Part 4: On-demand programme services Section 368HB Power to specify Tier 1 services etc
Section 368HB gives the Secretary of State the power to specify which on-demand programme services, including non-UK on-demand programme services, fall under enhanced Tier 1 regulation. The regulations may specify a service by name, or set out a description of parameters to define which services fall within Tier 1 (for example, that all services with audience figures over a certain level will come under Tier 1).
	Subsection (3) sets out that before doing so, the Secretary of State must publish a list of the services proposed for inclusion as Tier 1 services, and make this publicly accessible. Subsection (4) requires that this list of services proposed for inclusion as Tier 1 must be published at least five sitting days before regulations are made. These provisions will ensure that public and Parliamentary scrutiny can take place in advance of the proposed regulations being laid before Parliament.
	The Secretary of State must also request a report from OFCOM on the operation of the video-on-demand market in the UK before making the first set of regulations. This will include details such as audience figures, turnover, and size of catalogue for both on-demand programme services and non-UK on-demand programme services, along with any matters the Secretary of State specifically asks to be included. The Secretary of State must take this report into consideration when determining which services should come under the enhanced Tier 1 regulations.
	Subsection (6) provides that if the Secretary of State chooses to update the regulations determining which services fall within Tier 1, they may request another report from OFCOM on the on-demand programme service market in the UK. If such a report is produced, the Secretary of State must consider its content in deciding whether to update the regulations on which services fall within Tier 1 regulations.
	In preparing these reports, subsection (7) sets out that OFCOM can request information from on-demand programme services and non-UK on-demand programme services relating to their service. Subsection (10) details that OFCOM can then share the information provided in response to this request with the Secretary of State, but that this information cannot be shared more widely.
	Under subsection (11), these requests by OFCOM can specify a time period for on-demand services to provide this information as well as how the information is to be provided.
	Subsection (12) specifies that where information is requested by OFCOM for the purposes of preparing this report on the operation of the on-demand market in the UK, the on-demand programme service must comply.