The Small-scale Radio Multiplex and Community Digital Radio Order 2019

Made: 24th October 2019

Coming into force: 25th October 2019

In accordance with sections 258A(8) and 262(5) of that Act a draft of this instrument has been laid before Parliament and approved by a resolution of each House of Parliament.

Citation and commencement

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This Order may be cited as the Small-scale Radio Multiplex and Community Digital Radio Order 2019 and comes into force on the day after the day on which it is made.

Interpretation

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• (1) In this Order—

• “2003 Act” means the Communications Act 2003;

• “community” means—the persons who live or work or undergo education or training in a particular area or locality, orpersons who, in a particular area or locality, have one or more interests or characteristics in common;

• “community digital sound programme licence” means a licence to provide a community digital sound programme service;

• “community digital sound programme service” means a digital sound programme service having the description set out in article 4;

• “community radio service” has the meaning given in article 2(1) of the Community Radio Order 2025;

• “local radio multiplex licence” and “local radio multiplex service” each has the same meaning as in Part 2 of the 1996 Act[^f00003] (see sections 40 and 72 of that Act);

• “small-scale radio multiplex service” means a radio multiplex service that is provided for a particular area or locality in the United Kingdom and is of the description specified by article 3;

• “social enterprise” means a business which has as its primary objective the support of one or more projects of a social nature (rather than the production of a financial profit);

• “social gain” has the meaning given by paragraph (2).

• (2) In relation to a community digital sound programme service, “social gain” means the achievement, in respect of individuals or groups of individuals in the community that the service is intended to serve, or in respect of other members of the public, of the following objectives—

• (a) the facilitation of discussion and the expression of opinion,

• (b) the provision (whether by means of programmes included in the service or otherwise) of education or training to individuals not employed by the person providing the service, and

• (c) the better understanding of the particular community and strengthening of links within it,

and may also include the achievement of other objectives of a social nature and, in particular, those mentioned in paragraph (3).

• (3) Those objectives are—

• (a) the delivery of services provided by local authorities and other services of a social nature and the increasing, and wider dissemination, of knowledge about those services and about local amenities;

• (b) the promotion of economic development and of social enterprises;

• (c) the promotion of employment;

• (d) the provision of opportunities for the gaining of work experience;

• (e) the promotion of social inclusion;

• (f) the promotion of cultural and linguistic diversity;

• (g) the promotion of civic participation and volunteering.

• (4) In this Order, in relation to any service which is intended to serve more than one community, any reference to the community which that service is intended to serve is to be taken to include a reference to every such community.

• (5) In this Order, any reference to an area overlapping with another includes reference to it lying wholly inside the other area.

Description of small-scale radio multiplex services

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A small-scale radio multiplex service is a radio multiplex service that is provided for a particular area or locality in the United Kingdom and is of the following description—

• (a) the service is not provided under a local radio multiplex licence, and

• (b) either—

• (i) where the area or locality for which the service is provided overlaps with the coverage area of a local radio multiplex service, the size of the overlapping area is smaller than the size of the coverage area of that local radio multiplex service, or

• (ii) where the area or locality for which the service is provided does not overlap with the coverage area of a local radio multiplex service, the size of that area or locality is not larger than 7,500 square kilometres.

Description of a community digital sound programme service

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• (1) A community digital sound programme service is a digital sound programme service of the following description—

• (a) it is provided for broadcasting by means of a small-scale or local radio multiplex service,

• (b) it is intended only for reception within a particular area or locality, and

• (c) it has the characteristics set out in paragraphs (2) to (6).

• (2) It is a characteristic of a community digital sound programme service that it is provided primarily—

• (a) for the good of members of the public, or of particular communities, and

• (b) in order to deliver social gain,

rather than primarily for commercial reasons or for the financial or other material gain of the individuals involved in providing the service.

• (3) It is a characteristic of a community digital sound programme service that it is intended primarily to serve one or more communities (whether or not it also serves other members of the public).

• (4) It is a characteristic of a community digital sound programme service that the person providing the service—

• (a) does not do so in order to make a financial profit by so doing, and

• (b) uses any profit that is produced in the provision of the service wholly and exclusively for securing or improving the future provision of the service, or for the delivery of social gain to members of the public or the community that the service is intended to serve.

• (5) It is a characteristic of a community digital sound programme service that members of the community it is intended to serve are given opportunities to participate in the operation and management of the service.

• (6) It is a characteristic of a community digital sound programme service that, in respect of the provision of that service, the person providing the service makes themselves accountable to the community that the service is intended to service.

Disqualified persons

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• (1) Part 2 of Schedule 2 to the 1990 Act[^f00004] (disqualification for holding licences) has effect in relation to community digital sound programme licences as if the persons who are disqualified persons by virtue of that Part of that Schedule included, in relation to such licences, any person falling within paragraph (2).

• (2) Those persons are—

• (a) any person who is not a body corporate;

• (b) any body corporate falling within paragraph (3);

• (c) any C4 company or S4C company that would not otherwise be a disqualified person by virtue of paragraph (3).

• (3) A body corporate falls within this paragraph if—

• (a) that body holds at least one relevant Broadcasting Act licence, or

• (b) that body is connected with a person who holds one or more such licences.

• (4) In this article, a relevant Broadcasting Act licence is a Broadcasting Act licence which is not a licence to provide one of the following services—

• (a) a community radio service;

• (b) a digital sound programme service;

• (c) a restricted service;

• (d) a radio licensable content service;

• (e) a restricted television service;

• (f) a small-scale radio multiplex service;

• (g) a television licensable content service;

• (h) a local digital television programme service.

• (5) Part 2 of Schedule 2 to the 1990 Act (disqualification for holding licences) has effect in relation to community digital sound programme licences as if—

• (a) paragraphs 1(1)(f) (individual who is an officer of a political body etc.) and 3 (certain publicly-funded bodies) were omitted;

• (b) in paragraph 4 (persons disqualified on grounds that they are subject to undue influence)—

• (i) in sub-paragraph (1)(a), for “relevant body” there were substituted “person”;

• (ii) sub-paragraph (2) were omitted.

• (6) In this article—

• “local digital television programme service” has the meaning given in article 3 of the Local Digital Television Programme Services Order 2012[^f00005];

• “restricted service” has the meaning given in section 245(4)(c) of the 2003 Act.

Application of broadcasting legislation

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Part 2 of the 1996 Act (digital terrestrial sound broadcasting) has effect—

• (a) in relation to a small-scale radio multiplex service with the modifications set out in Parts 1 and 3 of the Schedule;

• (b) in relation to a community digital sound programme service with the modifications set out in Parts 2 and 3 of the Schedule.

Amendment of the Community Radio Order 2004

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

SCHEDULE — Modifications of the 1996 Act

PART 1 — Modifications of Part 2 of the 1996 Act in relation to small-scale radio multiplex services

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Part 2 of the 1996 Act has effect with the following modifications.

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Section 40 (radio multiplex services) has effect as if in subsection (4), before paragraph (a) there were inserted—

(za) a small-scale radio multiplex service,

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Section 44 (restrictions on holding of licences under Part 2) has effect as if—

• (a) in subsection (1)—

• (i) at the end of paragraph (a) “and” were omitted;

• (ii) after paragraph (a) there were inserted—

(aa) that a person does not become or remain the holder of a licence if the person is disqualified in relation to that licence by section 44A;

• (b) in subsection (2)—

• (i) after paragraph (a)(i) there were inserted—

(ia) whether the applicant is disqualified from holding a licence as is mentioned in subsection (1)(aa),

• (ii) at the end of paragraph (db)(ii)[^f00007] there were inserted “or”;

• (iii) after paragraph (db)(ii) there were inserted—

(iii) whether the licence holder is disqualified from holding a licence by virtue of section 44A;

• (c) in subsection (8), in paragraph (c)[^f00008], after “the 1990 Act” there were inserted “or section 44A”.

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Part 2 has effect as if after section 44 there were inserted—

(44A) (1) The following persons are disqualified from holding a small-scale radio multiplex licence— (a) a person who is not a body corporate; (b) a body corporate which is the holder of more than 20 per cent of small-scale radio multiplex licences; (c) a body corporate in which a person is a participant where that person is a participant in bodies corporate holding, taken together, more than 20 per cent of small-scale radio multiplex licences; (d) a body corporate which is the holder of a national radio multiplex licence or a national sound broadcasting licence; (e) a body corporate in which the holder of a national radio multiplex licence or a national sound broadcasting licence is a participant with more than a 30 per cent interest; (f) a body corporate in which the holder of a national radio multiplex licence or a national sound broadcasting licence is a participant where the holder of the national radio multiplex licence or national sound broadcasting licence is a participant in one or more bodies holding, taken together, more than 6 small-scale radio multiplex licences; (g) a body corporate which is the holder of a local radio multiplex licence where the coverage area of the small-scale radio multiplex licence overlaps with the coverage area of the local radio multiplex licence; (h) a body corporate in which the holder of a local radio multiplex licence is a participant with more than a 30 per cent interest where the coverage area of the small-scale radio multiplex licence overlaps with the coverage area of the local radio multiplex licence. (2) A body corporate which is the holder of a small-scale radio multiplex licence is disqualified from holding another small-scale radio multiplex licence where the coverage area of each of the licences overlaps, in Ofcom’s opinion, to a significant extent with the coverage area of the same local radio multiplex service. (3) Paragraphs (b) and (c) of subsection (1) do not apply where fewer than twenty small-scale radio multiplex licences have been granted. (4) For the purposes of this section— (a) any body corporate which is connected with a person which holds a national radio multiplex licence, a national sound broadcasting licence, a local radio multiplex licence or a small-scale radio multiplex licence is to be treated as if it also were a holder of that licence; (b) one person is to be treated as being connected with another person if the person would be so treated for the purposes of Schedule 2 to the 1990 Act[^f00009]; (c) “participant” has the same meaning as in Schedule 2 to the 1990 Act[^f00010]; (d) any reference to a participant with more than a 30 per cent interest in a body corporate is a reference to a person who— (i) holds or is beneficially entitled to more than 30 per cent of the shares in that body, or (ii) possesses more than 30 per cent of the voting power in that body.

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Part 2 has effect as if after section 49 there were inserted—

(49A) (1) In exercising their power to grant or renew a small-scale radio multiplex licence, OFCOM must reserve to the holders of community digital sound programme licences such digital capacity as OFCOM consider appropriate to enable at least three community digital sound programme services to be received within the coverage area of the licence. (2) OFCOM, in performing their duty under subsection (1), must have regard to the likely demand for digital capacity by persons providing or proposing to provide community digital sound programme services in the coverage area of the licence. (3) A small-scale radio multiplex licence must include such conditions as appear to OFCOM to be appropriate for the purpose of securing that the holder of the licence uses the digital capacity reserved pursuant to subsection (1) solely for the purpose of broadcasting community digital sound programme services. (4) OFCOM may, if the requirements of subsections (5) to (8) are met, vary a small-scale radio multiplex licence by varying the digital capacity reserved for community digital sound programme services. (5) OFCOM must have received an application for the variation from the licence holder. (6) Before deciding whether to grant the application, OFCOM must publish a notice specifying— (a) the proposed variation of the licence, and (b) the period in which representations may be made to OFCOM about the proposal. (7) OFCOM must not vary the licence if it appears to them that, if the application were granted, the digital capacity reserved would not be sufficient to enable three community digital sound programme services to be received within the coverage area of the licence. (8) OFCOM may vary the licence in accordance with the application only if— (a) a period of not less than three years has elapsed since the licence was granted, (b) a part of the digital capacity reserved in pursuance of this section is unused, and (c) they are satisfied— (i) the holder of the licence has taken reasonable steps to identify persons who may be interested in providing a community digital sound programme service within the coverage area of the licence, (ii) the holder of the licence, in contracting or offering to contract with persons providing or proposing to provide community digital sound programme services, has acted in good faith, and (iii) it is unlikely that the unused capacity will be used during the remainder of the licence period.

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Section 50 (local radio multiplex licences) has effect as if—

• (a) in the heading, for “Local” there were substituted “Small-scale”;

• (b) for subsection (1) there were substituted—

(1) Where OFCOM propose to grant a licence to provide a small-scale radio multiplex service they must publish, in such manner as they consider appropriate, a notice under subsection (2).

• (c) in subsection (2)—

• (i) in paragraph (a), for “local” there were substituted “small-scale”;

• (ii) in paragraph (b), after “specifying the” there were inserted “intended”;

• (iii) for paragraph (d) there were substituted—

(d) specifying the digital capacity on the frequency in that area or locality to be reserved for the broadcasting of community digital sound programme services,

• (d) after subsection (2) there were inserted—

(2A) In determining the area or locality to be specified under subsection (2)(c), OFCOM must have regard to the following matters— (a) the extent to which there is demand for, or support for, the provision of community digital sound programme services and local digital sound programme services in the area or locality; (b) whether the area or locality is appropriate for securing the provision of community digital sound programme services and local digital sound programme services; (c) where the area or locality overlaps with the coverage area of a local radio multiplex service, the desirability of ensuring that the population of the overlapping area is less than 40 per cent of the population of the coverage area of that local radio multiplex service.

• (e) for subsection (3) there were substituted—

(3) When publishing a notice under subsection (2), OFCOM may publish with the notice such general guidance as to the requirements to be met by applications made in pursuance of the notice as they consider appropriate.

• (f) in subsection (4)—

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

• (ii) in paragraph (f), the words from “and his projected” to “in force” were omitted;

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

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