SCHEDULES

SCHEDULE 2 Restrictions on the Holding of Licences

Part I General

1

1

In this Schedule—

  • F1“the 1996 Act” means the Broadcasting Act 1996;

  • “advertising agency” means an individual or a body corporate who carries on business as an advertising agent (whether alone or in partnership) or has control over any body corporate which carries on business as an advertising agent, and any reference to an advertising agency includes a reference to an individual who—

a

is a director or officer of any body corporate which carries on such a business, or

b

is employed by any person who carries on such a business;

  • “associate”—

F2a

in relation to a body corporate, shall be construed in accordance with paragraph (1A), and

b

in relation to an individual, shall be construed in accordance with sub-paragraph (2);

  • “control”—

a

in relation to a body corporate, shall be construed in accordance with sub-paragraph (3), and

b

in relation to any body other than a body corporate, means the power of a person to secure, F3by whatever means and whether directly or indirectly, that the affairs of the first-mentioned body are conducted in accordance with the wishes of that person;

  • F4“coverage area”, in relation to a service, shall be construed in accordance with paragraph 3A;

  • “digital programme service” has the same meaning as in Part I of the 1996 Act;

  • “equity share capital” has the same meaning as in the M1Companies Act 1985;

  • “local authority”—

a

in relation to England F5. . ., means any of the following, that is to say, the council of a county, district or London borough, the Common Council of the City of London and the Council of the Isles of Scilly;

F6aa

in relation to Wales, means a county council or county borough council;

b

in relation to Scotland, means a F7council constituted under section 2 of the Local Government etc. (Scotland) Act 1994; and

c

in relation to Northern Ireland, means a district council;

  • “local delivery licence” has the meaning given by section 72(5), and “local delivery service” has the meaning given by section 72(1);

  • F8“local digital sound programme service” and “national digital sound programme service” have the same meaning as in Part II of the 1996 Act;

  • “local radio multiplex service” and “national radio multiplex service” have the same meaning as in Part II of the 1996 Act;

  • “participant”, in relation to a body corporate, means a person who holds or is beneficially entitled to shares in that body or who possesses voting power in that body.

  • F9“television multiplex service” means a multiplex service within the meaning of Part I of the 1996 Act.

F101A

For the purpose of determining the persons who are the associates of a body corporate for the purposes of this Schedule—

a

an individual shall be regarded as an associate of a body corporate if he is a director of that body corporate, and

b

a body corporate and another body corporate shall be regarded as associates of each other if one controls the other or if the same person controls both.

2

For the purpose of determining the persons who are an individual’s associates for the purposes of this Schedule, the following persons shall be regarded as associates of each other, namely—

a

any individual and that individual’s husband or wife and any relative, or husband or wife of a relative, of that individual or of that individual’s husband or wife;

b

any individual and any body corporate of which that individual is a director;

c

any person in his capacity as trustee of a settlement and the settlor or grantor and any person associated with the settlor or grantor;

d

persons carrying on business in partnership and the husband or wife and relatives of any of them;

e

any two or more persons acting together to secure or exercise control of a body corporate or other association or to secure control of any enterprise or assets;

and in this sub-paragraph “relative” means a brother, sister, uncle, aunt, nephew, niece, lineal ancestor or descendant (the stepchild or illegitimate child of any person, or anyone adopted by a person, whether legally or otherwise, as his child, being regarded as a relative or taken into account to trace a relationship in the same way as that person’s child); and references to a wife or husband shall include a former wife or husband and a reputed wife or husband.

F113

For the purposes of this Schedule a person controls a body corporate if—

a

he holds, or is beneficially entitled to, more than 50 per cent. of the equity share capital in the body, or possesses more than 50 per cent. of the voting power in it, or

b

although he does not have such an interest in the body, it is reasonable, having regard to all the circumstances, to expect that he will be able, by whatever means and whether directly or indirectly, to achieve the result that the affairs of the body are conducted in accordance with his wishes; or

c

he holds, or is beneficially entitled to, 50 per cent. of the equity share capital in that body, or possesses 50 per cent. of the voting power in it, and an arrangement exists between him and any other participant in the body as to the manner in which any voting power in the body possessed by either of them is to be exercised, or as to the omission by either of them to exercise such voting power.

3A

For the purposes of sub-paragraph (3)(c)—

a

“arrangement” includes any agreement or arrangement, whether or not it is, or is intended to be, legally enforceable, and

b

a person shall be treated—

i

as holding, or being beneficially entitled to, any equity share capital which is held by a body corporate which he controls or to which such a body corporate is beneficially entitled, and

ii

as possessing any voting power possessed by such a body corporate.

4

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5

For the purposes of any provision of this Schedule which refers to a body controlled by two or more persons or bodies of any description taken together, the persons or bodies in question shall not be regarded as controlling the body by virtue of paragraph (b) of sub-paragraph (3) unless they are acting together in concert.

F126

In this Schedule any reference to a participant with more than a 20 per cent. interest in a body corporate is a reference to a person who—

a

holds or is beneficially entitled to more than 20 per cent. of the shares in that body, or

b

possesses more than 20 per cent. of the voting power in that body.

7

Sub-paragraph (6) shall have effect subject to the necessary modifications in relation to other references in this Schedule—

a

to an interest of more than a specified percentage in a body corporate, or

b

to an interest of a specified percentage or more in a body corporate.

8

Any reference in this Schedule to a person who is over a particular age is a reference to a person who has attained that age.

2

1

F13Subject to sub-paragraph (1A)Any reference in paragraph 1 above to a person—

a

holding or being entitled to shares, or any amount of the shares or equity share capital, in a body corporate, or

b

possessing voting power, or any amount of the voting power, in a body corporate,

is a reference to his doing so, or being so entitled, whether alone or jointly with one or more other persons and whether directly or through one or more nominees.

F141A

For the purposes of this Schedule, a person’s holding of shares, or possession of voting power, in a body corporate shall be disregarded if, or to the extent that—

a

he holds the shares concerned—

i

as a nominee,

ii

as a custodian (whether under a trust or by a contract), or

iii

under an arrangement pursuant to which he has issued, or is to issue, depositary receipts, as defined by section 220(1) of the Companies Act 1985, in respect of the shares concerned, and

b

he is not entitled to exercise or control the exercise of voting rights in respect of the shares concerned.

1B

For the purposes of sub-paragraph (1A)(b)—

a

a person is not entitled to exercise or control the exercise of voting rights in respect of shares if he is bound (whether by contract or otherwise) not to exercise the voting rights, or not to exercise them otherwise than in accordance with the instructions of another, and

b

voting rights which a person is entitled to exercise or of which he is entitled to control the exercise only in certain circumstances shall be taken into account only when those circumstances have arisen and for as long as they continue to obtain.

F152

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F163

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F173

For the purposes of this Schedule the following persons shall be treated as connected with a particular person—

a

a person who controls that person,

b

an associate of that person or of a person falling within paragraph (a), and

c

a body which is controlled by that person or by an associate of that person.

F183A

1

In this Schedule “coverage area”—

a

in relation to any service licensed by the Commission under Part I of this Act or a television multiplex service licensed by them under Part I of the 1996 Act, means the area of the United Kingdom from time to time determined by the Commission as that within which the service is capable of being received at a level satisfying such technical standards as they may from time to time determine,

b

in relation to any digital programme service which is broadcast by means of a television multiplex service, means the area of the United Kingdom from time to time determined by the Commission as that within which the digital programme service as so broadcast is capable of being received at such a level,

c

in relation to any service licensed by the Authority under Part III of this Act, means the area of the United Kingdom from time to time determined by the Authority as that within which the service is capable of being received at a level satisfying such technical standards as they may from time to time determine, and

d

in relation to any local radio multiplex service licensed by the Authority under Part II of the 1996 Act or any local digital sound programme service which is broadcast by means of such a local radio multiplex service, means the area of the United Kingdom from time to time determined by the Authority as that within which the local radio multiplex service is capable of being received at such a level.

2

Where the Commission or the Authority make any determination under this paragraph, they shall—

a

publish the determination in such manner as they think fit, and

b

send a copy of it to such persons holding licences granted by them as appear to them to be affected by the determination.

F193B

1

For the purposes of this Schedule—

a

a person who holds a licence to provide digital programme services shall be taken to provide a digital programme service if, under a contract between him and a person who holds a licence to provide a television multiplex service, that person is obliged to broadcast the digital programme service by means of the television multiplex service;

b

a person who holds a licence to provide national digital sound programme services shall be taken to provide a national digital sound programme service if, under a contract between him and a person who holds a licence to provide a national radio multiplex service, that person is obliged to broadcast the national digital sound programme service by means of the national radio multiplex service;

c

a person who holds a licence to provide local digital sound programme services shall be taken to provide a local digital sound programme service if, under a contract between him and a person who holds a licence to provide a local radio multiplex service, that person is obliged to broadcast the local digital sound programme service by means of the local radio multiplex service.

2

For the purposes of this Schedule a person who holds a licence to provide digital programme services, national digital sound programme services or local digital sound programme services shall also be taken to provide a digital programme service, a national digital sound programme service or a local digital sound programme service (as the case may be) if he also holds a relevant multiplex licence and is broadcasting that service under that licence.

3

In sub-paragraph (2), “relevant multiplex licence” means—

a

in relation to digital programme services, a licence to provide a television multiplex service,

b

in relation to national digital sound programme services, a licence to provide a national radio multiplex service, and

c

in relation to local digital sound programme services, a licence to provide a local radio multiplex service.

4

An order under F20any provision of this Schedule other than paragraph 7 in Part III shall not be made by the Secretary of State unless a draft of it has been laid before and approved by a resolution of each House of Parliament.