Current information from Ofc@m concerning the jurisdiction and reception of broadcasts.
Jurisdiction and freedom of reception
54. European Directive 89/552/EEC (the “Television Without Frontiers Directive”), as amended by European Directive 97/36/EC and European Directive 2007/65/EC (the “Audio Visual Media Services Directive”), which is referred to below as the “Directive”4
55. Ofcom can only license a service if the provider of that service (“the broadcaster”) falls under UK jurisdiction in accordance with the Directive. In order to assess whether a broadcaster falls under UK jurisdiction, applicants will need to apply the criteria in Article 2 of the Directive. Applicants should also have regard to the European Convention on Transfrontier Broadcasting and it’s amending Protocol (ETS132 and ETS171). , provides for freedom of retransmission and reception for television services within the European Economic Area. A service which is licensed (or otherwise appropriately authorised) in one Member State does not need separate licensing in any other Member State. Dual licensing is not permitted.
56. Applicants should be aware that a TLCS licence will only enable a broadcaster to broadcast its services as long as that broadcaster continues to fall within the UK’s jurisdiction. Should a broadcaster cease to remain within the UK’s jurisdiction (for example, it moves its head office to another Member State and all its editorial decisions are then taken in that State) it will need to obtain a new authorisation from the Member State in whose jurisdiction it is operating. The Ofcom licence for that service should also be surrendered.
4 The Television Without Frontiers Directive and its subsequent amendments can be found on the website of the European Commission:
http://ec.europa.eu/avpolicy/index_en.htm.
57. In accordance with Article 2 of the Directive, the broadcaster may fall within UK jurisdiction in the following circumstances:
(i) the broadcaster falls within UK jurisdiction under one of the primary establishment criteria set out in Article 2(3) of the Directive (e.g. the broadcaster has its head office in the UK and the editorial decisions about the audiovisual media service are taken in the UK); or (ii) the broadcaster falls within UK jurisdiction under one of the subsidiary technical criteria set out in Article 2(4) of the Directive (e.g. the broadcaster uses a satellite up-link situated in the UK). Please note that these criteria are applicable only if the broadcaster does not fall within the jurisdiction of any Member States under any of the primary establishment criteria set out in Article 2(3) of the Directive; or (iiii) the broadcaster is established in the UK in accordance with Articles 43 to 48 of the Treaty establishing the European Community. Please note that this is a subsidiary establishment criterion in the sense that it is applicable only if the question as to which Member State has jurisdiction cannot be determined in accordance with the criteria set out in Article 2(3) and Article 2(4) of the Directive (as referred to in (i) and (ii) above). These criteria are considered below. Primary establishment criteria under Article 2 (3) of the Directive.
58. The Directive states that a provider of a service shall be deemed to be established in a Member State in the following cases:
a. the broadcaster has its head office in that Member State and the editorial decisions about programme schedules are taken in that Member State;
b. if a broadcaster has its head office in one Member State but editorial decisions on programme schedules are taken in another Member State, it shall be deemed to be established in the Member State where a significant part of the workforce involved in the pursuit of the television broadcasting activity operates;
c. if a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in each of those Member States, the broadcaster shall be deemed to be established in the Member State where it has its head office;
d. if a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in neither of those Member States, the broadcaster shall be deemed to be established in the Member State where it first began broadcasting in accordance with the system of law of that Member State, provided that it maintains a stable and effective link with the economy of that Member State;
e. if a broadcaster has its head office in a Member State but decisions on programme schedules are taken in a third country, or vice-versa, it shall be deemed to be established in the Member State concerned, provided that a significant part of the workforce involved in the pursuit of the television broadcasting activity operates in that Member State.
Subsidiary technical criteria set out in Article 2 (4) of the Directive
59. Broadcasters to whom the above provisions are not applicable shall be deemed to be under the jurisdiction of a Member State in the following cases:
a. they use a satellite up-link situated in that Member State. If the service is uplinked from more than one Member State, the broadcaster shall be deemed to be under the jurisdiction of the Member State where the first established uplink among those which are still being used to transmit the service is located. However, if the oldest up-link concerns a satellite whose footprint is not focussed on Europe while the more recent one concerns a satellite whose footprint is focussed on Europe, the more recent one should be taken into consideration for determining the jurisdiction;
b. although they do not use a satellite up-link situated in that Member State, they do use satellite capacity appertaining to that Member State. This subsidiary criterion will apply if jurisdiction of any Member State cannot be established under the “satellite up-link” criterion referred to in (a) above;
60. If the question as to which Member State has jurisdiction cannot be determined in accordance with the criteria above, the competent Member State shall be that in which the broadcaster is established within the meaning of Articles 52 and following of the Treaty establishing the European Community.
61. Broadcasts intended exclusively for reception in third countries, and which are not received directly or indirectly by the public in one or more Member States are not normally licensable by Ofcom.
Not to complex to set up your oversea's operation but if broadcasters are making money under the restrictions imposed by Ofc@m and are happy to jump when Ofc@m come calling why bother.
What level of fines will it take for say Elite or RLC to investigate this option when Ofc@m finally decide on all their outstanding investigations.
Gotta say all Babestation channels have been very tame tonight.
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