32000Y1118(01)

Publication pursuant to Article 3a(2) of Council Directive 89/552/EEC (OJ L 298, 17.10.1989, p. 23) on the coordination of certain provisions laid down by law, regulation or administrative action in Member States concerning the pursuit of television broadcasting activities, as amended by Directive 97/36/EC of the European Parliament and of the Council (OJ L 202, 30.7.1997, p. 60) - UNITED KINGDOM

(2000/C 328/02)

The measures taken pursuant to Article 3a(1) of the Directive and notified to the Commission in accordance with the procedure laid down in Article 3a(2) by the UNITED KINGDOM are set out in the following extracts:

[Extracts from Part IV of the Broadcasting Act 1996]

BROADCASTING ACT 1996

Chapter 55

PART IV

SPORTING AND OTHER EVENTS OF NATIONAL INTEREST

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[Extracts from the Television Broadcasting Regulations 2000]

STATUTORY INSTRUMENTS

2000 No 54

BROADCASTING

The Television Broadcasting Regulations 2000

Made: 14 January 2000

Laid before Parliament: 14 January 2000

Coming into force: 19 January 2000

Whereas the Secretary of State is a Minister designated(1) for the purposes of section 2(2) of the European Communities Act 1972(2) with regard to measures relating to television broadcasting;

Now, therefore, the Secretray of State, in exercise of the powers conferred on him by section 2(2) of the European Communities Act 1972 and all other powers enabling him in that behalf, hereby makes the following Regulations:

Citation and commencement

1. (1) These Regulations may be cited as the Television Broadcasting Regulations 2000.

(2) These Regulations shall come into force on 19 January 2000.

[...]

Amendments of Broadcasting Act 1996

3. Part IV of the Broadcasting Act 1996(3) (sporting and other events of national interest) is amended in accordance with the Schedule to these Regulations.

[...]

14 January 2000

Chris Smith

Secretary of State for Culture, Media and Sport

SCHEDULE

Regulation 3

AMENDMENTS OF BROADCASTING ACT 1996: SPORTING AND OTHER EVENTS OF NATIONAL INTEREST

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[Extracts from the ITC Code on Sports and other Listed Events, revised January 2000]

Code on sports and other listed events

Foreword

1. The Broadcasting Act 1996, (the "Act") as amended by the Television Broadcasting Regulations 2000 (the "Regulations"), requires the ITC to draw up, and from time to time review, a code giving guidance on certain matters relating to the televising of sports and other events of national interest which have been listed by the Secretary of State for Culture, Media and Sport. This code has been produced by the ITC, after consultation with broadcasters, sports bodies, the holders of sports rights and other interested parties, for the purpose of fulfilling this statutory duty, as defined under Section 104 of the Act. [...]

2. The Act restricts the acquisition by television programme providers of exclusive rights to the whole or any part of live television coverage of listed events and the broadcasting on an exclusive basis of such coverage without the previous consent of the ITC (see Part IV of the Act). Under the Act the ITC has powers to impose a financial penalty on its licensees if the restrictions on broadcasting live coverage of listed events have not been observed, if the ITC has been given false information or if material information has been withheld. In the case of the BBC and S4C the ITC must report the matter to the Secretary of State. The ITC will have regard to the provisions of the Code in exercising these powers.

3. "Listed events" are drawn up by the Secretary of State in accordance with the Act, and the current list is at Appendix 1. The Secretary of State may add events to and delete events from the list at any time, but only after consultation with the BBC, the Welsh Authority, the ITC and the holder of the rights for the event in question. In June 1998 the Secretary of State extended the list to include Group B events on the understanding that they would be treated differently from Group A events. Group A events are those events which may not be covered live on an exclusive basis unless certain criteria are met. The cirteria and matters to be taken into account by the ITC are set out at paragraphs 12 to 16. Group B events are those events that may not be broadcast live on an exclusive basis unless adequate provision has been made for secondary coverage. The minimum standard of secondary coverage the ITC will regard as adequate provision is set out at paragraphs 17 and 18.

[...]

General provision and background

6. For the purpose of the live broadcasting of listed events the Act defines two categories of television programme services: those television programme services and EEA satellite services which for the time being satisfy the qualifying conditions ("the first category") and all other television programme services and EEA satellite services ("the second category"). The qualifying conditions are defined as (a) that the service is provided without any consideration being required for reception for the service and (b) that the service is received by at least 95 % of the population of the United Kingdom. Television programme services and EEA satellite services which fall within the first category will appear in a list published from time to time by the ITC (see Appendix 2). These requirements are set out in the Act as amended by the Television Broadcasting Regulations 2000. Any contract for televising live coverage of a listed event which is entered into by a broadcaster must state that the rights are available for showing the event on a service falling within only one of the two categories, i.e., separate contracts must exist for each category. A broadcaster providing a service in either category ("the first service") is prohibited from showing exclusively live coverage of the whole or any part of a Group A event without the previous consent of the Commission unless a broadcaster providing a service in the other category ("the second service") has acquired the right to show live coverage of the event or the same part of the event. The area served by the second service must consist of or include the whole, or substantially the whole, of the area served by the first service. The first and second services may be provided by licensees in the same ownership, but between them they must include a broadcaster in each of the two categories described above.

7. The restrictions apply only to rights acquired either after the commencement of Section 101 of the 1996 Act, i.e. 1 October 1996 or after the Secretary of State began to consult rights holders about changes to the list, i.e. 25 November 1997, as shown in Appendix 1.

8. An event may be listed because it is of "national" interest within England, Scotland, Wales or Northern Ireland separately. This is the basis on which the Scottish FA Cup Final, for example, has been listed. The Act allows for those events to be shown only in the relevant part of the United Kingdom in which there is likely to be most viewer interest. The reference to Channel 3 in Appendix 2, therefore, means individual or groups of regional Channel 3 services, or Channel 3 as a whole.

9. The Act is concerned with providing an opportunity for live coverage to be made available. It is important to emphasise that the Act does not require or guarantee live coverage of listed events, including coverage on Channel 3, Channel 4 and the BBC. Nor does the Act prohibit exclusive live coverage of listed events on these or other services subjects to the ITC being satisfied that certain criteria have been met (see paragraphs 12-18).

10. The specific guidance which the ITC is required to give is set out below. The ITC will keep this guidance under review and may amend it in the light of experience.

Definition of "live"

11. Section 104 of the Act requires the ITC to specify the circumstances in which the coverage of listed events generally, or of a particular listed event, is, or is not, to be treated as live. In considering this matter the ITC has taken the view that the interests of viewers lie in allowing them to participate in the event as it happens, as far as possible. This suggests that live television coverage of most sports events, inlcuding those taking place in different time zones, should be defined as coverage which is simultaneous with the event (i.e. as the event is happening). However, given the different nature and length of events, no single definition is possible, The following interpretation should allow for necessary flexibility:

- the restrictions on live coverage will apply while the event concerned is in progress,

- if the event involves separate games or matches, the restrictions will apply while each game or match is in progress,

- in the case of a single event which is scheduled to last over serveral days the restrictions will apply to each day's play, while it is in progress,

- in the case of an event which consists of defined separate parts which overlap in time (e.g. the Olympic Games or the FIFA World Cup Finals) and cannot therefore be televised simultaneously in full, the restrictions will apply to each match or competition as if it was a single event.

Matters to be taken into account in giving or revoking consent for exclusive coverage

12. Under Section 104(1)(b) of the Act the ITC is required to provide guidance as to the matters it will take into account in determining whether to grant its consent to a broadcaster providing a service in one category (the first service) to provide exclusive live coverage of an event (of part of an event) where no broadcaster providing a service in the other category (the second service) has acquired the same rights, or where the area for which the second service is to be provided does not consist of or inlcude the whole, or substantially the whole, of the area for which the first service is provided.

13. In deciding whether to give its consent it may be sufficient for the ITC to establish that the availability of the rights was generally known and no broadcaster providing a service in the other category had expressed an interest in their acquisition to the rights holder, or had not bid for the rights. However, the ITC will wish to be satisfied that broadcasters have had a genuine opportunity to acquire the rights on fair and reasonable terms and, in reaching a view, will take account of some or all of the following cirteria:

- any invitation to express interest, whether in the form of public advertisement or closed tender, in the acquisition of the rights must have been communicated openly and simultaneously to broadcasters providing services in both categories,

- at the beginning of any negotiation the documentation and/or marketing literature must set out in all material respects the process for negotiating and acquiring the rights and all material terms and conditions, including what rights were available,

- if the rights to the listed event were included in a package of rights, the package must not have been more attractive to broadcasters providing services in one of the two categories. Preferably, the rights should be capable of being purchased independently of other rights, e.g. to highlights, delayed transmissions, other events,

- the conditions or costs attached to the acquisition of the rights (for example, production costs) must have been clearly stated and must not be preferential to one category of service,

- the price sought for the rights must have been fair, reasonable and non-discriminatory as between the two categories of programme service. What is a fair price will depend upon the rights being offered and the value of those rights to broadcasters. A wide range of prices is likely to be regarded as fair but when required to make its own judgment on the matter the ITC will have regard to inter alia:

- previous fees for the event or similar events,

- time of day for live coverage of the event,

- the revenue or audience potential associated with the live transmission of the event (e.g. the opportunity to sell advertising and sponsorship; the prospects for subscription income),

- the period for which rights are offered, and

- competition in the market place.

14. A genuine opportunity to acquire the rights also requires that broadcasters are given a reasonable time in which to do so. What constitutes a reasonable time will depend upon the circumstances of each case, including the complexity of negotiations and the production and transmission of the programme surrounding the event, and the proximity of the event to the date on which the rights are offered. The time allowed should give all parties a realistic opportunity to negotiate and reach agreement, but should not be unduly protracted, thereby preventing or restricting broadcasters from complying with this Code.

15. The ITC's consent is also required where the area for which the service is to be provided does not consist of or include the whole, or substantially the whole, of the area for which the other service is to be provided. In considering whether to give its consent the ITC will take account of the interests of the viewers in the different areas and the transmission coverage areas of the different broadcasters.

16. Consent will normally be given for the full period for which rights are acquired in recognition of the fact that the price paid will, inter alia, reflect the duration of the rights. However, the ITC will revoke its consent if the broadcaster to whom the consent has been given requests it, or if the consent has been given on the basis of false or misleading information. Additionally, the ITC will consider revoking its consent if it appears that rights have been acquired for an extended period in order to circumvent the spirit of the Act. In determining what is an extended period the ITC will have regard to precedents for this and similar events, including the periods for which rights are granted to non-United Kingdom broadcasters for overseas transmissions.

17. For those events listed in Group B in Appendix 1, the ITC will give its consent to exclusive live coverage of an event by a broadcaster providing a service in one category (the first service) if adequate provision has been made for secondary coverage by a broadcaster providing a service in the other category (the second service). The minimum which the ITC will consider to be adequate is where the second service has acquired rights for the provision of edited highlights or delayed coverage amounting to at least 10 % of the scheduled duration of the event (or the play in the event taking place on any on day), subject to a minimum of 30 minutes for an event (or the play in the event on any day) lasting an hour or more, whichever is the greater. For these purposes, where an event has a number of different components taking place concurrently the scheduled duration of the event is defined as the time elapsed between the scheduled beginning of the first component of the event on that day. The second service must have editorial control over the content and scheduling of the edited highlights or delayed coverage except that a restriction may be imposed that the second service shall not begin broadcasting the edited highlights or delayed coverage until a period has elapsed following the scheduled conclusion of the event (or the play in the event on any day). The maximum period which may be set is follows:

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18. In addition to the above, the right to provide live radio commentary on the event must have been acquired by a radio station with national coverage or an organisation providing a sports service to radio stations which form a national (or near national) network.

19. The situation may arise where a second service is unable or unwilling to provide adequate secondary coverage or any secondary coverage at all. The ITC will then consider whether to give its consent to exclusive live coverage without secondary coverage and the same or similar criteria as set out in paragraphs 12 to 16 will apply.

Circumstances in which sanctions might not be imposed

20. Section 104 also requires the ITC to give guidance on the matters which it will take into account in deciding whether it is unreasonable to expect a television programme provider to comply with the restrictions on broadcasting live coverage of listed events and therefore whether sanctions should be imposed if the restrictions are not observed. Given the long lead times which are generally available for offering, selling and acquiring the rights, the ITC believes that there are very few circumstances in which it would be reasonable for a broadcaster to proceed with exclusive coverage without the ITC's consent. A broadcaster who proceeds to broadcast a listed event live without the ITC's consent and where this is not in compliance with Section 101(1) will need to convince the ITC that the period between the rights becoming available and the event taking place was too short for this consent to be obtained or that he believed he had complied but that belief was based on false information. In the latter situation, however, the ITC will need to be convinced that the broadcaster had taken all reasonable steps to satisfy himself that another broadcaster providing a service in the other category had acquired the rights.

Procedures for seeking consent

21. A request for the ITC's consent for exclusive live coverage of a listed event must be made in writing to the ITC's Secretary and be accompanied by full reasons and justification for the request and all relevant supporting information. Requests should be made well in advance (wherever possible, no less than three months) of the event taking place to give the ITC sufficient time to consider whether consent should be given. As a first step in considering the request the ITC will normally issue a public notice inviting any broadcasters providing a service in the other category from the one to which the applicant belongs, or rights holders and other interested parties to comment on the request. Depending on the response and on the ITC's own investigations into the matter, the applicant may be asked to supply additional information in writing and/or to attend a meeting with ITC staff.

22. Broadcasters should note that under the Act ITC consent is needed for exclusive live coverage of Group B events even if the minimum requirements set out in paragraphs 17 and 18 are met. However, in these circumstances consent will be given automatically.

23. The ITC will respond as quickly as possible to any request. The ITC will publish its decisions and its reasons, but, in doing so, will have regard to the legitimate interest of the parties in the protection of confidentiality.

[...]

January 2000

Appendix 1

UNITED KINGDOM SPORTING EVENTS

GROUP A

The Olympic Games

The FIFA World Cup Finals Tournament

The FA Cup Final

The Scottish FA Cup Final (in Scotland)

The Grand National

The Derby

The Wimbledon Tennis Finals

The European Football Championship Finals Tournament

The Rugby League Challenge Cup Final (*)

The Rugby World Cup Final (*)

GROUP B

Cricket Test Matches played in England

Non-Finals play in the Wimbledon Tournament

All Other Matches in the Rugby World Cup Finals Tournament (*)

Five Nations Rugby Tournament Matches Involving Home Countries (*)

The Commonwealth Games (*)

The World Athletics Championship (*)

The Cricket Word Cup - the Final, Semi-finals and Matches Involving Home Nations' Teams (*)

The Ryder Cup (*)

The Open Golf Championship (*)

NOTE:

Restrictions apply to rights acquired after 1 October 1996 except for those events marked by an asterisk where the relevant date is 25 November 1997.

Appendix 2

LIST OF SERVICES MEETING THE "QUALIFYING CONDITIONS" AS SET OUT IN THE TELEVISION REGULATIONS 2000

CHANNEL 3 (ITV)

CHANNEL 4

BBC 1

BBC 2

[Written answer from the Secretary of State to a Parliamentary Question of Hugh Bayley MP, 25 November 1997]

CULTURE, MEDIA AND SPORT

Sports broadcasting

Mr Bayley: To ask the Secretary of State for Culture, Media and Sport what progress he has made in his review of the sports events listed under Part IV of the Broadcasting Act 1996; and if he will make a statement.

Mr Chris Smith: I have consulted interested parties about the principles which should guide the listing process, and I am today publishing criteria which I hope will make the process more transparent. I have also appointed an advisory group of individuals with knowledge of the sporting, broadcasting and public policy issues involved. The members of the group are:

Lord Gordon of Strathblane (chairman)

Mr Alastair Burt

Mr Jack Charlton

Mr Steve Cram

Kate Hoey, MP

Mr Michael Parkinson

Mr Clive Sherling

Prof. David Wallace

I have invited this group to consider the issues against these published criteria:

(a) Whether events or parts of events should be removed from the list; and

(b) whether other major sporting events should be added to the list.

As an initial step in the process of reviewing the list, the rights holders for the events currently listed and a number of the other major sports events are being formally consulted, as the 1996 Act requires. The submissions received from them will be made available to the advisory group.

The rights holders for the following events are to be consulted:

Events currently listed:

The Olympic Games

The FIFA World Cup Finals

The FA Cup Final

The Scottish FA Cup Final (listed only in Scotland)

Cricket Test Matches involving England

Wimbledon Tennis Tournament (finals weekend only currently listed)

The Grand National

The Derby

Other major sports events:

The Cricket World Cup

The Rugby World Cup

The European Football Championships

The Commonwealth Games

The World Athletics Championship

The British Grand Prix

The Five Nations Rugby Tournament

The Open (golf)

The Ryder Cup

The group may request that other events be included in the review and the rights holders for these events will be consulted.

The group will begin its work immediately and I expect it to make its recommendations to me before Easter. I shall then decide what changes, if any, to make to the current list.

[Extracts from a communication by the Ministry for Culture, Media and Sports, 25 November 1997]

[...]

3. The criteria to be used by the review group in their considerations are as follows:

Notes for guidance on the listing of major sports events

In considering whether to list an event, the Secretary of State is required to consult the broadcasting regulators and the holders of the rights in question. The following note sets out the factors which the Secretary of State will take into account in deciding whether to list an event.

In order to be eligible to be listed, an event must meet the following main criterion:

- the event has a special national resonance, not simply a significance to those who ordinarily follow the sport concerned; it is an event which serves to unite the nation; a shared point in the national calender.

Such an event is likely to fall into one or both of the following categories:

- it is a pre-eminent national or international event in the sport,

- it involves the national team or national representatives in the sport concerned.

An event which satisfies the essential criterion is likely to be considered for listing, but listing of such an event is not automatic. It is more likely to be listed if it exhibits particular characteristics making listing an apt response, such as:

- it is likely to command a large television audience,

- it has a history of being broadcast live on free-to-air services.

In considering whether to list such an event, the Secretary of State will have regard to other factors affecting the likely costs and benefits to the sport concerned, to the broadcasting industry and to viewers, such as:

- whether it is practical to offer full live coverage on a general channel - extended events such as season-long championships involving many matches will not normally be listed in their entirety,

- the impact of listing in reducing the income or potential income of the sport, and the consequences of that reduction for its investment in increasing participation and/or improving levels of performance and/or in creating safe facilities,

- the likely impact of listing on the broadcasting market, including future investment in sports broadcasting, the level of competition and the position of public service broadcasters,

- whether there are arrangements to ensure that access to the event is available to all viewers by means of highlights, delayed coverage and/or radio commentary.

In considering events for listing, the Secretary of State will have regard to these other factors cumulatively. No single factor automatically commands listing as a response, nor does failure to meet an individual criterion disqualify an event from consideration.

4. The Secretary of State made his announcement in a Written Answer to a Parliamentary Question from Hugh Bayley MP (City of York).

[Written answer from the Secretary of State to a Parliamentary Question of Gareth R. Thomas MP, 25 June 1998]

CULTURE, MEDIA AND SPORT

Listed sporting events

Mr Gareth R. Thomas: To ask the Secretary of State for Culture, Media and Sport if he will make a statement about the outcome of his review of major events listed under Part IV of the Broadcasting Act 1996.

Mr Chris Smith: My review of the list is now complete. I have conducted it in the light of the criteria which I published last year. I consulted widely on the criteria and the content of the list and I have carefully considered the many representations made to me. I have accepted the general principles of the report produced by the Advisory Group chaired by Lord Gordon of Strathblane.

With immediate effect, I am revising the list of events under Part IV of the Broadcasting Act 1996.

I am retaining the following events on the list, requiring live coverage to be made available to free-to-air terrestrial television broadcasters (in Catagory A as specified in the 1996 Act):

The Olympic Games

The FIFA World Cup Finals Tournament

The FA Cup Final

The Scottish FA Cup Final (in Scotland)

The Grand National

The Derby

The Wimbledon Tennis Finals.

I am adding the following events to the list on the same basis:

The European Football Championship Finals Tournament

The Rugby League Challenge Cup Final

The Rugby World Cup Final.

After careful consideration of the Advisory Group's recommendations, I have concluded that a number of the matches in the World Cup and European Championships football qualifying tournaments meet the criteria for listing. I believe that it is important that crucial ties in these competitions should be available to all viewers and therefore intend to seek Europe-wide arrangements for protecting free-to-air live broadcasts of crucial matches in these competitions.

I am also listing some further events on a different understanding. For these events, I have recommended to the Independent Television Commission that live coverage might be allowed to be shown exclusively by a Category B broadcaster (as specified in the 1996 Act), provided there are satisfactory arrangements for secondary coverage by a Category A broadcaster. I have asked the ITC to consider setting a minimum acceptable standard for such secondary coverage, to include some combination of delayed full coverage, highlights and live radio commentary.

The events I am listing on this understanding are:

Cricket Test Matches played in England

Non-Finals play in the Wimbledon Tournament

All Other Matches in the Rugby World Cup Finals Tournament

Five Nations Rugby Tournament Matches Involving Home Countries

The Commonwealth Games

The World Athletics Championship

The Cricket World Cup - the Final, Semi-finals and Matches Involving Home Nations Teams

The Ryder Cup

The Open Golf Championship.

(1) S.I. 1997/1174.

(2) 1972 c. 68; by virtue of the amendment of section 1(2) of the European Communities Act by section 1 of the European Economic Area Act 1993 (c. 51) regulations may be made under section 2(2) of the European Communities Act to implement obligations of the United Kingdom created by or arising under the Agreeement on the European Economic Area signed at Oporto on 2 May 1992 (Cm 2073) and the Protocol adjusting that Agreement signed at Brussels on 17 March 1993 (Cm 2183).

(3) 1996 c. 55.