 362AT (3), or

(b) a dispute is referred back to OFCOM under section 362AU (6).

(2) The reference, or reference back, does not prevent the person making it, the other party to the dispute, OFCOM or any other person from bringing, or continuing, any legal proceedings with respect to any of the matters under dispute.

(3) The reference, or reference back, also does not prevent OFCOM from—

(a) giving a notification in respect of something that they have reasonable grounds for believing to be a contravention of an obligation imposed by or under an enactment;

(b) exercising any of their powers under any enactment in relation to a contravention of an obligation imposed by or under an enactment;

(4) If, in any legal proceedings with respect to a matter to which a dispute relates, the court orders the handling of the dispute by OFCOM to be stayed or sisted—

(a) OFCOM are required to make a determination for resolving the dispute only if the stay or sist is lifted or expires,

(b) the period during which the stay or sist is in force must be disregarded in determining the period within which OFCOM are required to make a determination, and

(5) In this section, “legal proceedings” means civil or criminal proceedings in or before a court.

(6) Subsection (2) is subject to—

(a) section 362AX (8), and

(b) any agreement to the contrary binding the parties in dispute.

Enforcement

362AZ

(1) OFCOM may give a notice under this section (a “provisional notice of contravention”) to a person if they consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with—

(a) any duty under section 362AD, 362AJ or 362AN (duties of providers of designated internet programme services under this Part), or

(b) any duty under section 362AH, 362AK or 362AO (duties of providers of regulated television selection services under this Part).

(2) OFCOM may also give a provisional notice of contravention to a person to whom an information notice has been given if they consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with the duty under section 362AS (9).

(3) A provisional notice of contravention must—

(a) specify the duty as regards which (in OFCOM’s opinion) there are reasonable grounds for believing the person has failed, or is failing, to comply, and

(b) give OFCOM’s reasons for that opinion.

(4) A provisional notice of contravention may also specify steps that OFCOM consider the person needs to take in order to—

(a) comply with the duty, or

(b) remedy the failure to comply with it.

(5) A provisional notice of contravention may also state that OFCOM propose to impose a penalty on the person and, in such a case, the notice must—

(a) give OFCOM’s reasons for proposing to impose the penalty,

(b) indicate the amount in sterling of the penalty that is being proposed, and

(c) give OFCOM’s reasons for proposing a penalty of that amount, including any aggravating or mitigating factors that OFCOM propose to take into account.

(6) A provisional notice of contravention must—

(a) state that the person may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice, and

(b) specify the period within which such representations may be made.

(7) A provisional notice of contravention may be given in respect of a failure by the same person to comply with more than one duty and, in such a case, the notice may include a proposal to impose a single penalty in respect of some or all of those duties (as an alternative to separate penalties).

(8) Where a provisional notice of contravention is given in respect of a continuing failure to comply with a duty, the notice—

(a) may be given in respect of any period during which the failure has continued,

(b) must specify that period, and

(9) Where a provisional notice of contravention is given to a person in respect of a failure to comply with a duty, a further provisional notice of contravention in respect of a failure to comply with that same duty may be given to that person only—

(a) in respect of a separate instance of the failure that occurs after the first notice is given,

(b) where a period is specified in the first notice in accordance with subsection (8)(b), in respect of the continuation of the failure after the end of that period, or

(c) if the notice is withdrawn without a confirmation decision under section 362AZ1 having been given to the person in respect of that failure.

(10) OFCOM may give a provisional notice of contravention to—

(a) a person who was but is no longer a provider of a regulated television selection service, or

(b) a person who was but is no longer a provider of a designated internet programme service,

if that person was a provider of a regulated television selection service or (as the case may be) a designated internet programme service at the time of the failure to which the notice relates.

362AZ1

(1) This section applies where—

(a) OFCOM have given a provisional notice of contravention to a person in relation to a failure to comply with a duty or duties, and

(b) the period allowed for representations has expired.

(2) After considering any representations that have been made (and any supporting evidence), OFCOM must decide whether or not to give the person a further notice under this section (a “confirmation decision”).

(3) OFCOM may decide to give a person a confirmation decision only if they are satisfied that the person has failed, or has been failing, to comply with the notified duty or (as the case may be) one or more of the notified duties.

(4) For the purposes of this section and sections 362AZ2 and 362AZ3, a “notified duty” means a duty specified in the provisional notice of contravention.

(5) If OFCOM decide not to give a person a confirmation decision (whether because they are not satisfied as described in subsection (3) or for any other reason), they must inform the person of that fact.

(6) A confirmation decision must—

(a) state that OFCOM are satisfied that the person has failed, or has been failing, to comply with one or more notified duties, and

(b) give OFCOM’s reasons for being satisfied as described in paragraph (a).

(7) A confirmation decision may require the person to take such steps as OFCOM consider appropriate for either or both of the following purposes—

(a) complying with a notified duty or duties;

(b) remedying the failure to comply with that duty or those duties.

(8) Where a provisional notice of contravention stated that OFCOM proposed to impose a penalty in relation to a notified duty or (by virtue of section 362AZ (7)) in relation to notified duties, a confirmation decision may require the person to pay a penalty, of an amount in sterling determined by OFCOM, in relation to that duty or (as the case may be) those duties.

(9) The amount determined by OFCOM under subsection (8) may be greater than the amount indicated in the provisional notice of contravention in accordance with section 362AZ (5)(b).

(10) OFCOM may give a confirmation decision to—

(a) a person who was but is no longer a provider of a regulated television selection service, or

(b) a person who was but is no longer a provider of a designated internet programme service,

if that person was a provider of a regulated television selection service or (as the case may be) a designated internet programme service at the time of the failure to which the notice relates.

362AZ2

(1) This section applies where a confirmation decision requires the person to whom it is given to take steps as provided for by section 362AZ1 (7).

(2) The notice must—

(a) specify the steps that are required and the notified duty or duties to which each relates,

(b) give OFCOM’s reasons for requiring those steps to be taken,

(d) contain information about the consequences of not taking the steps (including information about further kinds of enforcement action that it would be open to OFCOM to take).

(3) Where a confirmation decision requires a person to take steps, the person to whom the notice is given has a duty to take those steps.

(4) The duty under subsection (3) is enforceable in civil proceedings by OFCOM—

(a) for an injunction;

(b) for specific performance of a statutory duty under section 45 of the Court of Session Act 1988;

362AZ3

(1) This section applies where a confirmation decision imposes one or more penalties (see section 362AZ1 (8)).

(2) In relation to each penalty imposed, the notice must—

(a) give OFCOM’s reasons for their decision to impose the penalty,

(b) specify each notified duty to which the penalty relates,

(c) give OFCOM’s reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account,

(d) specify a reasonable period within which the penalty must be paid, and

(e) contain information about the consequences of not paying the penalty (including information about the kinds of enforcement action that it would be open to OFCOM to take).

(3) The period specified under subsection (2)(d) for the payment of a penalty must be at least 28 days beginning with the day on which the confirmation decision is given.

(4) Schedule 16A contains further provision about the imposition of a penalty by a confirmation decision.

362AZ4

(1) This section applies where—

(a) OFCOM have given a confirmation decision to a person,

(b) the notice includes requirements to take steps (as provided for by section 362AZ1 (7)), and

(2) OFCOM may give the person a penalty notice.

(3) A “penalty notice” is a notice requiring a person to pay to OFCOM a penalty of an amount in sterling determined by OFCOM.

(4) Before giving the person a penalty notice, OFCOM must—

(a) notify the person that they propose to give a penalty notice in respect of the failure to comply with the confirmation decision, specifying the reasons for their proposal and indicating the amount of the proposed penalty, and

(b) give the person an opportunity to make representations to OFCOM (with any supporting evidence) about their proposal.

(5) A penalty notice must—

(a) give OFCOM’s reasons for their decision to impose the penalty,

(b) state the amount of the penalty,

(c) state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account,

(d) specify the period within which the penalty must be paid, and

(e) contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take).

(6) The period specified under subsection (5)(d) must be at least 28 days beginning with the day on which the penalty notice is given.

(7) Schedule 16A contains further provision about the imposition of a penalty by a penalty notice.

362AZ5

(1) OFCOM must prepare and publish guidance about the exercise of their powers under sections 362AZ to 362AZ4 and Schedule 16B (so far as relating to this Part).

(2) The guidance must include the factors that OFCOM will take into account in deciding whether to exercise any of those powers.

(3) OFCOM may revise or replace any guidance published under this section and, where they do so, must publish the revised or replacement guidance.

(4) Before preparing guidance under this section (or revising or replacing it), OFCOM must consult—

(a) the Secretary of State, and

(b) such other persons as they consider appropriate.

(5) Guidelines prepared by OFCOM under section 392 (amount of penalties) may, so far as relating to penalties imposed by a confirmation decision under section 362AZ1 or a penalty notice under section 362AZ4, be included in the same document as guidance under this section.

(6) In exercising or deciding whether to exercise any of their powers under sections 362AZ to 362AZ4 and Schedule 16B (so far as relating to this Part), OFCOM must have regard to any guidance for the time being published under this section.

Supplemental provisions of Part 3A

362AZ6

(1) OFCOM may require a person other than the BBC or S4C who is—

(a) a provider of a designated internet programme service, or

(b) a provider of a regulated television selection service,

to pay to OFCOM a fee of an amount determined by OFCOM.

(2) The amount of a fee required under subsection (1) must be determined by OFCOM in accordance with a statement of principles prepared and published by them for the purpose of this section.

(3) Those principles must be such as appear to OFCOM to be likely to secure the following objectives—

(a) that, on a year by year basis, the aggregate amount of the fees payable to OFCOM under subsection (1) is sufficient to meet, but does not exceed, the annual cost to OFCOM of carrying out their functions under this Part less an appropriate amount to take into account costs that will be met by fees payable—

(i) by the BBC under section 198(4), or

(ii) by S4C under section 207(6);

(b) that the relationship between the aggregate amount of the fees and the cost to OFCOM of carrying out the functions is transparent;

(c) that any fee required is justifiable and proportionate having regard to the circumstances of the person required to pay it.

(4) As soon as reasonably practicable after the end of each financial year, OFCOM must publish a statement of accounts setting out in respect of that year—

(a) the aggregate amount of the fees payable under subsection (1) for that year that have been received by OFCOM,

(b) the aggregate amount of the fees payable under subsection (1) for that year that remain outstanding and are likely to be paid or recovered, and

(c) the costs to them of carrying out their functions under this Part less an appropriate amount to take into account costs that have been or are to be met by fees payable—

(i) by the BBC under section 198(4), or

(ii) by S4C under section 207(6).

(5) Any deficit or surplus shown (after applying this subsection for all previous years) by the statement of accounts is to be—

(a) carried forward, and

(b) taken into account in determining what is required to meet the objective described in subsection (3)(a) in relation to the following year.

(6) OFCOM may repay a person some or all of a fee paid under subsection (1) if—

(a) in the case of a fee paid by the provider of a designated internet programme service, OFCOM revoke the designation of an internet programme service provided by that person under section 362AB at some time during the period to which the fee relates;

(b) in the case of a fee paid by the provider of a regulated television selection service—

(i) the Secretary of State has revoked the designation of a regulated television selection service provided by that person at some time during the period to which the fee relates, or

(ii) the person gives OFCOM a notice under section 362AH (2) or (3) in accordance with section 362AH (4) at some time during the period to which the fee relates.

(7) For the purposes of this section, OFCOM’s costs of carrying out their functions under this Part during a financial year include their costs of preparing to carry out those functions during that year.

(8) OFCOM—

(a) may revise a statement of principles published by them, and

(b) where they do so, must publish the statement as revised.

(9) Before publishing a statement of principles or a revision of it, OFCOM must consult such persons as they consider appropriate.

(10) In this section, a reference to the functions of OFCOM under this Part includes a reference to their functions under Schedules 16A and 16B, so far as relating to this Part.

(11) In this section, “financial year” means a period of 12 months ending on 31 March.

362AZ7

(1) This section applies if—

(a) the provider of a designated internet programme service or regulated television selection service is liable to pay a fee to OFCOM under section 362AZ6, and

(b) in OFCOM’s opinion, the provider has not paid the full amount of the fee that the provider is liable to pay.

(2) OFCOM may give the provider a notice under this subsection specifying—

(a) the outstanding amount of the fee that OFCOM consider the provider is due to pay to them under section 362AZ6, and

(b) the period within which the provider must pay it.

(3) A notice under subsection (2)—

(a) may relate to fees required on different occasions;

(b) may also state that OFCOM propose to impose a penalty on the provider.

(4) The provider may make representations to OFCOM (with any supporting evidence) about the matters contained in the notice.

(5) Subsection (6) applies if—

(a) the notice under subsection (2) stated that OFCOM propose to impose a penalty,

(b) the period allowed for representations has expired, and

(6) OFCOM may give the provider a penalty notice under this subsection requiring the provider to pay to OFCOM a penalty of an amount in sterling determined by OFCOM.

(7) The penalty may consist of any of the following—

(a) a single amount;

(b) an amount calculated by reference to a daily rate;

(8) The penalty notice may impose a penalty of a different kind, of a greater amount or (in the case of a penalty calculated by reference to a daily rate) payable over a longer period than that proposed in the notice about the proposed penalty.

(9) See section 362AZ8 for information which must be included in notices under this section.

(10) Nothing in this section affects OFCOM’s power to bring proceedings (whether before or after the imposition of a penalty by a notice under subsection (6)) for the recovery of the whole or part of an amount due to OFCOM under section 362AZ6.

(11) But OFCOM may not bring such proceedings unless a provider has first been given a notice under subsection (2) specifying the amount due to OFCOM.

362AZ8

(1) A notice under section 362AZ7 (2) stating that OFCOM propose to impose a penalty must—

(a) state the reasons why OFCOM propose to impose the penalty,

(b) state whether OFCOM propose that the penalty should consist of a single amount, an amount calculated by reference to a daily rate, or a combination of the two,

(c) indicate the amount of the proposed penalty, including (in relation to an amount calculated by reference to a daily rate) the daily rate and how the penalty would be calculated,

(d) in relation to an amount calculated by reference to a daily rate, specify or describe the period for which OFCOM propose that the amount should be payable,

(e) state the reasons for proposing a penalty of that amount, including any aggravating or mitigating factors that OFCOM propose to take into account, and

(f) specify the period within which representations in relation to the proposed penalty may be made.

(2) A penalty notice under section 362AZ7 (6) must—

(a) give OFCOM’s reasons for their decision to impose the penalty,

(b) state whether the penalty consists of a single amount, an amount calculated by reference to a daily rate, or a combination of the two, and how it is calculated,

(d) in relation to an amount calculated by reference to a daily rate, state the daily rate,

(e) state the reasons for the amount of the penalty, including any aggravating or mitigating factors that OFCOM have taken into account,

(f) specify a reasonable period within which the penalty must be paid, and

(g) contain information about the consequences of not paying the penalty (including information about the further kinds of enforcement action that it would be open to OFCOM to take).

(3) A penalty notice under section 362AZ7 (6) must also specify the amount of the fee that is (in OFCOM’s opinion) due to be paid to OFCOM.

(4) The period specified under subsection (2)(f) for the payment of a single amount must be at least 28 days beginning with the day on which the penalty notice is given.

(5) Subsection (6) applies in relation to a penalty notice under section 362AZ7 (6) that includes a requirement to pay an amount calculated by reference to a daily rate.

(6) Such a notice must—

(a) state the date from which the amount begins to be payable, which must not be earlier than the day after the day on which the notice is given;

(b) provide for the amount to continue to be payable at the daily rate until—

(i) the date on which the full amount of the fee (as specified in the penalty notice) has been paid to OFCOM, or

(ii) an earlier date specified in the penalty notice.

(7) Schedule 16A contains further provision about the imposition of a penalty by a penalty notice under section 362AZ7 (6).

362AZ9

OFCOM have the function of obtaining, compiling and keeping under review information about matters which may be relevant to—

(a) designating or revoking the designation of an internet programme service under section 362AA or 362AB;

(b) designating or revoking the designation of a television selection service or specifying or ceasing to specify a description of television selection services under section 362AF;

362AZ10

(1) This section applies in relation to a notice that may or must be given by OFCOM to a person under any provision of this Part or Schedule 16B (so far as relating to this Part).

(2) OFCOM may give a notice to a person by—

(a) delivering it by hand to the person,

(b) leaving it at the person’s proper address,

(d) sending it by email to that person’s email address.

(3) A notice to a body corporate may be given to any officer of that body.

(4) A notice to a partnership may be given to any partner or to a person who has the control or management of the partnership business.

(5) A notice to an entity that is not a legal person under the law under which it is formed (other than a partnership) may be given to any member of the governing body of the entity.

(6) In the case of a notice given to a person who is a provider of a regulated television selection service, the person’s proper address for the purposes of paragraphs (b) and (c) of subsection (2), and section 7 of the Interpretation Act 1978 in its application to those paragraphs, is any address (within or outside the United Kingdom) at which OFCOM believe, on reasonable grounds, that the notice will come to the attention of the person or (where that person is an entity) any director or other officer of that entity.

(7) In the case of a notice given to a person other than a provider of a regulated television selection service, a person’s proper address for the purposes of paragraphs (b) and (c) of subsection (2), and section 7 of the Interpretation Act 1978 in its application to those paragraphs, is—

(a) in the case of an entity, the address of the entity’s registered or principal office;

(b) in any other case, the person’s last known address.

(8) In the case of an entity registered or carrying on business outside the United Kingdom, or with offices outside the United Kingdom, the reference in subsection (7) to its principal office includes—

(a) its principal office in the United Kingdom, or

(b) if the entity has no office in the United Kingdom, any place in the United Kingdom at which OFCOM believe, on reasonable grounds, that the notice will come to the attention of any director or other officer of that entity.

(9) For the purposes of subsection (2)(d), a person’s email address is—

(a) any email address published for the time being by that person as an address for contacting that person, or

(b) if there is no such published address, any email address by means of which OFCOM believe, on reasonable grounds, that the notice will come to the attention of that person or (where that person is an entity) any director or other officer of that entity.

(10) A notice sent by email is treated as given 48 hours after it was sent, unless the contrary is proved.

(11) In this section—

“director” includes any person occupying the position of a director, by whatever name called;

“officer”, in relation to an entity, includes a director, a manager, a partner, an associate, a secretary or, where the affairs of the entity are managed by its members, a member.

362AZ11

(1) A duty imposed on a provider of a television selection service by or under this Part applies in relation to that service only so far as it is made available for use by members of the public in the United Kingdom.

(2) References in this Part to a television selection service include such a service provided from outside the United Kingdom (as well as such a service provided from within the United Kingdom).

(3) References in this Part to an internet programme service include such a service provided from outside the United Kingdom (as well as such a service provided from within the United Kingdom).

(4) The power to require the provision of information by an information notice includes power to require the provision of information held outside the United Kingdom.

(5) Section 362AZ2 (4) (requirements enforceable in civil proceedings against a person) applies whether or not the person is in the United Kingdom.

362AZ12

(1) In this Part—

“the agreement objectives” has the meaning given by section 362AM;

“BBC company”, “C4 company” and “S4C company” have the same meaning as in Part 3 (see section 362);

“designated internet programme service” has the meaning given by section 362AA;

“entity” means a body or association of persons or an organisation, regardless of whether the body, association or organisation is—formed under the law of any part of the United Kingdom or of a country or territory outside the United Kingdom, ora legal person under the law under which it is formed;

“information notice” has the meaning given by section 362AS;

“internet programme service” has the meaning given by section 362AA;

“licensed public service channel” has the same meaning as in Part 3 (see section 362);

“listed channel” has the meaning given by section 362AM;

“programme” means such programme as is described in section 368ZA;

“provision”—in relation to an internet programme service, is to be construed in accordance with subsection (2);in relation to a television selection service, is to be construed in accordance with section 362AE (5);

“public service broadcaster” has the meaning given by section 264;

“public service remit” has the meaning given by section 362AA;

“public service remit content” has the meaning given by section 362AA;

“regulated television selection service” has the meaning given by section 362AF;

“television selection service” has the meaning given by section 362AE.

(2) The person, and the only person, who is to be treated for the purposes of this Part as providing an internet programme service is the person who has general control of the service.

(3) In the case of an internet programme service where the programmes provided to a user of the service are contained in a single on-demand programme service, the person with general control of the service is the person who has editorial responsibility for the on-demand programme service (see section 368A(4)).

(4) In the case of any other internet programme service, the person with general control of the service is the person who has general control over which—

(a) on-demand programme services,

(b) non-UK on-demand programme services, and

are included in the service.

(5) For the purposes of this Part—

(a) the provision of an internet programme service by the BBC does not include its provision by a BBC company;

(b) the provision of an internet programme service by C4C does not include its provision by a C4 company;

and, accordingly, control that is or is capable of being exercised by the BBC, C4C or S4C over decisions by a BBC company, C4 company or S4C company about what is to be comprised in a service is to be disregarded for the purposes of determining who has general control of the service.

(6) For the purposes of this Part, a person (“P”) is associated with a public service broadcaster if, and only if—

(a) P is a body corporate which is controlled by the public service broadcaster; or

(b) where the public service broadcaster is the provider of a Channel 3 service or Channel 5, P and the public service broadcaster are bodies corporate which are both controlled by the same person.

(7) In subsection (6) “controlled” has the same meaning as in Part 1 of Schedule 2 to the 1990 Act.

(8) A reference in this Part to access, in relation to a programme provided by an internet programme service, is a reference to the opportunity of viewing in an intelligible form a programme so provided.

(9) For the purposes of this Part, a reference to an internet programme service being included in a television selection service is a reference to being one of the internet programme services that are, or whose programmes are, available for selection and access by means of the television selection service.

(10) The services that are to be taken for the purposes of this Part to be available for use by members of the public include any service which—

(a) is made available for use only by persons who subscribe to the service (whether for a period or in relation to a particular occasion) or who otherwise request its provision, but

(b) is a service the facility of subscribing to which, or of otherwise requesting its provision, is offered or made available to members of the public.

Extension of special public interest regime for certain media mergers

Adaptation of role of OFT in special public interest regime

198AA

(1) C4C must take steps to enable competition for commissions from C4C to make programmes, other than advertisements, for inclusion in services provided by C4C that fall within subsection (2).

(2) A service falls within this subsection if it is—

(a) a television broadcasting service,

(b) a television licensable content service,

(d) an on-demand programme service that is or forms part of a designated internet programme service, or

(e) a non-UK on-demand programme service that is or forms part of a designated internet programme service.

(3) C4C must put in place and adhere to procedures that facilitate fair competition for such commissions, including procedures for referring disputes with C4C to mediation.

(4) In this section, “designated internet programme service” has the same meaning as in Part 3A (see section 362AZ12).

278B

(1) In this Part, “qualifying audiovisual content” means any material, other than advertisements, included in a qualifying audiovisual service.

(2) For the purposes of this Part, a person makes available qualifying audiovisual content if—

(a) that content is provided by—

(i) the person, or

(ii) a person associated with the person, under arrangements made between the person and that associated person,

by means of a qualifying audiovisual service provided by the person or (as the case may be) that associated person,

(b) that content, and the qualifying audiovisual service by means of which it is provided, may be received or accessed in intelligible form and free of charge, and

(c) where the qualifying audiovisual service in question is an on-demand programme service, that content is available for the period described in section 264(8B) unless it is excepted by section 264(8C).

(3) Where the period described in section 264(8B) falls partly in one year and partly in another year, the person is to be regarded for the purposes of this Part as making the qualifying audiovisual content available in the year in which the period begins.

(4) Section 362AZ12(6) (meaning of references to a person associated with a public service broadcaster) applies for the purposes of subsection (2)(a) as it applies for the purposes of Part 3A.

(5) Subsection (8A) of section 264 applies for the purposes of subsection (2)(b) as it applies for the purposes of subsection (8) of that section.

(6) For the purposes of this Part, the following are qualifying audiovisual services—

(a) television broadcasting services;

(b) on-demand programme services that are, or form part of, designated internet programme services;

(i) is a relevant audiovisual service for the purposes of section 264 (see section 264(11)), and

(ii) is specified, or falls within a description specified, in regulations made by the Secretary of State.

(7) In relation to a qualifying audiovisual service that is an on-demand programme service, references in this Part to “provide” (and related expressions) are to be read in accordance with section 368R(5).

(8) Before making regulations under subsection (6)(c), the Secretary of State must consult OFCOM.

(9) A statutory instrument containing regulations under subsection (6)(c) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

(10) In this section, “designated internet programme service” has the same meaning as in Part 3A (see section 362AZ12).

278C

(1) In this section, a “quota condition” means—

(a) a condition that forms part of the regulatory regime of a licensed public service channel by virtue of—

(i) section 277(1) or (4) (quotas for independent productions),

(ii) section 278(1) (quotas for original productions),

(iii) section 278A (4) (additional quotas), or

(iv) section 286(1)(a) and (aa) or (3)(a) and (aa) or 288(1)(a) and (aa) (regional programme-making quotas relating to duration);

(b) a condition that forms part of the regulatory regime of a licensed public service channel by virtue of section 286(1)(c) or (3)(c) or 288(1)(c) (regional programme-making quotas relating to expenditure), where the condition is framed by reference to the making available of qualifying audiovisual content;

(c) a duty of the BBC under or by virtue of paragraph 1(1) or (4) of Schedule 12 (BBC quotas for independent productions);

(d) a duty of S4C under or by virtue of paragraph 7(1) or (4) or 8(1) of Schedule 12 (S4C quotas for independent productions and original productions).

(2) The Secretary of State must by regulations make provision determining whether qualifying audiovisual content that is made available by a person in the circumstances described in subsection (3) may be counted towards meeting a quota condition.

(3) Those circumstances are that the person has previously made available audiovisual content consisting of the same or substantially the same material (whether in the same year or a previous year).

(4) For the purposes of subsection (3)—

(a) “audiovisual content” has the same meaning as in section 264;

(b) section 264(13) (interpretation of “made available”) applies as it applies for the purposes of section 264.

(5) Except in the case of a quota condition relating to independent productions, regulations under subsection (2) may, instead of determining the matter described in that subsection, require OFCOM to determine it.

(6) Where the regulations require OFCOM to determine the matter, OFCOM must do so—

(a) in relation to a quota condition falling within subsection (1)(a) or (b), by conditions included in the licence of the provider of the licensed public service channel, and

(b) in relation to a quota condition falling within subsection (1)(d), by a direction given by OFCOM to S4C.

(7) Before giving a direction under subsection (6)(b), OFCOM must consult S4C.

(8) In relation to a quota condition falling within subsection (1)(a) or (b), the reference in subsection (3) to the person includes a reference to any person who previously held the licence to provide the licensed public service channel in question.

(9) Before making regulations under subsection (2), the Secretary of State must consult OFCOM.

(10) A statutory instrument containing regulations under subsection (2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

Information relating to certain OFCOM functions

338A

(1) OFCOM may by notice (an “information notice”) require a person within subsection (4) to provide them with any information that they require for the purpose of carrying out their functions under—

(a) sections 198B to 198D,

(b) sections 263 to 294 and Schedule 11, and

(2) The power conferred by subsection (1) includes power to require a person within subsection (4) to obtain or generate information.

(3) The power conferred by subsection (1) must be exercised in a way that is proportionate to the use to which the information is to be put by OFCOM.

(4) The persons within this subsection are—

(a) a provider of a licensed public service channel;

(b) S4C;

(d) a person who is not within any of paragraphs (a) to (c) but who provides a media service (within the meaning of section 264A);

(e) a person who was within any of paragraphs (a) to (d) at a time to which the required information relates;

(f) a person who is not within any of paragraphs (a) to (e) but who appears to OFCOM to have, or to be able to obtain or generate, information required by them as mentioned in subsection (1).

(5) An information notice must—

(a) specify or describe the information to be provided,

(b) specify why OFCOM require the information,

(d) contain information about the consequences of not complying with the notice.

(6) An information notice must specify when the information must be provided which may be—

(a) on or by a specified date, or

(b) within a specified period.

(7) The power conferred by subsection (1) to require the provision of information includes power to require the provision of information held outside the United Kingdom.

(8) OFCOM may not use the power conferred by subsection (1) to require the BBC to provide, obtain or generate information.

(9) The power conferred by subsection (1) does not include power to require the provision of information in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications, could be maintained in legal proceedings.

(10) A person to whom an information notice is given must provide the information in accordance with any requirements included in the notice (subject to subsection (11)).

(11) The duty under subsection (10) does not require a disclosure of information if that disclosure would contravene the data protection legislation (but, in determining whether a disclosure would do so, that duty is to be taken into account).

(12) In this section—

“data protection legislation” has the same meaning as in the Data Protection Act 2018 (see section 3 of that Act);

“public service broadcaster” has the meaning given by section 264.

338B

(1) This section applies if—

(a) OFCOM have given an information notice under section 338A to a person within section 338A(4), and

(b) OFCOM have determined, after giving the person an opportunity to make representations, that there are reasonable grounds for believing that there was, or is, a failure by the person to comply with the information notice.

(2) OFCOM may give the person a notice (a “penalty notice”) requiring the person to pay OFCOM a penalty of an amount specified in the notice.

(3) The penalty may include an amount for each day on which the person fails to comply with the information notice.

(4) The amount of the penalty under subsection (2) is to be such amount, not exceeding £250,000, as OFCOM determine to be—

(a) appropriate; and

(b) proportionate to the failure to comply in respect of which it is imposed.

(5) If the penalty notice is given in relation to a continuing failure to comply with the information notice, the penalty notice may also require the person to pay OFCOM a penalty of an amount specified in the penalty notice in respect of each day after the giving of the penalty notice on which the failure continues.

(6) The amount of a penalty under subsection (5) is to be such amount, not exceeding £500 per day, as OFCOM determine to be—

(a) appropriate; and

(b) proportionate to the failure to comply in respect of which it is imposed.

(7) A penalty notice must—

(a) fix a reasonable period after it is given as the period within which a penalty under subsection (2) is to be paid;

(b) where penalties under subsection (5) are imposed, fix a reasonable period as the period within which such a penalty is to be paid.

(8) A financial penalty imposed under this section must be paid to OFCOM within the period fixed by them.

Part 3B — Regulation of radio selection services

Designated radio selection services

362BA

(1) In this Part, “radio selection service” means a service provided by means of the internet which enables, or among other things enables, a user of the service—

(a) to make a selection between internet radio services provided by different providers, and

(b) to cause a selected internet radio service to play,

by giving spoken commands that are recorded by equipment connected to the internet.

(2) The Secretary of State may by regulations amend this section so as to alter the definition of “radio selection service”.

(3) The amendments that may be made by virtue of subsection (2) include—

(a) amendments adding, removing or altering a thing that a radio selection service is to enable a user to do, and

(b) amendments adding, removing or altering a way in which a radio selection service may be caused to operate.

(4) The power in section 402(3)(c) for regulations under subsection (2) to make consequential provision includes power to make provision which amends any enactment.

(5) Before making regulations under subsection (2), the Secretary of State must consult OFCOM.

(6) A statutory instrument containing regulations under subsection (2) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

362BB

(1) For the purposes of this Part, a “designated radio selection service” is a radio selection service designated by the Secretary of State by regulations.

(2) The Secretary of State may designate a radio selection service under subsection (1) only if the Secretary of State considers that the level of use of the service in the United Kingdom to listen to internet radio services is significant (and the Secretary of State may consider the level of use to be significant if the Secretary of State considers it to be significant in certain circumstances, such as while in a vehicle).

(3) Before making regulations under subsection (1), the Secretary of State must have received a report under section 362BC relating to the radio selection service in question.

(4) Before making regulations under subsection (1), the Secretary of State must consult—

(a) persons who appear to the Secretary of State to represent providers of radio selection services;

(b) persons who appear to the Secretary of State to represent providers of internet radio services;

(5) The Secretary of State may by regulations amend this section so as to add or remove a condition that must be satisfied before a radio selection service may be designated under subsection (1) or to alter such a condition.

(6) Subsection (4) applies in relation to the making of regulations under subsection (5) as it applies in relation to the making of regulations under subsection (1).

(7) The power in section 402(3)(c) for regulations under subsection (5) to make consequential provision includes power to make provision which amends any enactment.

(8) A statutory instrument containing regulations under subsection (5) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

362BC

(1) OFCOM may prepare reports making recommendations about the exercise of the power under section 362BB (1).

(2) Where—

(a) the Secretary of State proposes to make regulations under section 362BB (1), and

(b) the Secretary of State has not received a report under subsection (1) relating to the radio selection service or services that would be affected by the proposed regulations,

the Secretary of State must request OFCOM to prepare a report making recommendations about exercising the power under section 362BB (1) in relation to that service or those services.

(3) Where the Secretary of State makes a request under subsection (2), OFCOM must prepare such a report as soon as practicable.

(4) A report under subsection (1) or (3) relating to the exercise of the power under section 362BB (1) must include OFCOM’s assessment, in relation to each radio selection service in question, of—

(a) the number of members of the public using the service;

(b) the manner in which the service is used by those persons;

(d) such matters as OFCOM consider likely to affect the matters referred to in paragraph (a), (b) or (c).

(5) Where OFCOM prepares a report under subsection (1) or (3), OFCOM must—

(a) give it to the Secretary of State, and

(b) publish it.

(6) If the Secretary of State exercises the power under section 362BB (1) in a manner which differs from recommendations made in a report under this section, the Secretary of State must publish, no later than the time at which the regulations are made, a statement of the reasons for doing so.

(7) OFCOM must draw up, and from time to time review and revise, a statement about the principles and methods to be followed by OFCOM when preparing reports under subsection (1) or (3).

(8) OFCOM must publish the statement and any revised statement.

362BD

(1) The Secretary of State may by regulations revoke the designation of a designated radio selection service.

(2) The provider of a designated radio selection service may request the Secretary of State to revoke its designation.

(3) The Secretary of State must revoke the designation of a designated radio selection service by regulations under subsection (1) if the Secretary of State considers that the level of use of the service in the United Kingdom to listen to internet radio services is not significant.

(4) Before revoking the designation of a designated radio selection service, the Secretary of State must have received a report from OFCOM making recommendations about the exercise of the power under subsection (1) in relation to that service.

(5) Where the Secretary of State requests OFCOM to prepare a report making recommendations about the exercise of the power under subsection (1) in relation to a designated radio selection service, OFCOM must—

(a) prepare such a report in relation to that service as soon as practicable,

(b) give it to the Secretary of State, and

362BE

(1) OFCOM must establish and maintain an up to date list of designated radio selection services and their providers.

(2) A provider of a designated radio selection service must give notice to OFCOM if the service ceases to be provided.

(3) A notice given to OFCOM under this section must—

(a) be sent in such manner as OFCOM may require;

(b) contain such information as OFCOM may require.

(4) OFCOM must publish the list on a publicly accessible part of their website.

Relevant internet radio services

362BF

(1) In this Part, “internet radio service” means a service, or a dissociable section of a service, which consists in the provision by a person of programmes consisting wholly of sound (together with any ancillary services) with a view to their being made available for reception by members of the public by being distributed by means of the internet (whether by the provider of the service or another person).

(2) In this section, “ancillary service”, in relation to an internet radio service, means a service which is provided by the provider of that internet radio service and consists in the provision of a service (other than advertising) which—

(a) is ancillary to the programmes included in that internet radio service and is directly related to their contents, or

(b) relates to the promotion or listing of such programmes.

362BG

(1) In this Part, “relevant internet radio service” means an internet radio service for the time being included in the list maintained by OFCOM under subsection (2).

(2) OFCOM must establish and maintain an up to date list of the internet radio services in relation to which the conditions in subsections (3) and (5) are satisfied and their providers.

(3) The condition in this subsection is that, in the opinion of OFCOM, the provider of the service has in place an effective system or process for securing that the service corresponds to a UK radio service that is provided by the provider of the internet radio service.

(4) For the purposes of subsection (3), an internet radio service corresponds to a UK radio service if, disregarding advertisements, all of the programmes included in the internet radio service are broadcast on the UK radio service at the same time as they are provided by the internet radio service.

(5) The condition in this subsection is that the provider of an internet radio service—

(a) has given notice to OFCOM requesting that the service be included in the list, and

(b) has not since then given notice to OFCOM under subsection (6) or (7).

(6) The provider of an internet radio service included in the list may give notice to OFCOM requesting that the service be removed from the list.

(7) The provider of an internet radio service included in the list must give notice to OFCOM if—

(a) that person ceases to be the provider of the service,

(b) that person ceases to be the provider of the UK radio service to which it relates, or

(8) A notice given to OFCOM under this section must—

(a) be sent in such manner as OFCOM may require;

(b) contain such information as OFCOM may require.

(9) OFCOM must take appropriate steps to keep the list up to date, including by carrying out further assessments of whether a provider of an internet radio service has in place such system or process as is described in subsection (3).

(10) OFCOM must publish the list on a publicly accessible part of their website.

(11) In this section—

“digital sound programme service” has the same meaning as in Part 2 of the 1996 Act (see section 40 of that Act);

“restricted service” has the same meaning as in section 245;

“short-duration restricted service” means a restricted service authorised to be provided by a licence under Part 3 of the 1990 Act where the period specified in the licence as the period for which the licence is in force is less than 12 months;

“sound broadcasting service” has the same meaning as in Part 3 of the 1990 Act (see section 126 of that Act);

“UK radio service” means—a sound broadcasting service, other than a short-duration restricted service, provided by the BBC or authorised to be provided by a licence under Part 3 of the 1990 Act, ora digital sound programme service provided by the BBC or authorised to be provided by a licence under Part 2 of the 1996 Act.

362BH

(1) The Secretary of State may by regulations—

(a) amend section 362BF so as to alter the definition of “internet radio service”;

(b) amend section 362BG so as to alter the definition of “relevant internet radio service”.

(2) The amendments that may be made by virtue of subsection (1)(a) include amendments adding or removing a condition that must be satisfied in relation to a service or altering such a condition.

(3) The amendments that may be made by virtue of subsection (1)(b) include amendments adding or removing a condition that must be satisfied in relation to an internet radio service or altering such a condition.

(4) The conditions for which provision may be made by virtue of subsection (3) include conditions preventing or restricting charging for allowing the internet radio service in question to be played.

(5) The power in section 402(3)(c) for regulations under subsection (1) to make consequential provision includes power to make provision which amends any enactment.

(6) Before making regulations under subsection (1), the Secretary of State must consult—

(a) OFCOM,

(b) persons who appear to the Secretary of State to represent providers of radio selection services,

(d) such other persons as the Secretary of State considers appropriate.

(7) A statutory instrument containing regulations under subsection (1) may not be made unless a draft of the instrument has been laid before and approved by each House of Parliament.

Regulation of radio selection services

362BI

(1) The provider of a designated radio selection service must take all reasonable steps to secure that users of the service—

(a) are able, within a reasonable period beginning with the inclusion of an internet radio service in the list under section 362BG—

(i) to select that internet radio service, and

(ii) to cause that service to play,

by giving spoken commands as described in section 362BA (1), and

(b) are able to continue to do so while that internet radio service is included in the list.

(2) The provider of a designated radio selection service must take all reasonable steps to secure that, where the service is used as described in subsection (1)—

(a) no items are played before the selected service is caused to play, other than—

(i) a brief identification of the selected service,

(ii) if the service employs another service (or other services) provided by means of the internet to cause the selected service to play, a brief identification of that other service (or one of those other services), and

(iii) if the provider of the selected service agrees, one or more advertisements, and

(b) the playing of the selected service is not interrupted.

This subsection is subject to subsection (5).

(3) Subsection (4) applies if the provider of a relevant internet radio service requests the provider of a designated radio selection service to secure that the service employs a particular method as regards that relevant internet radio service when complying with subsection (1) (for example, a method that involves the service employing another service provided by means of the internet to cause that relevant internet radio service to play).

(4) Where this subsection applies, the provider of the designated radio selection service must take all reasonable steps to secure that, on an occasion when the service is being used as described in subsection (1) in relation to that relevant internet radio service, the service employs that method, subject to subsection (5).

(5) Subsections (2) and (4) are not to be taken to require the provider of a designated radio selection service to override the preferences of a user of the service as to the way in which the service operates.

(6) A provider of a designated radio selection service—

(a) must not charge a provider of a relevant internet radio service for doing what that provider of a designated radio selection service is required to do by subsection (1), (2) or (4) in relation to that relevant internet radio service, and

(b) must not enter into an agreement that provides for the payment by a provider of a relevant internet radio service of charges, which would breach, or are capable of breaching, the prohibition in paragraph (a).

362BJ

(1) The provider of a designated radio selection service must draw up a statement about how the provider intends to comply with the duties and prohibition in section 362BI.

(2) The provider must keep the statement under review and, if appropriate, revise it.

(3) The provider must publish the statement and any revised statement.

362BK

(1) OFCOM must issue a code of practice describing actions that OFCOM recommend for the purpose of securing that the manner in which a designated radio selection service operates complies with the duties and prohibition in section 362BI.

(2) OFCOM may—

(a) revise a code of practice issued under this section and issue the code as revised;

(b) withdraw a code of practice issued under this section and issue a new code of practice.

(3) OFCOM must—

(a) publish a code of practice issued under this section in such manner as they consider appropriate;

(b) keep a code of practice issued under this section under review.

(4) If requested by the Secretary of State to review all or part of a code of practice issued under this section, OFCOM must review the code or that part of it.

(5) The actions recommended in a code of practice issued under this section may include—

(a) actions relating to particular descriptions of designated radio selection services;

(b) actions relating to particular descriptions of relevant internet radio services.

362BL

(1) The provider of a designated radio selection service is to be treated as complying with a duty or prohibition in section 362BI if the provider takes the actions described in the code of practice which are recommended for the purpose of complying with that duty or prohibition.

(2) A failure by the provider of a designated radio selection service to act in accordance with a provision of the code of practice does not of itself make the provider liable to legal proceedings before a court or tribunal.

(3) In any legal proceedings before a court or tribunal, the court or tribunal must take into account a provision of the code of practice in determining any question arising in the proceedings if—

(a) the question relates to a time when the provision was in force, and

(b) the provision appears to the court or tribunal to be relevant to the question.

(4) OFCOM must take into account a provision of the code of practice in determining any question arising in connection with the carrying out by them of a relevant function if—

(a) the question relates to a time when the provision was in force, and

(b) the provision appears to OFCOM to be relevant to the question.

(5) In this section, “relevant function” means a function conferred on OFCOM by any of sections 362BR to 362BW (enforcement).

362BM

(1) Before issuing a code of practice under section 362BK, OFCOM—

(a) must publish a draft of the code or (as the case may be) a draft of the revisions of the existing code;

(b) must consult the following about the draft—

(i) the Secretary of State;

(ii) persons who appear to OFCOM to represent providers of internet radio services;

(iii) persons who appear to OFCOM to represent providers of radio selection services;

(iv) such other persons as OFCOM consider appropriate;

(2) Subsection (1) does not apply in relation to revisions of the code of practice if—

(a) OFCOM give the Secretary of State a draft of the revisions of the existing code, and

(b) the Secretary of State agrees that it is not necessary for subsection (1) to apply in relation to the revisions.

362BN

The provider of a designated radio selection service must establish and maintain procedures for the handling and resolution of complaints made by providers of relevant internet radio services that the provider is failing, or has failed, to comply with a duty or prohibition in section 362BI.

Modification of regulation of radio selection services

362BO

(1) The Secretary of State may by regulations amend this Part so as to add to the duties and prohibitions imposed on providers of radio selection services or to alter or remove such a duty or prohibition.

(2) The provision that may be made by regulations under subsection (1) includes—

(a) provision about enabling the use of a radio selection service to select and cause to play any relevant internet radio service of a particular sort (for example, a service characterised by the nature of its contents or the identity of its provider);

(b) provision about the terms and conditions that may be offered by the provider of a radio selection service to the provider of a relevant internet radio service for or in connection with the use of the service to access the relevant internet radio service;

(c) provision about the charges that may be imposed by the provider of a radio selection service on the provider of a relevant internet radio service in connection with the use of the service to access the relevant internet radio service;

(d) provision about the publication of information about such terms, conditions and charges.

(3) The power in section 402(3)(c) for regulations under subsection (1) to make consequential provision includes power to make provision which amends any enactment.

(4) Before making regulations under subsection (1), the Secretary of State must have received a report of a review under section 362BP.

(5) Before making regulations under subsection (1), the Secretary of State must consult—

(a) persons who appear to the Secretary of State to represent providers of internet radio services;

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