Commentary on provisions of Act Section 1: Small-scale radio multiplex services
This section inserts a new section 258A into the Communications Act 2003 to enable provision for small-scale radio multiplex services. Radio multiplex services are themselves defined in s.258 of the 2003 Act as a service (i) which is broadcast otherwise than by satellite so as to be available to members of the public, and (ii) which provides, or is capable of providing, two or more digital sound services for simultaneous broadcast on the same frequency.
	Sub-section (2) enables the Secretary of State by Order to define a small scale radio multiplex service as being distinct from existing national and local radio multiplex services.
	The delineation of small scale radio multiplex services from local (county sized) multiplexes can be achieved by a two-step test to be set out in the Order. In an area that is currently served by a county-level local radio multiplex the small scale radio multiplex service can cover up to a maximum percentage of that area, likely to be set at around 40%.
	In the event that there is no current local radio multiplex in operation in an area, Ofcom could also offer and issue a small scale radio multiplex licence to cover an area with reasonable reception up to a maximum level in square kilometres. This would potentially enable multiplex broadcasting within certain areas, such as Shropshire and Cumbria, which do not currently have a county-level local radio multiplex licensed service because of a lack of commercial viability.
	Overall, the intention is to create a three tier system of radio multiplexes: national multiplexes for UK-wide transmission, local radio multiplexes for county-level transmission, and small scale radio multiplexes for sub-county level transmission or wider transmission where there was no existing local multiplex licensee.
	Sub-section (3) provides the Secretary of State with the power to modify the regulatory framework for the licensing of radio multiplex services in Part 2 of the 1996 Act and Part 3 of the 2003 Act to create a new, lighter touch regulatory framework appropriate for the licensing of these types of services.
	Sub-section (4) sets out some specific purposes for which the power may be used. These include:
	allowing for the licence periods for small scale radio multiplex services to be set according to the needs of small stations who will seek carriage on them rather than (as at present for local radio multiplexes) for a fixed period of 12 years, which is inappropriate given the much smaller capital outlay needed to set up and operate a small scale radio multiplex service.
	allowing for the exclusion of the BBC and other organisations with any existing licence holders in either the national or local radio multiplex services from holding a small scale radio multiplex licence.
	enabling requirements to be placed on small scale radio multiplex service licensees to operate on a non-commercial basis to ensure access for small commercial and community radio stations.
	allowing for a duty on Ofcom to have regard to the effect of granting a small scale radio multiplex service licence on existing or potential local multiplex licence holders. This will help to address concerns that some existing local (county-sized) radio multiplexes may be rendered financially unviable by adjacent small scale radio multiplex licences which can better target the audiences desired by smaller stations.
	allowing for Ofcom to be able to include in small scale multiplex service licences conditions requiring that community radio stations (as a class) have rights of carriage on the multiplex.
	allowing for Ofcom to reserve a set percentage of capacity on the multiplex for such purposes.
	allowing radio stations holding a local Digital Sound Programme (DSP) licence or a modified community radio local DSP licence (if introduced) to broadcast on new small scale radio multiplexes - i.e. to amend the definition in s.60(1)(b) of the 1996 Act to clarify that a local or community radio DSP licence includes broadcasting by means of a small scale multiplex. This will mean that commercial stations currently holding a local DSP licence will not have to apply for a new type of service licence, and community stations currently broadcasting only on analogue will be able to obtain an appropriate digital licence to enable them to be carried on local or small scale multiplexes whilst, if such an order is made, retaining their existing licence requirements as community radio stations.
	Sub-section (5) enables an Order made under this section to make different provision for different cases to deal with the interaction between small scale radio multiplexes and local radio multiplexes. Ofcom are under a duty to consider the effect of granting a small scale radio multiplex service licence on existing local multiplex licence holders already covering the area that will be covered by a prospective small scale multiplex. This will allow Ofcom flexibility in the licensing of small scale multiplexes, for example by varying size of the area covered to ensure that the small scale multiplex is compatible with the needs of stations seeking digital transmission in a particular area of the country.
	Sub-section (6) is a power to make incidental, supplemental or consequential modifications to other legislative provisions. This seeks to enable the effective operation of the new statutory framework for the licensing of small scale radio multiplex services.
	Sub-section (8) requires any Order made under this section to be subject to the affirmative resolution procedure of both Houses of Parliament.