The Television Multiplex Services (Reservation of Digital Capacity) Order 2008

Competition for digital capacity to be reserved on Multiplex B

3.—(1) OFCOM must exercise their functions under this article with a view to selecting one or more relevant public service broadcasters(1) for whom they will (to the extent provided for in this Order) reserve digital capacity on Multiplex B, by means of variations to the Multiplex B licence made under article 4.

(2) Within the period of six months beginning on the day on which this Order comes into force, but subject to paragraphs (11) to (14), OFCOM must publish a notice under paragraph (3).

(3) A notice under this paragraph shall be in writing and shall—

(a)state that OFCOM propose to reserve digital capacity on Multiplex B for one or more relevant public service broadcasters;

(b)specify, in such manner as OFCOM consider appropriate—

(i)the amount of digital capacity on Multiplex B which will be reserved for such broadcasters;

(ii)the area or areas within the British Islands where that capacity will be available; and

(iii)the transmission and coding technologies which OFCOM propose should be employed for the broadcasting of services by means of that capacity;

(c)give such other details (if any) of Multiplex B as OFCOM consider appropriate;

(d)give such details (if any) as OFCOM consider appropriate of—

(i)the nature of the services which in their opinion should be broadcast by means of digital capacity reserved for relevant public service broadcasters on Multiplex B, and

(ii)any of the terms and conditions they propose should apply in relation to services provided by such broadcasters for broadcasting by means of that capacity;

(e)invite relevant public service broadcasters to apply for digital capacity to be reserved for them on Multiplex B, by making applications complying with paragraph (4); and

(f)specify—

(i)the closing date for such applications; and

(ii)the fee payable on any such application.

(4) Subject to paragraph (5), an application complies with this paragraph if it is made in writing and is accompanied by—

(a)the fee specified pursuant to paragraph (3)(f)(ii);

(b)details of the television services (which must include public service digital television programme services or qualifying services but need not include any high definition television services) and digital additional television services (if any) the applicant proposes to provide if digital capacity is reserved for it by OFCOM;

(c)details of the timetable according to which the applicant proposes to begin providing those services;

(d)a detailed explanation of the manner in which (in the view of the applicant) those services, if provided as proposed, would further the objectives mentioned in paragraph (8);

(e)the applicant’s proposals for promoting the adoption by members of the public of reception equipment which is compatible with the transmission and coding technologies specified by OFCOM pursuant to paragraph (3)(b)(iii); and

(f)such other information as OFCOM may reasonably require for the purpose of considering the application.

(5) A person who is a relevant public service broadcaster by virtue of holding a Channel 3 licence may make an application under this article only if that person makes it on behalf of at least 13 holders of regional Channel 3 licences; and accordingly, in the case of such an application—

(a)the application complies with paragraph (4) only if it contains a statement in such form as OFCOM may require to the effect that the application is made on behalf of at least 13 holders of regional Channel 3 licences; and

(b)any reference in this article to an applicant includes a reference to every holder of a Channel 3 licence on whose behalf the application is made.

(6) At any time after receiving an application under this article and before determining it, OFCOM may require the applicant to furnish additional information about its proposals.

(7) Any information to be furnished to OFCOM under this article shall, if they so require, be in such form or verified in such manner as they may specify.

(8) In determining whether to reserve digital capacity on Multiplex B and (if so) the applicant or applicants for whom they will reserve it, OFCOM shall have regard, in particular, to the extent to which the services that an applicant proposes to provide for broadcasting by means of that capacity appear to OFCOM to—

(a)promote the efficient use of the radio spectrum, paying particular regard to how the content proposed to be included in those services would be likely to encourage members of the public to adopt reception equipment which is compatible with the transmission and coding technologies specified by OFCOM pursuant to paragraph (3)(b)(iii);

(b)contribute to the fulfilment of the purposes of public service television broadcasting in the British Islands, having regard to the desirability of those purposes being fulfilled in a manner that is compatible with subsection (6) of section 264 of the Communications Act 2003 (read as if those services were relevant television services within the meaning of that section); and

(c)contribute to enhancing or maintaining the range and diversity of high quality television services available on digital terrestrial television.

(9) Where OFCOM make a determination under this article to reserve some or all of the digital capacity specified pursuant to paragraph (3)(b), they shall, as soon as reasonably practicable after making their determination—

(a)publish, in such manner as they consider appropriate, the name of each applicant for whom such capacity is to be reserved, and such other information as OFCOM consider appropriate;

(b)grant to each such applicant a public service digital programme licence in respect of the services it proposes to provide, except in the case of any proposed service that appears to OFCOM to be a qualifying service or a digital additional television service; and

(c)treat any application that includes proposals for providing digital additional television services on such capacity (otherwise than as a service that is or is comprised in a qualifying service) as an application for a digital additional services licence made by the applicant in question under and in accordance with section 25(1) of the 1996 Act.

(10) Where OFCOM decide to make no determination to reserve digital capacity, or to make a determination reserving less digital capacity than was specified pursuant to paragraph (3)(b), they shall, as soon as reasonably practicable after reaching that decision, publish their decision and the reasons for it.

(11) Nothing in this article is to be taken to authorise or require OFCOM to publish a notice under paragraph (3) with a view to securing the reservation of more digital capacity than is permitted to be reserved by article 4(2).

(12) Nothing in paragraph (2) is to be taken to authorise or require OFCOM to publish a notice under paragraph (3) within the period of six months beginning on the day on which this Order comes into force unless, within that period, they have reason to consider it likely that as from a date no later than that on which they propose that any reservation of digital capacity on Multiplex B should take effect, there will be capacity on that multiplex sufficient for the broadcasting of at least three high definition television services.

(13) In a case where they do not, within that period, have reason to consider that outcome likely—

(a)OFCOM must, before the end of that period, publish a notice stating that fact; and

(b)if, on a date after the end of that period, OFCOM decide that they do then have reason to consider that outcome likely, they must as soon as reasonably practicable after that date publish a notice stating that date;

and paragraph (2) shall have effect as if the reference there to the day on which this Order comes into force were a reference to the date mentioned in sub-paragraph (b).

(14) At any time after first publishing a notice under paragraph (3) (and otherwise exercising their functions under this article), OFCOM may again publish such a notice (and exercise those functions) on one or more further occasions, in which case paragraph (2) shall have effect as if the words “Within the period of six months beginning on the day on which this Order comes into force” were omitted.

(15) Any obligation imposed on OFCOM by this article to publish any matter is an obligation to publish that matter in such manner as OFCOM consider appropriate for the purposes of bringing it to the attention of persons appearing to them to be likely to be affected by it.