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

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

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

362BP

(1) OFCOM may prepare reports that review the adequacy of the regulation of radio selection services by this Part.

(2) Where—

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

(b) the Secretary of State has not received a report under subsection (1),

the Secretary of State must request OFCOM to prepare a report that reviews the adequacy of the regulation of radio selection services by this Part.

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

(4) OFCOM must give the Secretary of State a report prepared under subsection (1) or (3).

(5) OFCOM must publish reports given to the Secretary of State under this section.

Power to require information

362BQ

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

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

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

(4) The persons within this subsection are—

(a) a provider of a radio selection service;

(b) a provider of an internet radio service;

(c) a person who provides a relevant ancillary service in relation to a radio selection service or an internet radio service;

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

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

(5) The information that OFCOM may require under subsection (1) includes, in particular, information that they require for any one or more of the following purposes—

(a) the purpose of preparing a report under section 362BC (advice from OFCOM about the designation of a radio selection service);

(b) the purpose of preparing a report under section 362BD (advice from OFCOM about revoking the designation of a radio selection service);

(c) the purpose of assessing compliance with section 362BE (2) (duty of providers of radio selection services to notify OFCOM);

(d) the purpose of assessing whether a service is a relevant internet radio service (see sections 362BF and 362BG);

(e) the purpose of assessing compliance with section 362BG (7) (duty of providers of certain services to notify OCFOM);

(f) the purpose of assessing compliance with a duty or prohibition under section 362BI or 362BJ (access duties of providers of designated radio selection services etc);

(g) the purpose of preparing or reviewing a code of practice under section 362BK (code of practice relating to duties and prohibition under section 362BI);

(h) the purpose of assessing compliance with the duty under section 362BN (duty to establish and maintain complaints procedures);

(i) the purpose of preparing a report under section 362BP (reports reviewing adequacy of the regulation of designated radio selection services by this Part);

(j) the purpose of assessing compliance with any requirements imposed by a confirmation decision under section 362BS;

(k) the purpose of determining the appropriate fee that a provider is required to pay under section 362BX;

(l) the purpose of OFCOM’s monitoring role under section 362BZ1;

(m) the purpose of ascertaining the amount of a person’s or a group of entities’ qualifying worldwide revenue for the purposes of paragraph 3 or 4 of Schedule 16A.

(6) An information notice must—

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

(b) specify why OFCOM require the information,

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

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

(a) on or by a specified date, or

(b) within a specified period.

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

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

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

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

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

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

Enforcement

362BR

(1) OFCOM may give a notice under this section (a “provisional notice of contravention”) to a person if they consider that there are reasonable grounds for believing that the person has failed, or is failing, to comply with any duty or prohibition under section 362BE, 362BG, 362BI, 362BJ or 362BN.

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

(3) A provisional notice of contravention must—

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

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

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

(a) comply with the duty or prohibition, or

(b) remedy the failure to comply with it.

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

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

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

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

(6) A provisional notice of contravention must—

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

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

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

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

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

(b) must specify that period, and

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

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

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

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

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

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

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

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

362BS

(1) This section applies where—

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

(b) the period allowed for representations has expired.

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

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

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

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

(6) A confirmation decision must—

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

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

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

(a) complying with a notified duty or duties;

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

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

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

(10) OFCOM may give a confirmation decision to—

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

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

if that person was a provider of a designated radio selection service or (as the case may be) a relevant internet radio service at the time of the failure to which the decision relates.

362BT

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

(2) The notice must—

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

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

(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;

362BU

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

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

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

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

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

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

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

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

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

362BV

(1) This section applies where—

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

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

(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.

362BW

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

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

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

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

(a) the Secretary of State, and

(b) such other persons as they consider appropriate.

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

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

Supplemental provisions of Part 3B

362BX

(1) OFCOM may require any of the following persons to pay to OFCOM a fee of an amount determined by OFCOM—

(a) a provider of a relevant internet radio service;

(b) a provider of a designated radio selection service.

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

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

(a) that, on a year by year basis, the aggregate amount of the fees payable to OFCOM under subsection (1) is sufficient to meet, but does not exceed, the annual cost to OFCOM of carrying out their functions under this Part less an appropriate amount to take into account costs that will be met by fees payable by the BBC under section 198(4);

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

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

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

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

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

(c) the costs to them of carrying out their functions under this Part less an appropriate amount to take into account costs that have been or are to be met by fees payable by the BBC under section 198(4).

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

(a) carried forward, and

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

(6) OFCOM may repay a person some or all of a fee paid under subsection (1) if, in the case of a fee paid by the provider of a designated radio selection service—

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

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

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

(8) OFCOM—

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

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

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

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

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

362BY

(1) This section applies if—

(a) the provider of a relevant internet radio service or a designated radio selection service is liable to pay a fee to OFCOM under section 362BX, and

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

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

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

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

(3) A notice under subsection (2)—

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

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

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

(5) Subsection (6) applies if—

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

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

(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 362BZ for information which must be included in notices under this section.

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

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

362BZ

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(6) Such a notice must—

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

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

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

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

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

362BZ1

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

(a) designating or revoking the designation of a radio selection service (see sections 362BB and 362BD);

(b) deciding whether to take enforcement action under this Part and Schedule 16B (so far as relating to this Part).

362BZ2

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

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

(a) delivering it by hand to the person,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(11) In this section—

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

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

362BZ3

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

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

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

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

362BZ4

(1) In this Part—

“ancillary service”, in relation to an internet radio service, has the meaning given by section 362BF (except in the expression “relevant ancillary service”);

“designated radio selection service” has the meaning given by section 362BB;

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

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

“internet radio service” has the meaning given by section 362BF;

“provide”, in relation to a sound broadcasting service or digital sound programme service, has the same meaning as in Part 3 (see section 362(2) and (3));

“radio selection service” has the meaning given by section 362BA;

“relevant internet radio service” has the meaning given by section 362BG.

(2) A reference in this Part to the playing of an internet radio service includes a reference to providing its ancillary services (if any).

Chapter 1 — Introductory Provisions

368AA

(1) For the purposes of this Act, a service (or a dissociable section of a service) is a “non-UK on-demand programme service” if—

(a) it meets the conditions in paragraphs (a) to (d) of section 368A(1),

(b) it does not meet one or both of the conditions in paragraphs (e) and (f) of section 368A(1), and

(c) the members of the public for whose use it is made available are or include members of the public in the United Kingdom.

(2) Section 368A(5) to (7) applies in relation to a non-UK on-demand programme service as it applies in relation to an on-demand programme service.

368AB

(1) This section provides an overview of this Part.

(2) This Chapter (Chapter 1) gives the meaning of certain expressions used in this Part.

(3) Chapter 2 contains provision for the regulation of on-demand programme services (as defined by section 368A).

(4) Chapter 3—

(a) sets out the rules that apply for determining when an on-demand programme service (as defined by section 368A) or a non-UK on-demand programme service (as defined by section 368AA) is a Tier 1 service,

(b) makes provision for certain sections of Chapter 2 to apply in relation to a non-UK on-demand programme service that is a Tier 1 service in the same way that they apply in relation to an on-demand programme service, and

(c) makes provision for the additional regulation of Tier 1 services (whether on-demand programme services or non-UK on-demand programme services).

(5) Chapter 4 makes provision about the enforcement of certain provisions of Chapters 2 and 3.

(6) Chapter 5 makes supplementary provision.

Chapter 2 — Regulation of on-demand programme services

Chapter 3 — Regulation of Tier 1 services

Meaning of Tier 1 service

368HA

(1) In this Act, a “Tier 1 service” means—

(a) an on-demand programme service that falls within subsection (2), and

(b) an on-demand programme service, or a non-UK on-demand programme service, that is a Tier 1 service by virtue of regulations under section 368HB.

(2) An on-demand programme service falls within this subsection if it is an on-demand programme service that is being used by a public service broadcaster, other than the BBC, to contribute to the fulfilment of its public service remit.

(3) In this section, “public service remit”—

(a) in relation to S4C, has the meaning given by section 204A;

(b) in relation to the provider of a Channel 3 service or Channel 5, has the meaning given by section 265(2);

368HB

(1) The Secretary of State may by regulations provide that an on-demand programme service, or a non-UK on-demand programme service, is a Tier 1 service if it is specified, or falls within a description specified, in the regulations.

(2) The Secretary of State may make regulations under subsection (1) only if the Secretary of State is satisfied that it is appropriate for the providers of the services specified, or falling within a description specified, in the regulations to be subject to the duties imposed on providers of Tier 1 services.

(3) Before making regulations under subsection (1) (but after considering any report prepared by OFCOM under subsection (5) or (6)), the Secretary of State must publish on a publicly accessible part of an official website of His Majesty’s Government a list of the services, or descriptions, that the Secretary of State proposes to specify in the regulations.

(4) Regulations are not to be made under subsection (1) unless the period of five sitting days beginning with the first sitting day after the date on which the requirement in subsection (3) is met in relation to the regulations has expired.

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

(a) request OFCOM to prepare a report on the operation of the market in the United Kingdom for on-demand programme services and non-UK on-demand programme services, and

(b) have regard to the contents of that report.

(6) Where the Secretary of State is considering whether to make a second or subsequent set of regulations under subsection (1), the Secretary of State—

(a) may request OFCOM to prepare a further report on the operation of the market in the United Kingdom for on-demand programme services and non-UK on-demand programme services, and

(b) where a request is made, the Secretary of State must have regard to the contents of the report in deciding whether to make the regulations.

(7) In preparing a report requested under subsection (5)(a) or (6)(a), OFCOM must deal with any matters specified by the Secretary of State in the request (as well as any other matters that they consider appropriate).

(8) For the purposes of preparing a report requested under subsection (5)(a) or (6)(a), OFCOM may request any person who appears to be the provider of an on-demand programme service or a non-UK on-demand programme service to provide OFCOM with any information relating to that service that is specified in the request.

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

(10) Information provided in response to a request by OFCOM may be shared by OFCOM with the Secretary of State but may not be further shared (whether by OFCOM or the Secretary of State).

(11) A request under subsection (8) may—

(a) specify a period of time within which the information must be provided;

(b) specify the form and manner in which the information must be provided.

(12) A person who is requested to provide information under subsection (8) must comply with that request.

(13) In this section “sitting day” means a day on which both Houses of Parliament sit.

Duties relating to notification etc

368HC

(1) A person who provides a Tier 1 service must give OFCOM a notification (a “Tier 1 notification”) to that effect.

(2) Subsection (3) applies where—

(a) regulations are made under section 368HB (1), and

(b) a non-UK on-demand programme service is specified or falls within a description specified in the regulations.

(3) OFCOM must, for the purpose of assisting with compliance with subsection (1), inform the provider of that Tier 1 service of that fact.

(4) A person who gives a Tier 1 notification must also notify OFCOM if the person ceases to provide a Tier 1 service.

(5) A Tier 1 notification or a notification under subsection (4) must—

(a) be sent to OFCOM in such manner as they may require, and

(b) include such information as they may require.

368HD

(1) OFCOM must establish and maintain an up to date list of persons who have—

(a) given a Tier 1 notification to OFCOM under section 368HC (1), and

(b) not given a further notification under section 368HC (4).

(2) The list must include contact details which may be used by members of the public wishing to contact a Tier 1 service.

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

Application etc of Chapter 2 to certain Tier 1 services

368HE

(1) Subsection (2) applies where a non-UK on-demand programme service is a Tier 1 service by virtue of regulations under section 368HB.

(2) The following provisions of Chapter 2 apply in relation to the Tier 1 service as if any reference in those provisions to an on-demand programme service included a reference to the Tier 1 service—

(a) section 368C, so far as relating to the duties of the appropriate regulatory authority in relation to section 368D;

(b) section 368D (duties of service providers), apart from section 368D(2)(ca);

(d) section 368F (advertising);

(e) section 368FA (advertising: less healthy food and drink);

(f) section 368G (sponsorship);

(g) section 368H (prohibition of product placement and exceptions).

(3) A duty or prohibition arising by virtue of subsection (2) applies in relation to the Tier 1 service only on and after the end of the grace period that applies in relation to the Tier 1 service.

(4) In subsection (3), “the grace period”, in relation to a non-UK on-demand programme service that is a Tier 1 service, means the period of 12 months beginning with the day on which the non-UK on-demand programme service became a Tier 1 service.

(5) Where regulations under section 368HB (1) provide that a non-UK on-demand programme service specified in the regulations is a Tier 1 service, the regulations may also provide—

(a) that subsections (1) and (2) do not apply in relation to the service, or

(b) that those subsections apply in relation to the service as if the reference in subsection (4) to 12 months were a reference to such lesser period as may be specified in the regulations.

(6) Section 368D(3)(zb) applies in relation to an on-demand programme service that is a Tier 1 service by virtue of section 368HA (1)(a) with the modification that the reference in section 368D(3)(zb) to 60 days is to be read as a reference to 90 days.

Standards code for Tier 1 services

368HF

(1) OFCOM must prepare and publish a code containing standards set by them for the content of programmes to be included in Tier 1 services.

(2) The standards must be such as appear to OFCOM to be best calculated to secure the following objectives (“the standards objectives”)—

(a) that persons under the age of 18 are protected;

(b) that material likely to encourage or incite the commission of crime or to lead to disorder is not included in Tier 1 services;

(d) that news included in those services is reported with due accuracy;

(e) that the impartiality requirements described in section 368HG are met;

(f) that generally accepted standards are applied to the contents of those services so as to provide adequate protection for members of the public from the inclusion of offensive and harmful material;

(g) that the proper degree of responsibility is exercised with respect to the content of religious programmes included in those services.

(3) The standards included in the code to secure the objective described in subsection (2)(g) must, in particular, contain provision designed to secure that religious programmes do not involve—

(a) any improper exploitation of susceptibilities of the audience for such a programme, or

(b) any abusive treatment of the religious views and beliefs of those belonging to a particular religion or religious denomination.

(4) OFCOM may fulfil their duty to publish the code in such ways as OFCOM consider likely to bring the code to the attention of persons who are likely to be affected by it.

(5) OFCOM—

(a) must keep the code under review,

(b) may from time to time revise the code, and

(6) References in this Part to a code under this section are to be read, in relation to times after a revised code is published, as references to the code as revised.

(7) In this section—

“news” means news in whatever form it is included in a service;

“programme” does not include an advertisement.

368HG

(1) The impartiality requirements referred to in section 368HF (2)(e) are—

(a) the exclusion from programmes included in any Tier 1 services of all expressions of the views or opinions of the person providing that service on—

(i) matters of political or industrial controversy, or

(ii) matters relating to current public policy;

(b) the preservation of due impartiality on the part of the person providing the service as respects those matters.

(2) Subsection (1)(a) does not require the exclusion of expressions of views or opinions relating to the provision of on-demand programme services or non-UK on-demand programme services.

(3) A code under section 368HF must make provision about the application of the requirement in subsection (1)(b), including provision about the ways in which the requirement may be met.

368HH

(1) In preparing or revising a code under section 368HF, OFCOM must, in particular and to such extent as appears to them to be relevant to securing the standards objectives, have regard to each of the matters set out in subsection (2).

(2) Those matters are—

(a) the likely expectation of potential audiences as to the nature of the content of programmes included in particular Tier 1 services;

(b) the degree of harm or offence likely to be caused by the inclusion of any particular sort of content, whether in programmes generally or in particular kinds of programmes;

(d) the extent to which, and the ways in which, information about the nature of the content of particular kinds of programmes or of particular programmes can be given in a way that enables individuals to make choices about whether they (or others for whom they have responsibility) view or continue to view that content;

(e) the likely effect of consideration being required in order to view a particular Tier 1 service or particular programmes included in a Tier 1 service;

(f) the length of time for which particular programmes are included in Tier 1 services;

(g) the desirability of maintaining the independence of editorial control over programme content.

(3) In preparing or revising a code under section 368HF, OFCOM must take account of such of the international obligations of the United Kingdom as the Secretary of State may notify to them for the purposes of this section.

(4) The Secretary of State may by regulations amend the list of matters in subsection (2).

(5) Before making regulations under subsection (4), the Secretary of State must consult OFCOM.

(6) A statutory instrument containing regulations under subsection (4) may not be made unless a draft of the instrument has been laid before and approved by a resolution of each House of Parliament.

368HI

(1) Before publishing a code under section 368HF, OFCOM must consult—

(a) persons appearing to OFCOM to represent the interests of potential audiences of Tier 1 services;

(b) such persons providing on-demand programme services or non-UK on-demand programme services as OFCOM think fit; and

(2) For the purposes of the consultation, OFCOM must publish a draft of the code.

(3) After considering any views expressed by those persons, OFCOM may—

(a) publish the code in the terms of the draft published for the purposes of the consultation, or

(b) modify the draft and publish the code in the terms of the draft as modified.

(4) Subsections (1) to (3) apply to a revision of a code under section 368HF as they apply to a code.

Duties of Tier 1 providers as regards Tier 1 standards code

368HJ

(1) A person who provides a Tier 1 service must observe the code for the time being published under section 368HF.

(2) The duty under subsection (1) applies only on and after the end of the grace period that applies in relation to the service.

(3) In subsection (2), “the grace period”, in relation to a Tier 1 service, means the period of 12 months beginning with whichever is the later of the following—

(a) the day on which the on-demand programme service, or non-UK on-demand programme service, became a Tier 1 service;

(b) the day when the first code under section 368HF was published.

(4) Where regulations under section 368HB (1) provide that an on-demand programme service, or a non-UK on-demand programme service, specified in the regulations is a Tier 1 service, the regulations may also provide—

(a) that subsections (2) and (3) do not apply in relation to the service, or

(b) that those subsections apply in relation to the service as if the reference in subsection (3) to 12 months were a reference to such lesser period as may be specified in the regulations.

Complaints relating to Tier 1 standards code

368HK

(1) OFCOM must establish and maintain procedures for the handling and resolution of complaints that a person who provides a Tier 1 service is failing, or has failed, to comply with section 368HJ (1).

(2) A person who provides a Tier 1 service must establish and maintain procedures for the handling and resolution of complaints that the person is failing, or has failed, to comply with section 368HJ (1).

Accessibility code for Tier 1 services

368HL

(1) OFCOM must prepare and publish a code imposing requirements on providers of Tier 1 services for the purpose of ensuring that such services are accessible to people with disabilities, including, in particular, people with disabilities affecting their sight or hearing, or both.

(2) The code must include provision requiring providers of Tier 1 services to report annually to OFCOM about—

(a) the accessibility of their services to people with disabilities;

(b) the steps taken to secure the quality and usability of the means by which their services are made accessible to people with disabilities.

(3) The code must include provision requiring every provider of a Tier 1 service to ensure that adequate information about the assistance for disabled people that is provided in relation to that service is made available to those who are likely to want to make use of it.

(4) The code must include provision requiring the provider of a Tier 1 service, from the second anniversary of the relevant date, to secure that, in the 12 month period beginning with that second anniversary and in the succeeding 12 month period—

(a) at least 40 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by subtitling;

(b) at least 5 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by audio-description for the blind; and

(c) at least 2.5 per cent of the total catalogue hours of that service for that period consists of programmes that are presented in, or translated into, sign language.

(5) The code must include provision requiring the provider of a Tier 1 service, from the fourth anniversary of the relevant date, to secure that, in the 12 month period beginning with the fourth anniversary and in each succeeding 12 month period—

(a) at least 80 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by subtitling;

(b) at least 10 per cent of the total catalogue hours of that service for that period consists of programmes that are accompanied by audio-description for the blind; and

(c) at least 5 per cent of the total catalogue hours of that service for that period consists of programmes that are presented in, or translated into, sign language.

(6) A reference in any paragraph of subsections (4) and (5) to the total catalogue hours of a Tier 1 service for a period of time is a reference to the combined duration of the programmes available from the service within that period, other than those programmes excluded under subsection (7) in relation to the requirement in that paragraph.

(7) The code must set out, in relation to each of the paragraphs of subsections (4) and (5), the descriptions of programmes that are excluded for the purposes of the requirement in that paragraph.

This subsection does not restrict the provision which may be made under subsection (8).

(8) The code may include provision under which Tier 1 services specified in the code are wholly or partly exempted from some or all of the requirements set out in subsections (4) and (5).

(9) Provision in the code partly exempting a Tier 1 service may, in particular, provide for the exemption to apply in relation to particular methods, or particular descriptions of method, by which that service is available to members of the public.

(10) Before including in the code such provision as is described in subsection (7) or (8) in relation to a Tier 1 service, OFCOM must have regard, in particular, to—

(a) the extent of the benefit which would be conferred if the provider of the service were to comply with the requirements set out in subsections (4) and (5);

(b) the size of the audience for the service;

(c) the number of persons who would be likely to benefit from compliance with those requirements and the extent of the likely benefit for each of those persons;

(d) the extent to which persons accessing the service are resident in places outside the United Kingdom;

(e) the technical difficulty of compliance with those requirements; and

(f) the cost, in the context of the matters mentioned in paragraphs (a) to (e), of compliance with those requirements.

(11) The requirements that may be imposed by the code include, in particular—

(a) requirements as to lesser levels of assistance that apply before the date on which the requirements set out in subsection (4) or (5) fall to be complied with;

(b) requirements as to the provision of assistance for disabled people, or a description of disabled people, in the case of a Tier 1 service that is exempted or partly exempted.

(12) The code must also give guidance as to—

(a) the extent to which Tier 1 services should promote the understanding and enjoyment by people with disabilities (in particular, people with disabilities affecting their sight or hearing, or both) of the programmes to be included in Tier 1 services; and

(b) the means by which such understanding and enjoyment should be promoted.

(13) OFCOM—

(a) must keep the code under review,

(b) may from time to time revise the code, and

(14) OFCOM must publish the code, and every revision of it, in such manner as they consider appropriate, having regard to the need to make the code or revision accessible to people with disabilities, including, in particular, people with disabilities affecting their sight or hearing, or both.

(15) References in this Part to a code under this section are to be read, in relation to times after a revised code is published, as references to the code as revised.

(16) In this section, “programme” does not include an advertisement.

368HM

(1) The relevant date, in relation to a Tier 1 service, is the later of—

(a) the day on which the on-demand programme service, or non-UK on-demand programme service, became a Tier 1 service, and

(b) the day on which the first code under section 368HL was published.

(2) OFCOM may determine that a service provided by a person is to be treated for the purposes of section 368HL and this section as a continuation of a service previously provided by that person.

368HN

(1) Where it appears to the Secretary of State, in the case of Tier 1 services of a particular description, that the requirement specified in any paragraph of section 368HL (4) has been or is likely to be fulfilled in their case before the anniversary specified in section 368HL (4), the Secretary of State may by regulations modify section 368HL so as to do one or both of the following—

(a) increase the percentage so specified in relation to services of that description;

(b) substitute the first anniversary for the anniversary specified in section 368HL (4) in the case of services of that description.

(2) The Secretary of State may by regulations modify section 368HL so as to do one or both of the following—

(a) substitute a later anniversary for the anniversary specified in section 368HL (5);

(b) substitute a higher percentage for the percentage for the time being specified in any paragraph of section 368HL (5).

(3) The provision that may be made by regulations under this section includes—

(a) modifications for requiring the code to set out additional requirements to be fulfilled once the requirements previously required to be set out in the code have been fulfilled; and

(b) savings for the requirements previously set out in the code.

(4) Before making regulations under this section the Secretary of State must consult OFCOM.

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

368HO

(1) Before publishing a code or a revised code under section 368HL, OFCOM must consult—

(a) such persons appearing to OFCOM to represent the interests of people with disabilities as OFCOM think fit;

(b) such persons providing on-demand programme services or non-UK on-demand programme services as OFCOM think fit; and

(2) For the purposes of the consultation, OFCOM must publish a draft of the code.

368HP

A provider of a Tier 1 service must comply with such of the requirements of the code under section 368HL as apply to that provider.

Reports to Secretary of State

368HQ

OFCOM may from time to time report to the Secretary of State on any issues which—

(a) have been identified by them in the course of carrying out their functions in relation to Tier 1 services, and

(b) appear to them to raise questions of general policy about the regulation of those services.

Application of Chapter 3

368HR

The duties of providers of Tier 1 services under or by virtue of this Chapter apply in relation to those services only so far as they are made available for use by members of the public in the United Kingdom.

Chapter 4 — Enforcement: general

Chapter 5 — Supplementary

368OZA

(1) Any power to require the provision of information under section 368HB, 368O or 368OB includes power to require the provision of information held outside the United Kingdom.

(2) In the following provisions of this section, a “Part 4A information duty” means—

(a) the duty under section 368HB (12);

(b) the duty under section 368O (10);

(3) Sections 368I and 368K apply in relation to a failure by a provider of an on-demand programme service, or a non-UK on-demand programme service that is a Tier 1 service, to comply with a Part 4A information duty as if that failure were a contravention of section 368D.

(4) Section 368I applies in relation to a failure by a person other than one described in subsection (3) to comply with a Part 4A information duty falling within subsection (2)(a) or (b) as if that failure were a contravention of section 368D.

(5) Where section 368I applies in accordance with subsection (4)—

(a) references in section 368I or 368J to a provider of an on-demand programme service are to be read as references to the person who has failed to comply with the Part 4A information duty, and

(b) section 368J(1) applies as if, for the words “5 per cent. of the provider’s applicable qualifying revenue or £250,000, whichever is the greater amount”, there were substituted “£250,000”.

Audience protection reviews etc

368OB

(1) As soon as practicable after this section comes into force, OFCOM must carry out a review of audience protection measures in use by providers of—

(a) on-demand programme services, or

(b) non-UK on-demand programme services that are Tier 1 services.

(2) The scope of that review is to consider whether the audience protection measures are adequate for the purpose of assisting the providers to comply with the duties imposed on them by or under this Act for the protection of audiences from harm.

(3) After the review under subsection (1), OFCOM may carry out further reviews for the same purpose at such times as appear appropriate to OFCOM.

(4) “Audience protection measures” are measures that are capable of assisting in protecting audiences from harm, the following being examples—

(a) age rating or other classification systems;

(b) content warnings;

(d) age assurance measures.

(5) OFCOM may request any provider described in subsection (1) to provide OFCOM with information about its audience protection measures for the purposes of a review under subsection (1) or (3).

(6) OFCOM may also request any provider described in subsection (1) to provide OFCOM with information about its audience protection measures where, in consequence of a review or anything else done in the exercise of their functions, they are concerned that the measures in use by that provider are or might be inadequate.

(7) A request under subsection (5) or (6) must specify or describe the information to be provided and may also—

(a) specify a period of time within which the information must be provided;

(b) specify the form and manner in which the information must be provided.

(8) A request under subsection (6) may specify that information is to be provided at intervals specified by OFCOM.

(9) A provider described in subsection (1) must comply with a request under subsection (5) or (6).

(10) OFCOM may publish any information provided to them under this section.

368QA

Section 362AZ10 (notices) applies in relation to a notice that may or must be given by OFCOM under any provision of this Part as it applies in relation to a notice that may or must be given by them under any provision of Part 3A.

Penalties under Parts 3A and 3B etc

392A

Schedule 16A contains provision about the amount of penalties that OFCOM may impose under Part 3A or 3B, and makes further provision about such penalties.

392B

Schedule 16B contains provision for the purposes of Parts 3A and 3B about—

(a) the giving of joint provisional notices of contravention to parent entities etc,

(b) the liability of parent entities for failures by subsidiary entities,

(d) the liability of fellow subsidiary entities for failures by subsidiary entities, and

(e) the liability of controlling individuals for failures by entities.

General restrictions on disclosure of information

Expenses

Schedule 16A

Interpretation

1

References in this Schedule to a penalty are to—

(a) a penalty imposed by a confirmation decision (see sections 362AZ1 (8) and 362BS (8));

(b) a penalty imposed by a penalty notice under section 362AZ4 (2) or 362BV (2);

2

(1) In determining the amount of a penalty to be imposed on a person, OFCOM must, in particular, take into account—

(a) any representations made, and evidence provided, by the person, and

(b) the effects of the failure or failures in respect of which the penalty is imposed.

(2) In the case of a penalty imposed by a confirmation decision, OFCOM must also take into account any representations made, and evidence provided, by any other person to whom the provisional notice of contravention relating to the same matter was given.

(3) OFCOM must also take into account—

(a) in the case of a penalty imposed by a confirmation decision, any steps taken by the person towards—

(i) complying with the duty or duties specified in the provisional notice of contravention given to the person, or

(ii) remedying the failure to comply with that duty or those duties;

(b) in the case of a penalty imposed by a penalty notice, any steps taken by the person towards—

(i) complying with the duty or duties specified in the confirmation decision given to the person, or

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

(4) A penalty must be of an amount that OFCOM consider to be—

(a) appropriate, and

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

(5) See also section 392 (which requires OFCOM to produce guidelines about their determination of penalties that they impose).

3

(1) Sub-paragraph (2) applies where—

(a) a penalty is imposed on a person in respect of a regulated television selection service that is or was at any time provided by that person,

(b) a penalty is imposed on a person other than the BBC or S4C in respect of a designated internet programme service that is or was at any time provided by that person,

(c) a penalty is imposed on a person in respect of a designated radio selection service that is or was at any time provided by that person, or

(d) a penalty is imposed on a person other than the BBC in respect of a relevant internet radio service that is or was at any time provided by that person,

and the person upon whom the penalty is imposed has an accounting period.

(2) The maximum amount of the penalty that may be imposed is whichever is the greater of—

(a) £250,000, and

(b) 5% of the person’s qualifying worldwide revenue for the person’s most recent complete accounting period.

(3) In any case other than that described in sub-paragraph (1), the maximum amount of the penalty that may be imposed is £250,000.

(4) If (in a case described in sub-paragraph (1)) the first accounting period of the person has not yet ended, sub-paragraph (2)(b) is to be read as referring to 5% of the amount that OFCOM estimate to be the person’s likely qualifying worldwide revenue for that period.

(5) If the duration of the accounting period by reference to which an amount of qualifying worldwide revenue is calculated is less than a year, the amount mentioned in sub-paragraph (2)(b) is to be increased proportionately.

(6) If the duration of the accounting period by reference to which an amount of qualifying worldwide revenue is calculated is more than a year, the amount mentioned in sub-paragraph (2)(b) is to be decreased proportionately.

(7) The amount of a person’s qualifying worldwide revenue for an accounting period is, in the event of a disagreement between the person and OFCOM, the amount determined by OFCOM.

(8) In this paragraph, “accounting period”, in relation to a person, means a period in respect of which accounts are prepared in relation to that person or, where that person is an individual, in respect of that individual’s business.

4

(1) This paragraph contains modifications of paragraph 3 where, in accordance with Schedule 16B, two or more entities are jointly and severally liable for a penalty.

(2) Sub-paragraphs (3) to (6) of this paragraph apply instead of paragraph 3 (1) to (4).

(3) If the entities do not include the BBC or S4C, the maximum amount of the penalty for which the entities are liable is whichever is the greater of—

(a) £250,000, and

(b) 5% of the qualifying worldwide revenue of the group of entities that consists of—

(i) the entity to which the confirmation decision or the penalty notice relates (“entity E”), and

(ii) every other entity which (at the time the confirmation decision or the penalty notice is given) is a group undertaking in relation to entity E.

(4) In any case other than that described in sub-paragraph (3), the maximum amount of the penalty for which the entities are liable is £250,000.

(5) In sub-paragraph (3)(b), the reference to the qualifying worldwide revenue of a group of entities is to—

(a) the amount of the group’s qualifying worldwide revenue for the most recent complete accounting period of the entities liable for the penalty, or

(b) if the first accounting period of the entities liable for the penalty has not yet ended, the amount that OFCOM estimate to be the group’s likely qualifying worldwide revenue for that period.

(6) In a case where the accounting periods of the entities liable for the penalty are different—

(a) the reference in sub-paragraph (5)(a) to the accounting period of the entities is to be read as a reference to the accounting period of any of the entities (at OFCOM’s discretion), and

(b) sub-paragraph (5)(b) is to apply as if—

(i) for “the first accounting period of the entities” there were substituted “the first accounting period of all the entities”, and

(ii) for “that period” there were substituted “the accounting period of any of the entities (at OFCOM’s discretion)”.

(7) Sub-paragraphs (5) to (7) of paragraph 3 are to be read with necessary modifications for the purposes of this paragraph.

(8) In this paragraph—

“accounting period”, in relation to an entity, means a period in respect of which accounts are prepared in relation to that entity;

“group undertaking” has the meaning given by section 1161(5) of the Companies Act 2006.

(9) For the purposes of this paragraph, sections 1161(5) and 1162 of, and Schedule 7 to, the Companies Act 2006—

(a) are to apply in relation to an entity which is not an undertaking (as defined in section 1161(1) of that Act) as they apply in relation to an undertaking, and

(b) are to be read with any necessary modifications if applied to an entity formed under the law of a country or territory outside the United Kingdom.

5

(1) The Secretary of State may by regulations amend any of the following provisions of this Schedule so as to substitute a different amount or a different percentage for the amount or percentage for the time being specified in that provision—

(a) paragraph 3 (2) (a);

(b) paragraph 3 (2) (b);

(d) paragraph 3 (4);

(e) paragraph 4 (3) (a);

(f) paragraph 4 (3) (b);

(g) paragraph 4 (4).

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

Recovery of penalties

6

(1) In England and Wales, a penalty is recoverable—

(a) if the county court so orders, as if it were payable under an order of that court;

(b) if the High Court so orders, as if it were payable under an order of that court.

(2) In Scotland, a penalty may be enforced in the same manner as an extract registered decree arbitral bearing a warrant for execution issued by the sheriff court of any sheriffdom in Scotland.

(3) In Northern Ireland, a penalty is recoverable—

(a) if a county court so orders, as if it were payable under an order of that court;

(b) if the High Court so orders, as if it were payable under an order of that court.

7

(1) For the purposes of this Schedule, OFCOM must produce a statement giving information about the amounts which it does, or does not, regard as comprising a person’s “qualifying worldwide revenue”.

(2) The statement must include provision about the application of that term to a group of entities for the purposes of paragraph 4 of this Schedule.

(3) The statement may make different provision in relation to different kinds of regulated television selection services, designated internet programme services, designated radio selection services and relevant internet radio services.

(4) Before producing the statement (including a revised or replacement statement), OFCOM must consult—

(a) the Secretary of State,

(b) the Treasury, and

(5) OFCOM must keep the statement under review.

(6) OFCOM must publish the statement (and any revised or replacement statement).

(7) OFCOM must send a copy of the statement (and any revised or replacement statement) to the Secretary of State and the Secretary of State must lay it before Parliament.

8

In this Schedule—

“designated internet programme service” has the same meaning as in Part 3A (and a reference to providing an internet programme service is to be construed in accordance with section 362AZ12 (2) to (5));

“designated radio selection service” has the same meaning as in Part 3B;

“regulated television selection service” has the same meaning as in Part 3A;

“relevant internet radio service” has the same meaning as in Part 3B.

Schedule 16B

1

In this Schedule—

“confirmation decision” means a notice under section 362AZ1 or 362BS;

“designated internet programme service” has the same meaning as in Part 3A (and a reference to providing an internet programme service is to be construed in accordance with section 362AZ12 (2) to (5));

“designated radio selection service” has the same meaning as in Part 3B;

“fellow subsidiary undertaking” has the meaning given by section 1161(4) of the Companies Act 2006;

“parent undertaking” and “subsidiary undertaking” are to be read in accordance with section 1162 of that Act;

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