C5Part III Independent Radio Services

Annotations:
Modifications etc. (not altering text)
C5

Pt. III: transfer of functions (29.12.2003) by Communications Act 2003 (c. 21), s. 411(2), Sch. 1 para. 5 (with Sch. 18); S.I. 2003/3142, art. 3(1), Sch. 1 (with art. 11)

C5Chapter I Regulation by Authority of Independent Radio Services Generally

Establishment of Radio Authority

F883 The Radio Authority.

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Function of Authority

F984 Regulation by Authority of independent radio services.

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85 Licensing functions of Authority.

1

Subject to subsection (2), F12OFCOM may, in accordance with the following provisions of this Part, grant F13 licences to provide relevant independent radio services.

2

F12OFCOM shall do all that they can to secure the provision within the United Kingdom of—

a

a diversity of national services each catering for tastes and interests different from those catered for by the others and of which—

i

one is a service the greater part of which consists in the broadcasting of spoken material, and

ii

another is a service which consists, wholly or mainly, in the broadcasting of music which, in the opinion of F12OFCOM, is not pop music; and

b

a range and diversity of local services.

F113

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F114

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5

The Secretary of State may by order make such amendments of subsection (2)(a) as he considers appropriate—

a

for including in that provision a requirement that one of the national services there referred to should be a service of a particular description, or

b

for removing such a requirement from that provision;

and (without prejudice to the generality of section 200(2)(b)) any such order may make such consequential amendments of section 98(1)(b)(iii) as the Secretary of State considers appropriate.

6

In subsection (2)(a)(ii) “pop music” includes rock music and other kinds of modern popular music which are characterised by a strong rhythmic element and a reliance on electronic amplification for their performance (whether or not, in the case of any particular piece of rock or other such music, the music in question enjoys a current popularity as measured by the number of recordings sold).

7

An order shall not be made under subsection (5) unless a draft of it has been laid before and approved by a resolution of each House of Parliament.

F108

In this section “relevant independent radio services” means the following services so far as they are services falling to be regulated under section 245 of the Communications Act 2003—

a

sound broadcasting services;

b

radio licensable content services;

c

additional radio services.

General provisions about licences

86C5 Licences under Part III.

1

A licence shall be in writing and (subject to the provisions of this Part) shall continue in force F15(subject to a suspension of the licence under section 111B)—

a

in the case of a licence to provide radio licensable content services, until such time as it is surrendered or is revoked in accordance with any of the following provisions of this Part; and

b

in any other case, until whichever is the earlier of any such time or the end of the period specified in the licence.

2

A licence may be granted by F14OFCOM for the provision of such a service as is specified in the licence or for the provision of a service of such a description as is so specified; and (without prejudice to the generality of the preceding provision) a licence may be so granted for the provision of a service which to any extent consists in the simultaneous broadcasting of different programmes on different frequencies.

F163

A licence to provide a local or national service or to provide an additional service must specify a period of no more than twelve years as the period for which it is to be in force.

4

F14OFCOM —

a

shall not grant a licence to any person unless they are satisfied that he is a fit and proper person to hold it; and

b

shall do all that they can to secure that, if they cease to be so satisfied in the case of any person holding a licence, that person does not remain the holder of the licence;

and nothing in this Part shall be construed as affecting the operation of this subsection or of section 88(1) or (2)(b) or (c) or 89(1).

F14A

Where F14OFCOM are not satisfied that a BBC company which has applied for a licence is a fit and proper person to hold it, they shall, before refusing the application, notify the Secretary of State that they are not so satisfied.

5

F14OFCOM may vary a licence by a notice served on the licence holder if—

a

in the case of a variation of the period for which the licence is to continue in force, the licence holder consents; or

b

in the case of any other variation, the licence holder has been given a reasonable opportunity of making representations to F14OFCOM about the variation.

6

Paragraph (a) of subsection (5) does not affect the operation of F42section 97B F43, 105A or 110(1)(b); and that subsection shall not authorise the variation of any conditions included in a licence in pursuance of section 102(1) or section 118(1).

7

A licence granted to any person under this Part shall not be transferable to any other person without the previous consent in writing of F14OFCOM .

8

Without prejudice to the generality of subsection (7), F14OFCOM shall not give their consent for the purposes of that subsection unless they are satisfied that any such other person would be in a position to comply with all of the conditions included in the licence which would have effect during the period for which it is to be in force.

F179

The holding of a licence by a person shall not relieve him of—

a

any liability in respect of a failure to hold F38a licence under section 8 of the Wireless Telegraphy Act 2006; or

b

any obligation to comply with requirements imposed by or under Chapter 1 of Part 2 of the Communications Act 2003 (electronic communications networks and electronic communications services).

87C5 General licence conditions.

1

A licence may include—

a

such conditions as appear to F21OFCOM to be appropriate having regard to any duties which are or may be imposed on them, or on the licence holder, by or under this Act F19, the Broadcasting Act 1996 or the Communications Act 2003;

b

conditions enabling F21OFCOM to supervise and enforce technical standards in connection with the provision of the licensed service;

c

conditions requiring the payment by the licence holder to F21OFCOM (whether on the grant of the licence or at such times thereafter as may be determined by or under the licence, or both) of a fee or fees of an amount or amounts so determined;

C6d

conditions requiring the licence holder to furnish F21OFCOM, in such manner and at such times as they may reasonably require, with such information as they may require for the purpose of exercising the functions assigned to them by or under this Act F20, the Broadcasting Act 1996 or the Communications Act 2003;

e

conditions requiring the licence holder, if found by F21OFCOM to be in breach of any condition of his licence, to reimburse to F21OFCOM, in such circumstances as are specified in any conditions, any costs reasonably incurred by them in connection with the breach of that condition;

f

conditions providing for such incidental and supplemental matters as appear to F21OFCOM to be appropriate.

2

A licence may in particular include—

a

conditions requiring the licence holder—

i

to comply with any direction given by F21OFCOM as to such matters as are specified in the licence or are of a description so specified, or

ii

(except to the extent that F21OFCOM consent to his doing or not doing them) not to do or to do such things as are specified in the licence or are of a description so specified; and

b

conditions requiring the licence holder to permit—

i

any employee of, or person authorised by, F21OFCOM, F18...

F18ii

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

to enter any premises which are used in connection with the broadcasting of the licensed service and to inspect, examine, operate or test any equipment on the premises which is used in that connection.

3

The fees required to be paid to F21OFCOM by virtue of subsection (1)(c) shall be in accordance with such tariff as may from time to time be fixed by F21OFCOM; F22...

4

A tariff fixed under subsection (3) may specify different fees in relation to different cases or circumstances; and F21OFCOM shall publish every such tariff in such manner as they consider appropriate.

5

Where the holder of any licence—

a

is required by virtue of any condition imposed under this Part to provide F21OFCOM with any information, and

b

in purported compliance with that condition provides them with any information which is false in a material particular,

he shall be taken for the purposes of sections 110 and 111 to have failed to comply with that condition.

6

Nothing in this Act which authorises or requires the inclusion in a licence of conditions relating to any particular matter or having effect for any particular purpose shall be taken as derogating from the generality of subsection (1).

C488C5 Restrictions on the holding of licences.

C11

F31OFCOM shall do all that they can to secure—

C2a

that a person does not become or remain the holder of a licence if he is a person who is a disqualified person in relation to that licence by virtue of Part II of Schedule 2 to this Act; and

F23b

that a person does not become the holder of a licence if requirements imposed by or under Schedule 14 to the Communications Act 2003 would be contravened were he to do so; and

c

that those requirements are not contravened in the case of a person who already holds a licence.

2

F31OFCOM may accordingly—

a

require any applicant for a licence to provide them with such information as they may reasonably require for the purpose of determining—

i

whether he is such a disqualified person as is mentioned in subsection (1)(a),

ii

whether any such requirements as are mentioned in subsection (1)(b) would preclude them from granting a licence to him, and

iii

if so, what steps would be required to be taken by or in relation to him in order for any such requirements to be complied with;

b

revoke the award of a licence to a body where a relevant change takes place after the award, but before the grant, of the licence;

c

make the grant of a licence to any person conditional on the taking of any specified steps that appear to them to be required to be taken as mentioned in paragraph (a)(iii);

d

impose conditions in any licence enabling them to require the licence holder, if a body corporate, to give to them advance notice of proposals affecting—

i

shareholdings in the body, or

ii

the directors of the body,

where such proposals are known to the body;

F24da

impose conditions in a licence requiring the licence holder, if a body corporate, to give OFCOM notice, after they have occurred and irrespective of whether proposals for them have fallen to be notified, of changes, transactions or events affecting—

i

shareholdings in the body; or

ii

the directors of the body;

db

impose conditions in a licence enabling OFCOM to require the licence holder to provide them with such information as they may reasonably require for determining—

i

whether the licence holder is a disqualified person in relation to that licence by virtue of Part 2 of Schedule 2; or

ii

whether any such requirements as are mentioned in subsection (1)(b) have been and are being complied with by or in relation to the licence holder;

e

impose conditions in any licence enabling them to give the licence holder directions requiring him to take, or arrange for the taking of, any specified steps appearing to them to be required to be taken in order for any such requirements as are mentioned in subsection (1)(b) to be complied with.

F22A

Before revoking in pursuance of subsection (2)(b) the award of a licence to a BBC company, F31OFCOM shall give the Secretary of State notice of their intention to do so, specifying the relevant change.

3

Where F31OFCOM —

a

revoke the award of any licence in pursuance of subsection (2)(b), or

b

determine that any condition imposed by them in relation to any licence in pursuance of subsection (2)(c) has not been satisfied,

any provisions of this Part relating to the awarding of licences of the kind in question shall (subject to subsection (4)) have effect as if the person to whom the licence was awarded or granted had not made an application for it.

4

Those provisions shall not so have effect if F31OFCOM decide that it would be desirable to publish a fresh notice under this Part in respect of the grant of a licence, or (as the case may be) a further licence, to provide the service in question.

5

Every licence shall include such conditions as F31OFCOM consider necessary or expedient to ensure that where—

a

the holder of the licence is a body, and

b

a relevant change takes place after the grant of the licence,

F31OFCOM may revoke the licence by notice served on the holder of the licence and taking effect forthwith or on a date specified in the notice.

F36

The Commission shall not serve any such notice on the licence holder unless—

a

the Commission have notified him of the matters F25constituting their grounds for revoking the licence and given him a reasonable opportunity of making representations to them about those matters, and

b

in a case where the relevant change is one falling within subsection (6A)—

i

they have also given him an opportunity of complying with F26the requirements imposed by or under Schedule 14 to the Communications Act 2003 within a period specified in the notification, and

ii

the period specified in the notification has elapsed.

6A

A relevant change falls within this subsection if it consists only in one or more of the following—

F27a

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b

a change in the national market share (within the meaning of F28Part 1 of Schedule 14 to the Communications Act 2003) of one or more national newspapers (within the meaning of that Part of that Schedule);

c

a change in the local market share (within the meaning of F44section 5) in a particular area of one or more local newspapers (within the meaning of F45Part 1 of Schedule 14 to the Communications Act 2003).

F296B

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F46C

F31OFCOM shall not serve any such notice as is mentioned in subsection (5) on a BBC company unless they have given the Secretary of State notice of their intention to do so, specifying the relevant change.

6D

Where F31OFCOM receive any written representations from a BBC company under subsection (6), they shall send a copy of the representations to the Secretary of State.

7

In this section “relevant change”, in relation to a body to which a licence has been awarded or granted, means—

a

any change affecting the nature or characteristics of the body, or

b

any change in the persons having control over or interests in the body, F5or

c

any other change giving rise to F30a disqualification under Part 2 of Schedule 2 to this Act or a contravention of a requirement imposed by or under Schedule 14 to the Communications Act 2003,

being F6(in any case) a change which is such that, if it fell to F31OFCOM to determine whether to award the licence to the body in the new circumstances of the case, they would be induced by the change to refrain from so awarding it.

89C5 Disqualification for holding licence on grounds of conviction for transmitting offence.

1

Subject to subsection (2), a person shall be disqualified for holding a licence under this Part if within the last five years he has been convicted of—

F39a

an offence under section 35 of the Wireless Telegraphy Act 2006 (unauthorised use etc of wireless telegraphy station or apparatus) consisting in the establishment or use of a wireless telegraphy station, or the installation or use of wireless telegraphy apparatus, for the purpose of making a broadcast (within the meaning of Part 5 of that Act);

F39aa

an offence under section 36 of that Act (keeping wireless telegraphy station or apparatus available for unauthorised use) where the relevant contravention of section 8 of that Act would constitute an offence falling within paragraph (a);

F39ab

an offence under section 37 or 38 of that Act (unlawful broadcasting offences);

F39b

an offence under Part 5 of that Act (prohibition of broadcasting from sea or air); or

c

an offence under section 97 below.

F322

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3

Every licence granted under this Part shall include conditions requiring the holder of the licence to do all that he can to ensure that no person who is disqualified for holding a licence by virtue of subsection (1) is F33concerned in—

a

the provision of the licensed service or the making of programmes included in it; or

b

the operation of F40a wireless telegraphy station used for broadcasting the service.

General provisions about licensed services

F3790 General requirements as to licensed services.

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F3791 General code for programmes.

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F3792 General provisions as to advertisements.

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F3793 Control of advertisements.

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F3794 Government control over licensed services.

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F3795 Monitoring by Authority of programmes included in licensed services.

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F3796 Audience research.

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Prohibition on providing unlicensed independent radio services

97 Prohibition on providing independent radio services without a licence.

C3C71

Subject to subsection (2), any person who provides any F35relevant regulated radio service without being authorised to do so by or under a licence under this Part F7or Part II of the Broadcasting Act 1996 shall be guilty of an offence.

F341A

In subsection (1) “relevant regulated radio service” means a service falling to be regulated by OFCOM under section 245 of the Communications Act 2003, other than a radio multiplex service.

2

The Secretary of State may, after consultation with F36OFCOM, by order provide that subsection (1) shall not apply to such services or descriptions of services as are specified in the order.

3

A person guilty of an offence under this section shall be liable—

a

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

b

on conviction on indictment, to a fine.

4

No proceedings in respect of an offence under this section shall be instituted—

a

in England and Wales, except by or with the consent of the Director of Public Prosecutions;

b

in Northern Ireland, except by or with the consent of the Director of Public Prosecutions for Northern Ireland.

5

Without prejudice to subsection (3) above, compliance with this section shall be enforceable by civil proceedings by the Crown for an injunction or interdict or for any other appropriate relief.

6

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

F41Digital switchover

Annotations:
Amendments (Textual)
F41

Ss. 97A 97B and cross-heading inserted (8.4.2010) by Digital Economy Act 2010 (c. 24), ss. 30(2), 47(2)(b)

97ADate for digital switchover

1

The Secretary of State may give notice to OFCOM nominating a date for digital switchover for the post-commencement services specified or described in the notice.

2

When nominating a date, or considering whether to nominate a date, the Secretary of State must have regard to any report submitted by OFCOM or the BBC under section 67(1)(b) of the Broadcasting Act 1996 (review of digital radio broadcasting).

3

The Secretary of State—

a

may nominate different dates for different services, and

b

may give notice to OFCOM withdrawing a nomination under this section.

4

In this section and section 97B—

  • “date for digital switchover”, in relation to a post-commencement service, means a date after which it will cease to be appropriate for the service to continue to be provided in analogue form;

  • “post-commencement service” means a local service, national service or additional service that is provided under a licence that—

    1. a

      was granted on or after the day on which this section comes into force, or

    2. b

      has been renewed under section 103B or 104AA.

97BVariation of licence period after date for digital switchover nominated

1

This section applies if the Secretary of State has nominated a date for digital switchover for a post-commencement service (and has not withdrawn the nomination).

2

If the period for which the licence to provide the post-commencement service is to continue in force ends after the date for digital switchover, OFCOM must by notice vary the licence so that the period ends on or before that date, subject to subsection (3).

3

OFCOM may not reduce the period so that it ends less than 2 years after the day on which they issue the notice, unless the licence holder consents to such a reduction.

4

If the period for which the licence to provide the post-commencement service is to continue in force ends on or before the date for digital switchover, OFCOM may not vary the licence so that the period ends after that date.