What is this new law about free TV on satellite?

Brian Butterworth published on UK Free TV 2nd October 2014 at 06:53

The new "Communications Act 2003" includes a section on must-carry obligations. The sections are reproduced here for reference:

64 Must-carry obligations

(1) General conditions may include conditions making any provision that OFCOM consider appropriate for securing that particular services are broadcast or otherwise transmitted by means of the electronic communications networks described in the conditions.

(2) A general condition containing provision authorised by this section is not (subject to subsection (4)) to require a service to be broadcast or otherwise transmitted by means of an electronic communications network unless—

(a) the service is included in the list of must-carry services; and

(b) the effect of the requirement is confined to networks by means of which public electronic communications services are provided that are used by a significant number of end-users as their principal means of receiving television programmes.

(3) That list is as follows—

• (a) any service of television programmes provided by the BBC so far as it is provided in digital form and is a service in relation to which OFCOM have functions;
• (b) the Channel 3 services so far as provided in digital form;
• (c) Channel 4 so far as provided in digital form;
• (d) Channel 5 so far as provided in digital form;
• (e) S4C Digital;
• (f) the digital public teletext service.

(4) General conditions making provision authorised by this section in relation to a listed service must, to such extent as OFCOM consider appropriate (and subject to subsection (5))—

• (a) apply the requirement to broadcast or otherwise transmit that service to every service which is an ancillary service by reference to the listed service; and
• (b) provide for the listed service to be treated for the purposes of the conditions as constituting such other services comprised in or provided with that service as may be determined by OFCOM.

(5) General conditions making provision authorised by this section must also comply with all such restrictions (if any) as may be imposed by order made by the Secretary of State as to the maximum and minimum amounts, or proportions, of available capacity that are to be required by such conditions to be used in the case of a network for the broadcasting or other transmission of particular services, or descriptions of service.

(6) In making an order under subsection (5) the Secretary of State must have regard to—

• (a) the objective of securing that services included in the list of must-carry services, and the other services to which conditions set in accordance with this section are likely to be applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable; and
• (b) the need to secure that the amount of capacity available in the case of every network for making other services available is reasonable and, accordingly, that the burden of complying with conditions set in accordance with this section is proportionate to the public benefit to be secured by that objective.

(7) It shall be the duty of the Secretary of State from time to time to review—

• (a) the list of must-carry services; and
• (b) any requirements for the time being in force under this section with respect to the terms on which services must be broadcast or otherwise transmitted.

(8) Where the Secretary of State carries out such a review, he must consult the following about the matters under review—

• (a) OFCOM; and Communications Act 2003 (c. 21)
• (b) such persons who, in his opinion, are likely to be affected by a modification of the list of must-carry services, or who represent any of those persons, as he thinks fit.

(9) If, on such a review, he considers it appropriate to do so, the Secretary of State may by order modify the list of must-carry services.

(10) In determining whether it is appropriate for the purposes of subsection (9) to add a service to the list of must-carry services or to remove it, the Secretary of State must have regard, in particular, to—

• (a) the public benefit to be secured by the addition of the service to the list, or by its retention in the list;
• (b) the extent to which the service (if it were not included in the list) would nevertheless be made available to an acceptable technical standard by means of the networks to which conditions set in accordance with this section apply;
• (c) the capacity left available, after the requirements of those conditions have been complied with, for the broadcasting or other transmission of material by means of each of those networks; and
• (d) the need to secure that the burden of complying with conditions so set is proportionate to the objective of securing that the services in the list of must-carry services, and the other services to which conditions set in accordance with this section are likely to applied by virtue of subsection (4), are available for reception by as many members of the public in the United Kingdom as practicable.

(11) The Secretary of State may also, if (whether on such a review or in any other circumstances) he considers it appropriate to do so, by order make provision imposing requirements as to what, as between—

• (a) the person providing a must-carry service, and
• (b) the person providing a network by means of which it is to be provided, are to be the terms on which the service is to be broadcast or otherwise transmitted, in pursuance of general conditions set in accordance with this section, by means of that network.

(12) An order under subsection (11) may provide for the terms to be determined by OFCOM in accordance with the provisions of the order.

(13) Before making an order under subsection (5), and before making an order under subsection (11) in a case in which there has been no review under subsection (7), the Secretary of State must consult—

• (a) OFCOM, and
• (b) such persons who, in his opinion, are likely to be affected by the order, or who represent any of those persons, as he thinks fit.

(14) Section 362 applies for construing this section as it applies for the purposes of Part 3.

It also says that these services shall be provided without additional charge beyond that of the annual "tv licence":

274 Securing reception of must-provide services in certain areas

(1) The regulatory regime for—

• (a) every licensed public service channel,
• (b) the public teletext service, and
• (c) every licensed television service added by order under section 275 to the list of must-provide services, includes the conditions that OFCOM consider appropriate for securing that arrangements satisfying the requirements of this section are entered into and maintained by all the persons who provide must-provide services.

(2) The conditions imposed on a person under this section may include theconditions that OFCOM consider appropriate for securing, in a case where—

• (a) the persons providing must-provide services fail to enter into or maintain arrangements satisfying the requirements of this section, and
• (b) OFCOM make and impose arrangements of their own instead, that the person bound by the conditions is required to act in accordance with arrangements imposed by OFCOM.

(3) The arrangements that are to be entered into, or may be imposed, are arrangements that secure—

• (a) that a facility for receiving each must-provide service is made available to every member of the intended audience for that service who is unable, without the use of that facility, to receive it an intelligible form and free of charge,;
• (b) that the facility is one under which every such member of the intended audience for a must-provide service is entitled, free of charge, to receive in an intelligible form so much of a service broadcast from a satellite as includes that must-provide service;
• (c) that the cost of making that facility available is shared, in appropriate proportions, by all the persons providing must-provide services;
• (d) that procedures are established and maintained for dealing with complaints from persons claiming to be entitled, in accordance with the Communications Act 2003 (c. 21)arrangements, to receive a service free of charge, and for resolving disputes about the existence or extent of such an entitlement;
• (e) that the availability of those procedures is adequately publicised in accordance with guidance given from time to time by OFCOM.

275 Must-provide services for the purposes of s. 274

(1) For the purposes of section 274 the list of must-provide services is as follows—

• (a) every service of television programmes provided by the BBC so far as it is provided in digital form and is a service in relation to which OFCOM have functions;
• (b) the Channel 3 services so far as provided in digital form;
• (c) Channel 4 so far as provided in digital form;
• (d) Channel 5 so far as provided in digital form;
• (e) S4C Digital;
• (f) the digital public teletext service.

(2) The Secretary of State may by order modify the list of must-provide services in subsection (1).

(3) In determining whether it is appropriate, by an order under subsection (2), to add a service to the list of must-provide services or to remove a service from that list, the Secretary of State must have regard, in particular, to—

• (a) the public benefit to be secured by the addition of the service to the list, or by its retention in the list;
• (b) the likely effect of the proposed modification as respects the costs to be borne, under arrangements entered into or imposed under section 274, by the persons who, after the coming into force of the modification, would have to be parties to those arrangements; and
• (c) the extent to which that effect is proportionate to the benefit mentioned in paragraph (a).