B1417 – Broadcasting and Advertising Conduct Authority Bill 2018 (Second Reading)

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B1417 – Broadcasting and Advertising Conduct Authority Bill 2018 (Second Reading), TSR Government
A
BILL
TO

Consolidate and internalise the regulation of the broadcasters and advertisers, as to engender a more cohesive and structured regulatory framework in the everaugmenting and assimilating broadcasting and advertising sectors

BE IT ENACTED by the Queen's Most Excellent Majesty, by and with the advice and consent of the Commons in this present Parliament assembled, in accordance with the provisions of the Parliament Acts 1911 and 1949, and by the authority of the same, as follows:—

1(X)Definitions
Within the entire scope of this Bill, the following are to be defined as follows:-
(X) (1) ‘broadcaster’ shall refer to a company, organisation or other legal entity that transmits, or intends to transmit, a programme or otherwise information, whether live or on demand, by radio, television or the internet to persons having equipment appropriate for receiving said information, whether the delivery uses the radiofrequency spectrum, cable, optical fibre, satellite, any other means or a combination of those means;
(X) (2) ‘advertiser’ shall refer to a company, organisation or other legal entity who handles and effectuates paid forms of communications, in any form, in connection with a trade, business, craft or profession, that are distributed at the initiative of economic operators as part of an intentional and systematic effort to affect individual attitudes and choices in relation to the consumption of goods and services and otherwise promote the supply of said goods or services, including immovable property, rights and other obligations;
(X) (3) ‘public’ shall refer to persons who have no duties or obligations towards broadcasters or advertisers or are not in the exercise of said duties or obligations at the time of consideration.
(X) (4) ‘consumers’ shall refer to persons:-
(X) (X) (a) who use, have used, or may be intending to use, any of the services provided by:-
(X) (X) (X) (i) broadcasters; or
(X) (X) (X) (ii) advertisers; or
(X) (X) (b) who have, or are otherwise set to obtain, rights or interests which are, or can be, derived from, or are otherwise attributable to, the use of any such services by other persons; or
(X) (X) (c) who have, or are otherwise set to obtain, rights or interests which are, or may be, adversely affected by the use of such services.
(X) (5) ‘relevant markets and sectors’ shall refer to:-
(X) (X) (i) the broadcasting sector; including the on-demand digital streaming sector;
(X) (X) (ii) the advertising market and sector,
(X) (X) (iii) any amalgamation of both sectors, and
(X) (X) (iv) any other markets or sectors as determined by the Competition and Markets Authority.
(X) (6) ‘Secretary of State’ shall, for the sole purpose of this Bill, refer to, unless mentioned otherwise, to Her Majesty’s Principal Secretary of State for Digital, Culture, Media and Sport.
(X) (7) ‘independent persons’ shall refer to persons who, to the Secretary of State, otherwise appear to not be influenced by obligations to, or subject to the authority and command or actions of the Authority.
(X) (8) ‘regulated activity’ shall refer to the act of broadcasting or advertising, as stipulated in the provisions of this Act, within the United Kingdom of Great Britain and Northern Ireland.
(X) (9) ‘significant interest’ shall stipulate an interest held, or potentially held, in excess of 10%.
(X) (10) ‘ultimate controlling party’ shall refer to the party who holds, controls or has the potential to hold 51% of shares, and thus is deemed to have ‘ultimate control’.
(X) (11) ‘legal entity’ shall refer to:-
(X) (X) (a) an individual;
(X) (X) (b) a body corporate;
(X) (X) (c) a partnership;
(X) (X) (d) an unincorporated association; or
(X) (X) (e) any other entity registered with Companies House, in accordance with the Companies Act 2006.


PART I
THE REGULATOR


2(X)The Broadcasting and Advertising Conduct Authority
(1) The Broadcasting and Advertising Conduct Authority (“the Authority”) shall form as a body corporate.
(2) The Authority shall reside under the joint jurisdiction of the Department for Digital, Culture, Media and Sport, which shall remain the principal department, and the Department for Business, Energy and Industrial Strategy, or equivalent.
(3) The Authority is to have the functions, responsibilities and duties conferred on it by or under this Act.
(4) The Authority must comply with the requirements as to its constitution set out in Schedule 1.
(5) Schedule 1 also makes provision concerning the status of the Authority and the exercise of certain of its functions.


The Authority’s general duties


3(X)The Authority’s general duties
(1) In discharging its general functions, as stipulated in this bill, the Authority is hereby required to, to the extent permissible in operational and legal terms, act in a way:-
(X) (a) which is innately compatible with its strategic objective, as defined within the scope of this Act;
(X) (b) which, otherwise, advances one or more of its operational objectives;
(X) (c) which the Authority reasonably considers most appropriate for the purpose of meeting those objectives; and
(X) (d) which is, above all, conducive to public interest.
(2) The strategic objective of the Authority is: ensuring that the relevant markets and sectors function well.
(3) The operational objectives of the Authority are to include, as a bare minimum:-
(X) (a) the competition objective;
(X) (b) the service integrity objective;
(X) (c) the consumer protection objective; and
(X) (d) the system integrity objective.
(4) In discharging its general functions the Authority is hereby required to have pragmatic regard to:-
(X) (a) the requirement to minimise superfluous usage of resources, where the use case does not contribute to the general duties of the Authority or where the use case is not complementary to its operational or strategic objectives;
(X) (b) the principle that a burden or restriction which is imposed on a person, or on the carrying on of an activity, should be proportionate to the benefits, considered in general terms, which are expected to result from the imposition of that burden or restriction;
(X) (c) the desirability of facilitating innovation, expansion and amelioration of broadcasting and advertising services throughout the entirety of the United Kingdom of Great Britain and Northern Ireland;
(X) (d) the international and supranational laws, treaties and agreements surrounding broadcasting and advertising in the United Kingdom of Great Britain and Northern Ireland;
(X) (e) the need to minimise the adverse effects on the general operations of broadcasters, the general operations of advertisers and competition within both markets that may arise from anything done in the discharge of those functions; and
(X) (f) so far as is compatible with acting in a way which continues to advance the service integrity objective, the consumer protection objective and the system integrity objective, the desirability of facilitating and promoting effective competition between those who are subject to any form of regulation, supervision or otherwise regulatory oversight by the Authority.
(5) The Authority’s general functions are—
(X) (a) its function of the compilation and manufacture of rules and regulations under this Act (considered as a whole) to which all parties operating in relevant markets and sectors shall be required to comply with;
(X) (b) its function of the compilation, manufacture, issuance and continual amelioration of specific, restricted codes under this Act (considered as a whole);
(X) (c) its functions in relation to the the issuance of general guidance (considered as a whole); and
(X) (d) its functions in dutifully and pragmatically addressing non-adherence to the rules and codes, issued by the Authority, under this Act (considered as a whole).


The operational objectives


4(X)The competition objective
(1) The competition objective is: engenderment and maintenance, to an acceptable degree, broadcaster and advertiser confidence.
(2) ‘Broadcaster and advertiser confidence’ shall mean, for the purpose of this Bill, with reference to the service provider perspective:-
(X) (a) the development and maintenance of a free market for broadcasting and advertising services;
(X) (b) the continued impartial application of codes of practices and rules to all;
(X) (c) the continued scrutiny of national, regional, and where appropriate, international operations; and,
(X) (d) the swift application of proportional remediatory action, when necessary and in constant light of the circumstances in which remediatory action has been deemed necessary and justified.

5(X)The service integrity objective
(1) The service integrity objective is: the engenderment and protection, to an appropriate degree, of public confidence.
(2) In considering what degree of protection is appropriate, the Authority must, in lieu of the situation at hand and context, have regard to:-
(X) (a) factors within the direct and indirect control of broadcasters and advertisers;
(X) (b) factors which the Authority deem to otherwise play a significant role in either industry, and
(X) (c) public sentiment.

6(X)The consumer protection objective
(1) The consumer protection objective is: securing the appropriate degree of protection for consumers.
(2) In considering what degree of protection is appropriate, the Authority must, in lieu of the situation at hand and context, have regard to:-
(X) (a) the size of the broadcaster. amd/or size of the advertiser;
(X) (b) the scale to which the party to which the objective applies is exercising its rights and licensing agreements through provision of services within relevant markets;
(X) (c) the role, involvement and circumstances under which third parties interact with broadcasters, advertisers and the provision of their services.
(X) (d) the circumstances surrounding the provision of services, notably, ease of access, channel, time, and physical location.

7(X)The system integrity objective
(1) The system integrity objective is: the adherence by broadcasters and advertisers to designated codes of conduct.


Corporate governance


8(X)Duty of the Authority to follow principles of good governance
The Authority must, in the exercise of its duties and responsibilities, pay due regard to such generally accepted principles of good corporate governance as it is responsible to regard and expect as applicable to it.


Arrangement for consulting persons affected


9(X)The Authority’s general duty to consult
In ensuring the sustainable exercise of its general functions, the Authority must pay due regard and make apt, comprehensive and necessary arrangements for the consultation of persons affected, including but not limited to broadcasters, advertisers and the general public.

10(X)The Industry Panel
(1) Arrangements under section 9 must include the establishment and maintenance of a panel of persons (“the Industry Panel”) to represent the interests of the industry - broadcasters and advertisers.
(2) The Industry Panel must appoint one of its members to be its chairperson.
(3) The appointment of the chairperson must be conducted by a vote of all members, administered by the Authority.
(4) In the circumstance where the vote is inconclusive, or the legitimacy of the vote is otherwise disputed with reasonable certainty, the Authority must appoint one of the members of the Industry Panel to be its chairperson.
(5) The Authority must convene with, and have regard to any representations made to it by, the chairperson or the Industry Panel at once per quarter.

11(X)The Consumer Panel
(1) Arrangements under section 9 must include the establishment and maintenance of a panel of persons (“the Consumer Panel”) to represent the interests of consumers
(2) The Consumer Panel must appoint one of its members to be its chairperson.
(3) The appointment of the chairperson must be conducted by a vote of all members, administered by the Authority.
(4) In the circumstance where the vote is inconclusive, or the legitimacy of the vote is otherwise disputed with reasonable certainty, the Authority must appoint one of the members of the Consumer Panel to be its chairperson.
(5) The Authority must convene with, and have regard to any representations made to it by, the chairperson or the Consumer Panel at once per quarter.

12(X)Duty to consider representations by the Panels
(1) This section makes reference to a representation made, in accordance with the arrangements made under section 9, by, or on behalf of, the Industry Panel, the Consumer Panel or a subset of both.
(2) The Authority is duly obligated to consider the representation, in its entirety.
(3) The Authority is duly obligated to provide the representation, in its entirety, to the opposing Panel.
(4) The Authority is, on consideration, to make a legible statement to both Panels in accordance with the representation.
(5) Where the Authority disagrees with views expressed, or proposals made, in the representation of either Panel, the statement, detailed in section 12(4) is to include reasons for disagreeing.


Reviews


13(X)Reviews
(1) At any point, the Secretary of State may appoint an independent person or persons to conduct a review as the Secretary deems fit into the general culture of broadcasting and advertising, and the effectiveness with which the Authority has used its resources in the discharge of its functions.
(2) A review, conducted under section 13, must be limited to the elements of the industry to which the Authority’s remit extends.
(3) A review shall not extend to the merits of the general policy or principles of the Authority in the pursuit of fulfillment of its operational objectives.
(4) On completion, the review, in a legible form and format, and any such recommendations as considered by the persons conducting the review, are to be present to the Secretary of State.
(5) The report and any such recommendations must, unless for reasons of national economic security, be:-
(X) (a) placed before each House of Parliament; and
(X) (b) published to the general public in such manner as the Secretary of State considers apt.
(6) Any expenses reasonably incurred in the conduct, manufacture and publishing of a review are to be met by the Secretary of State with money provided by Parliament.

14(X)Right to obtain documents and information
(1) Persons conducting a review under section 13:-
(X) (a) have an innate right of access at any reasonable time to all such documents as he reasonably requires or may be expected to require for the sole purpose of the review;
(X) (b) may require any person or persons holding or otherwise accountable for any such document to provide such information and explanation as are reasonably necessary for that purpose, without undue delay;
(X) (c) cannot request documents or information not in the custody or control of the Authority; and
(X) (d) are expected to relinquish all documents and information within 30 days of the conclusion of the review.


Inquiries


15(X)Inquiries
(1) The Secretary of State shall retain the power to arrange independent inquiries into any aspect of the Authority’s actions.
(2) The Secretary of State shall be compelled to arrange an independent inquiries where:-
(X) (a) any combination of the operational objectives have been abandoned by the Authority without due regard to any ramifications and other implications;
(X) (b) the stability of the broadcasting and advertising industry or the stability of the Authority has been threatened by the actions of the Authority in the exercise of its duties and discharge of its functions; or
(X) (c) it is, otherwise, conducive to the public interest for an inquiry to be held.

16(X)Power to appoint persons to hold an inquiry
(1) It shall be the prerogative of the Secretary of State to arrange, hold and otherwise administer inquiries under this section.
(2) The Secretary of State shall be free to appoint such person as they consider appropriate to hold the inquiry.
(3) The Secretary of State may, by manner of written statement to appointed persons, control:-
(X) (a) the scope of the inquiry;
(X) (b) the period during which the inquiry is to be held;
(X) (c) the general conduct of the inquiry; and
(X) (d) the provisions for the enactment of recommendations and publication of reports.
(4) The Secretary of State may not control or otherwise restrict access to data, information, documents or persons pertinent to the scope of the inquiry.
(5) The Secretary of State retains the power to:-
(X) (a) extend the inquiry beyond the defined scope;
(X) (b) restrict the inquiry, with good reason, after the scope has been defined;
(X) (c) require the discontinuation of the inquiry, or to otherwise restrict the progression of the inquiry, and
(X) (d) require the appointed persons to publish interim recommendations and reports, within 28 days.

17(X)Obstruction and contempt
(1) If a person (“A”):-
(X) (a) fails to comply with a requirement imposed onto him by persons appointed by the Secretary of State under section 16;
(X) (b) deliberately, purposefully and willingly delayed the compliance with a requirement imposed onto him by persons appointed by the Secretary of State under section 16;
(X) (c) deliberately, purposefully and willingly provided incorrect or otherwise misleading information in accordance with a requirement imposed onto him by persons appointed by the Secretary of State under section 16;
(X) (d) otherwise obstructed the inauguration, progression or conclusion of an inquiry,
(X) the persons appointed by the Secretary of State under section 16shall be compelled to certify the matter to the High Court, within 14 working days and, if applicable, before the publication of any findings, recommendations or other pertinent information as procured or created by or on behalf of the inquiry.
(2) The High Court is to enquire into the matter.
(3) As part of the inquiry by the High Court, the High Court shall be required to take into account:-
(X) (a) any witnesses who may be produced against or on behalf of A;
(X) (b) any documentation or pertinent information in respect to the handling or potential handling of a requirement to provide information by or on behalf of A, and
(X) (c) any statement made by or on behalf of A.
(3) If the High Court is satisfied that, if the inquiry had been proceedings before the High Court, A would be in contempt, the High Court is to deal with him as if he were in contempt.


PART II
REGULATED AND PROHIBITED ACTIVITIES

The general prohibition


18(X)The general prohibition
(1) No person, company, organisation or other legal entity may carry on a regulated activity in the United Kingdom of Great Britain and Northern Ireland, unless said person, company, organisation or other legal entity, as detailed in this Act:-
(X) (a) is licensed to do so;
(X) (b) is exempt from licensing commitments; or
(X) (c) is otherwise authorised by the Authority.
(2) The prohibition is referred to in this Act as the general prohibition.


Licensing


19(X)Requirement for license
(1) Unless otherwise specified within the scope of this Act, any person, company, organisation or other legal entity is required to have obtained a license from the Authority to carry out regulated activities.

20(X)Determination of applications
(1) In order to obtain a license, the stipulated legal entity must request for a file to be opened by the Authority in writing.
(2) Once the Authority has received the request, the Authority is hereby required to initiate procedure to process and ‘consider’ the entity’s application; an application must be ‘considered’ and determined by the Authority before the end of the period of six months beginning with the date on which it received the completed application.
(3) The Authority may deem an application incomplete, if it is appropriate to do so.
(4) The legal entity, who advanced the application, may withdraw his application, by written notice, at any time; where this occurs, the legal entity shall remain liable for any application costs already incurred or reasonably incurred thereafter.

21(X)Consideration
(1) The Authority is, in ascertaining the eligibility of an entity to be granted a license, hereby obligated to consider the following:
(X) (a) all available and declared information in respect to each director, partner or governing member (if applicable) of the entity;
(X) (b) the corporate interests, and potential conflicts of interest, of each director, partner or governing member (if applicable) of the entity with significant interest and/or holdings;
(X) (X) (i) In this respect, the Authority is to more assiduously focus on the ultimate controlling party.
(X) (c) details concerning any unspent conviction of any director, declared shareholder or other individual of significance;
(X) (d) details concerning the insolvency and/or bankruptcy of any director, shareholder or other individual of significance;
(X) (e) details concerning the disqualification of any director, shareholder or other individual of significance under the Company Directors Disqualification Act 1986;
(X) (f) details of any disciplinary or regulatory proceedings against any director, shareholder or other individual of significance;
(X) (g) applications, other licenses or other comunique to, granted by or otherwise between the respective and applicable prior regulators in the United Kingdom and the European Economic Area;
(X) (h) details concerning any current, pending or completed investigation by any statutory regulatory or government body in the United Kingdom, the European Economic Area or beyond in respect to matters concerning the regulated activities;
(X) (i) the nature of provisions concerning regulated services;
(X) (j) the target audience of broadcasts or advertising;
(X) (k) potential necessary restrictions on duration or timing of scheduled programmes;
(X) (l) any other factor deemed to be necessary by the Authority.
(2) The Authority retains the right to reject an application on the grounds of:-
(X) (a) incomplete applications and/or insufficient documentation supporting said application;
(X) (b) Insufficient justification, demand or niche in the market;
(X) (c) a current lack of broadcast rights for proposed content or lack of contractual agreement with right holders;
(X) (d) conflicts of interest, or convictions that could jeopardise the integrity or impartiality of the legal entity, the Authority or the relevant market as a whole;
(X) (e) insufficient backing capital;
(X) (f) a systemic and corporate stance of broadcast impartiality;
(X) (g) contraventions of existing advertising or broadcast regulation in the United Kingdom or European Economic Area;
(X) (h) pending investigations by any regulator in the European Economic Area, the United States of America, Canada, Australia or New Zealand.
(X) (i) the previous, or intended broadcast, advertisement or promotion of the material of proscribed organisations under the Terrorism Act 2000; or
(X) (j) any other determining factor as considered by Authority.
(3) Any license granted by the Authority remains in effect until such a time when:-
(X) (a) five years (1825 days) have elapsed;
(X) (b) there is a significant change in the circumstances of the legal entity;
(X) (c) the Authority deems it necessary for the license to be revoked,
(X) whichever occurs first.
(4) The legal entity retains the right to reapply for a license at any time, as long as not restricted by the Authority.
(5) The Authority retains the right to impose additional requirements at the point of license consideration.
(6) Requirements imposed by the Authority may require the legal entity to pursue additional courses of action to retain the license granted, may extend to activities beyond the regulated activities and may include people and entities not actively under the jurisdiction of the Authority.
(7) Rejection of, or a failure to comply with, the imposed requirements within a reasonable time scale, as determined by the Authority, shall result in automatic license revocation.


Exemptions from licensing commitments


22(X)Government entities
(1) Government entities, including but not limited to executive departments, committees, and non-executive agencies, shall be exempt from requiring a license from the Authority in order to carry out regulated activities.

23(X)Charities
(1) Registered charities shall be exempt from requiring a license from the Authority in order to carry out regulated activities, as long as the exercise of regulated activities works in order to advance the relevant charitable cause.
(2) By order of the Authority or the Department of Digital, Culture, Media and Sport, exercising power on behalf of the Secretary of State, the exemption of specified charities from the general prohibition may be revoked.
(3) Where the exemption of a specified charity has been or is going to be revoked, the power that has effectuated the revocation process shall be required to publicly advance justification for doing so.
(4) Charities retain the right for the opposite power to review the decision for an exemption revocation.



Other authorisation


24(X)Temporary authorisation
(1) The Authority may temporarily permit a legal entity to carry out a regulated activity, by order (“an exemption order”) exempting a legal entity from the general prohibition, if:-
(X) (a) it is deemed to be in the public interest;
(X) (b) the exercise of said regulated activity does not compromise other licensed entities from doing so;
(X) (c) the exercise of said regulated activity is expected to be temporary, lasting no more than 60 days.
(2) An exemption order granted by the Authority will provide from an exemption from the general prohibition, with designated provisions:-
(X) (a) in respect to all, one or multiple specified, as in the exemption order, regulated activities;
(X) (b) applying only in specified circumstances, to specified functions;
(X) (c) relating to any other condition as deemed necessary by the Authority.


Offences


25(X)Non-compliance with the general prohibition
(1) It shall be an offence to fail to comply or adhere to the general prohibition.
(2) Any legal entity or person who fails to comply or adhere to the general prohibition shall be liable to imprisonment for a term not exceeding 12 months, and to a fine not exceeding 5,000,000.00 GBP.

26(X)Fraudulent declarations, applications or representations
(1) In accordance with the Fraud Act 2006, it shall be an offence to knowingly make a false declaration, application or other representation; to make a declaration, application, or other representation which may be untrue; or to dishonestly fail to disclose information, which he has a legal duty to disclose, to the Authority.
(X) (a) a representation may be express or implied, and may be made through any communication mechanism including but not limited to writing, verbal or digital communication methods.
(2) Subject to the circumstances, a person who is guilty of fraud is liable:-
(X) (a) on summary conviction, to imprisonment for a term not exceeding 12 months, or to a fine, in his own right, not exceeding the statutory maximum, or to both;
(X) (b) on conviction on indictment, to imprisonment for a term not exceeding 10 years or to a fine, in his own right, or to both.
(3) Where a false representation has been made on behalf of another legal entity, and in circumstances where said legal entity was aware of the false declaration and/or where said legal entity was set to obtain, or under the impression of obtaining, financial or social gain, the legal entity shall be guilty of fraud.
(4) Subject to the circumstances, a legal entity who is guilty of fraud is:-
(X) (a) liable to a fine not exceeding 10% of its gross annual turnover, if applicable, or 1,000,000.00 GBP, whichever is greatest;
(X) (b) subject to investigation and subsequent prosecution by the Registrar under the Companies Act 2006.
(5) The principal license holder and legal entity, if applicable, if guilty of fraud, will have their license revoked, and may be permanently excluded from holding a license for a period as specified by the Authority at the time of license revocation.

27(X)Enforceability of agreements
(1) Any agreement, contractual arrangement or otherwise established exchange made by a legal entity in the exercise of a regulated activity in direct contravention of the general prohibition is unenforceable, in all circumstances, against the other party.
(2) The other party shall be entitled to receive all money, property or other items exchanged or transferred to the legal entity in contravention of the general prohibition.
(3) The other party shall, also, in select circumstances and under the supervision of the Authority, be entitled to compensation for any loss sustained as a result of having parted with the money, property or other items as specified in subsection (2), and any loss sustained as a result of entering into any agreement, contractual arrangement or other established exchange; this is to include administrative costs, legal fees and loss of revenue as deemed appropriate by the Authority.
(4) The other party shall be entitled to the items stipulated in subsections (2) and (3) with statutory interest.

28(X)Outstanding liabilities
(1) The Authority is to be named as the preferential creditor on the declaration of insolvency and in all subsequent administration or liquidation proceedings.


Additional licensing stipulations


29(X)Public sector broadcasters and advertisers
(1) Broadcasters and advertisers who are directly involved in the public sector and otherwise used by the Government, in any shape or form, shall be subject to greater scrutiny, and shall require an additional ‘enhanced license element’.

30(X)Party political broadcasts
(1) Broadcasters and advertisers who are directly involved in the distribution and promotion of party political broadcasts, in any shape or form, shall be subject to greater scrutiny, and shall require an additional ‘enhanced license element’.

31(X)International entities
(1) Broadcasters and advertisers whose principal company registration is not conducted in the United Kingdom shall be subject to greater scrutiny, and shall require an additional ‘international license element’.
(2) Similarly, broadcasters and advertisers with significant operations in foreign countries, shall also require an additional ‘international license element’.

32(X)Age-restricted services
(1) Broadcasters and advertisers who wish to provide or advertise age-restricted services, barring the National Lottery, shall be subject to greater scrutiny, and shall require an additional ‘restricted license element’.


Additional license elements


33(X)Additional license elements
(1) Supplementary to section 21, and as stipulated in sections 29, 30, 31 and 32, additional license elements may be necessary.
(2) Broadcasters and advertisers may choose to request an ‘additional license element’ at the time of original license application or at any point afterwards.
(3) In respect to ‘enhanced license elements’, the Authority is to, on granting a license, take additional care and require more established impartiality protocol, a publicised constitution and recorded accountability in broadcasting and advertising.
(4) In respect to ‘international license elements’, the Authority is to, on granting a license, take additional care and pay greater due diligence to the accounts of the legal entity, ensuring that funding originates from legal streams, legal practice, and the compatibility of international or foreign domestic legislation and regulation to British legislation and regulation, in respect to advertising and broadcasting.
(5) In respect to ‘restricted license elements’, the Authority is to, on granting a license, take additional care and ensure that enhanced practices and protocols exist in respect to the ‘watershed’ and that systems are in place to ensure that age-restricted services can only be accessed by those for whom it is intended.

34(X)Failure to obtain
(1) Any legal entity who fails to obtain an additional license element, when it is required, is liable:-
(X) (a) to a fine not exceeding 5% of annual turnover or 1,000,000.00 GBP, whichever is greatest;
(X) (b) license suspension;
(X) (c) license revocation; or
(X) (d) term-limited or indefinite ineligibility (“a prohibition order”) for licensing.
(2) The Authority is hereby required to take into account the general circumstances and corporate climate surrounding the failure to obtain an additional license element, when required, and de facto adherence to stipulations, had the additional license element been in place.


Prohibition orders


35(X)Prohibition orders
(1) The Authority retains the right to make an order (“a prohibition order”), in accordance with the general prohibition, prohibiting an individual, organisation, or legal entity from performing a specified function, performing a function that falls within a specified description under the remit of the Authority, or any function.
(2) The prohibition order may prohibit an individual or group of individuals definitely or indefinitely from engaging in restricted functions, in all organisations and legal entities, or may simply associate said person to one singular organisation.
(3) Any individual or group of individuals who performs, agrees to perform, or intends to perform any function in breach of the conditions stipulated within his prohibition order, or a prohibition order that applies to him, is guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(4) The Authority is required to make a prohibition order in writing, and the prohibition order must stipulate the terms and duration of the prohibition:-
(X) (a) where the prohibition is indefinite, the order must detail the reasoning for doing so, and must detail the individual’s or legal entity’s avenues for legal recourse or appeal;
(X) (b) where the prohibition is definite in duration, the order must detail the method in which the individual or legal entity may, after the defined period, recommence the specified functions, and under what circumstances they may be able to do so.


Conduct


36(X)Statements of principle and codes of conduct
(1) In accordance with the general duties of the Authority, the Authority is obligated to release and otherwise issue statements of principle and codes of conduct, to apply to all or specified license holders and operators of broadcasting or advertising services.
(2) Codes of conduct issued by the Authority may stipulate:-
(X) (a) descriptions, and unnamed examples, of conduct which, in the opinion of the Authority, facilitate compliance with the Authority’s principles and the statement of principle, to which the code of conduct applies to.
(X) (b) descriptions, and unnamed examples, of conduct which, in the opinion of the Authority, hinder compliance with the Authority’s principles and the statement of principle, to which the code of conduct applies to.
(3) The Authority is required to regularly alter, replace and update statements of principle and codes of conduct as it becomes necessary to do so.
(4) Failure to comply with a statement of principle by a license holder does not, in of itself, give rise to any right of action, or any disciplinary action by the Authority.
(5) Repeated non-compliance, however, may result in action being taken by the Authority to restore the market equilibrium.
(6) All statements of principle and codes of conduct issued by the Authority must:-
(X) (a) be justified,
(X) (b) appropriate in its remit, and
(X) (c) include a cost-benefit analysis, detailing benefits and costs of code issuance, except in circumstances whereby the cost of code issuance is negligible.


Disciplinary powers


37(X)Disciplinary powers
(1) The Authority, in its position as the primary regulator of broadcasting and advertising services, has the power to instigate disciplinary action against a person or a legal entity.
(2) The Authority may take action against a person or legal entity under this section if:-
(X) (a) it appears to the Authority that he is guilty of misconduct in office or the exercise of authorised functions; and
(X) (b) it appears to the Authority that it is appropriate, apt and reasonable in lieu of events and circumstances to take action against him.
(3) A person or legal entity is guilty of misconduct, if whilst holding a license issued by the Broadcasting and Advertising Conduct Authority:-
(X) (a) he has failed to comply with a statement of principle issued under section 36 on multiple occasions, or where his failure to comply severely prejudices and undermines the operational objectives of the Authority, or
(X) (b) he has knowingly contravened any rule, stipulation or other requirement imposed upon him by the Authority.
(4) If the conduct of a person or legal entity reasonably amounts to misconduct, the Authority is entitled and hereby required to take action under this section against the person or legal entity, including but not limited to:-
(X) (a) a financial penalty of no limit;
(X) (b) increased observation or supervision by the Authority;
(X) (c) greater scrutiny of licensing and corporate arrangements;
(X) (d) restriction, in part, of specified functions;
(X) (e) temporary suspension of licensing arrangement with the Authority;
(X) (f) revocation of additional license elements
(X) (g) revocation of license.
(5) In considering the disciplinary action against a person or entity, the Authority is to pay due regard to:-
(X) (a) the extent to which the relevant market was compromised by misconduct;
(X) (b) the extent to which the misconduct could have been reasonably averted;
(X) (c) the extent to which the entity was informed of repeated non-compliance;
(X) (d) the seriousness, and intent of non-compliance;
(X) (e) the degree to which the statement of principle or other requirement imposed upon him by the Authority was crucial to market stability and integrity.
(X) (f) the extent to which the misconduct was deliberate, reckless or otherwise caused by negligence;
(X) (g) the degree to which the misconduct is likely to engender or augment a corporate sense of non-compliance and administrative negligence; and
(X) (h) the legal, financial and international status of the person or legal entity.
(6) In all circumstances where the Authority advances disciplinary action against a person or entity, the Authority must publish a statement outlining the misconduct of the entity, except in circumstances where doing so would prejudice the disciplinary process.
(7) The statement, issued under subsection 6, is to include the rationale for the imposition of disciplinary action, the duration and extent of any disciplinary action, and the statement of principle aspect or other requirement, if in the public domain, imposed on the entity and subsequently contravened by the entity.
(8) The statement must be kept in accordance with data protection requirements, and must be sent to the Department for Digital, Culture, Media and Sport, within twenty working days.
(9) The statute of limitations for misconduct under the remit of the Authority shall be a period of 730 days (two years) from the date it was made aware or otherwise knew of the misconduct.


Appeals


38(X)The Broadcasting and Advertising Tribunal
(1) For the purposes of this Act, there is to be a tribunal known as the Broadcasting and Advertising Tribunal (“the Tribunal”) who shall act as the major arbiter in respect to disputes between the Broadcasting and Advertising Conduct Authority and third parties.
(2) The Tribunal is to have functions conferred on it by or under this Act, and subsequent acts.
(3) The conduct of proceedings before the Tribunal, in addition to the elements established in this Act, shall be established by the Secretary of State, and may be otherwise amended or managed by subsequent acts, or regulations.
(4) The Tribunal is to hear proceedings, once instructed to by a third party and once both sides have supplied evidence in respect to their perspective.
(5) The Tribunal is duly obliged to consider any evidence relating to the subject matter of the proceedings, whether or not the evidence was available to the Authority at the time of its decision or action.
(6) The Tribunal must, subsequently, determine what (if any) would have been the appropriate action for the Authority to take in relation to the matter referred to it, and what ought to be the subsequent course of action.
(7) The Tribunal must, once a decision has been made, remit the matter back to the Authority with such directions to the Authority to rectify the situation.
(8) The orders of the Tribunal are binding on both parties, unless overturned by a higher court, and may be enforced as if it were an order of a county court.
(9) The Tribunal may not, in respect to a decision in relation to a prohibition order, undermine the authority of the Authority, nor must make assumptions in their findings.
(10) The Tribunal may not suggest a course of action that the Authority could not reasonably have completed or fulfilled in the circumstances in which the decision by the Authority was made.

39(X)Right to appeal
(1) Throughout the application process, and in respect to any decision taken by the Authority in respect to current licensees, the legal entity otherwise affected by the decision of the Authority retains the right to appeal.
(2) Any legal entity who feels aggrieved by a decision of the Authority, where it is reasonable to do so, and where the appeal is not vexatious, may refer the matter to the Tribunal.
(3) The decision of the Tribunal, unless appealed otherwise, is final, and binding on both parties.


PART III
RULES AND GUIDANCE

Rules


40(X)General rule-making power
(1) As the principal regulator, the Authority retains the power to make such rules to apply to licensees in the exercise of regulated activities, or other corporate activity as is expedient in protecting the Authority’s operational objectives.
(2) The Authority’s power to make and enforce rules is not limited or in any other way hindered by any other legislation in force at the point of enactment.
(3) The rules made by the Authority may have an undefined jurisdiction, applying to those not currently under its remit.
(4) Rules made by the Authority are binding, unless stated otherwise.


Guidance


41(X)Guidance
(1) Where it is deemed appropriate and apt to do so, the Authority may issue general guidance or specified guidance to apply to all, a subset, or a specific entity in the exercise of his licensed and regulate functions.
(2) Guidance made by the Authority is not binding, but non-compliance may prejudice any future action against the entity.


PART IV
TRANSITIONAL ARRANGEMENTS

Appeal


42(X)Existing licenses
(1) Existing licenses granted by the Office for Communications shall remain in effect until they:-
(X) (a) expire or lapse, in accordance with the date imposed by the Office for Communications;
(X) (b) become, otherwise, invalid, given a major change in the legal entity’s operations or structure;
(X) (c) are replaced by a license granted by the Authority, which automatically annulls any previous license; or
(X) (d) are annulled or revoked by the Authority, having given the legal entity ninety days notice.
(2) Once a license has lapsed, expired, becomes invalid or is otherwise annulled, the legal entity retains the right to seek a new license from the Authority in accordance with the provisions within this Act.


PART V
AMENDMENTS

Wireless Telegraphy Act 2006


43(X)Amendments to the Wireless Telegraphy Act 2006
(1) The Wireless Telegraphy Act 2006 shall be amended as follows.
(2) Prior to section 1, subsection (1) insert:-
(X) (1) OFCOM and the Broadcasting and Advertising Conduct Authority (“the Authority”) are to be jointly responsible for the electromagnetic spectrum for wireless telegraphy, to the extent where:-
(X) (X) (a) OFCOM shall manage the electromagnetic spectrum for wireless telegraphy in respect to general communications, including but not limited to networking arrangements utilising the WLAN protocols, and mobile telephony systems;
(X) (X) (b) the Authority shall manage the electromagnetic spectrum for wireless telegraphy in respect to broadcasting communications, including but not limited to television services, and digital streaming of programmes.
(X) (2) Where there is an overlap in provisions, that is to say where both entities claim jurisdiction, the Authority is to be the principal regulator.
(X) (3) All references to OFCOM in the remainder of this Act shall be taken to mean both OFCOM and the Authority.


Communications Act 2003


44(X)Amendments to the Communications Act 2003
(1) The Communications Act 2003 shall be amended as follows.
(2) Prior to section 1, subsection (1) insert:-
(X) (1) OFCOM and the Broadcasting and Advertising Conduct Authority (“the Authority”) are to be jointly responsible for communication in the United Kingdom, to the extent where:-
(X) (X) (a) OFCOM shall manage the general communication including but not limited to the utilisation of LAN and WLAN protocols, and mobile telephony systems;
(X) (X) (b) the Authority shall manage communications in respect to broadcasting and advertising.
(X) (2) Where there is an overlap in provisions, that is to say where both entities claim jurisdiction, the Authority is to be the principal regulator.
(X) (3) Where appropriate, the remaining provisions of this Act shall reasonably apply to both OFCOM and the Broadcasting and Advertising Conduct Authority.
(3) Subsections, concerning the provision of broadcasting services, including but not limited to television and radio, are to be amended in such a way that ‘OFCOM’ shall be substituted for ‘the Broadcasting and Advertising Conduct Authority’.
(4) Where there are implicit or explicit conflicts between the Communications Act 2003 and the Broadcasting and Advertising Conduct Authority Act 2018, the Broadcasting and Advertising Conduct Authority Act 2018 shall take precedence in all circumstances, barring those in which to do so would severely undermine the interests of the Authority and the interests and protection of the general public.


Insolvency Act 1986


45(X)Amendments to the Insolvency Act 1986
(1) Schedule 6 of the Insolvency Act 1986 is to be amended as follows.
(2) Schedule 6(1) and 6(2) are to be amended to read the following:-
(X)Category 1: Debts due to outstanding liabilities with the Broadcasting and Advertising Conduct Authority
(X) (X) (1) Sums due at the relevant date from the debtor on account of licensing fees, fines or other financial liabilities to the Broadcasting and Advertising Conduct Authority.
(X) (X) (2) Sums due to the relevant debt from the debtor in respect to any other matter specified in standing contractual obligations.



Broadcasting Act 1996


46(X)Amendments to the Broadcasting Act 1996
(1) The Broadcasting Act 1996 shall be amended as follows.
(2) The Broadcasting Act 1996 is to be amended to the extent whereby all references to “OFCOM” are to be with substituted with references to “the Broadcasting and Advertising Conduct Authority”.
(3) Where there are implicit or explicit conflicts between the Broadcasting Act 1996 and the Broadcasting and Advertising Conduct Authority Act 2018, the Broadcasting and Advertising Conduct Authority Act 2018 shall take precedence in all circumstances, barring those in which to do so would severely undermine the interests of the Authority and the interests and protection of the general public.


PART VI
CITATION AND COMMENCEMENT


47(X)Citation and Commencement
(1) This act extends to the whole of the United Kingdom.
(2) This act will come into force upon 1 April 2020.
(3) This act may be cited as the Broadcasting and Advertising Conduct Authority Bill 2018.

Schedule 1


SCHEDULE 1
THE BROADCASTING AND ADVERTISING CONDUCT AUTHORITY


PART I
GENERAL

Interpretation


1(X)Interpretation
(1) For the purposes of this Schedule, all items are to be defined in accordance with the overarching bill and supplementary legislation, unless specifically noted otherwise.


Constitution, and the governing body


2(X)Constitution
(1) The Authority is, as to maintain an underlying and necessary degree of efficiency and adhere to legal and ethical practices, to have a ‘Constitution for the operation and governance of the Broadcasting and Advertising Conduct Authority’ (“the Constitution”) created on formation.

3(X)Governing body
(1) The Constitution is to make adequate provisions for the creation and maintenance of:-
(X) (a) a chairperson; and
(X) (b) a governing body.
(2) The governing body must include the chairperson, and a delegated member of his/her detail.
(3) All members of the governing body are to be appointed through election, or other means, as in accordance with general operation practices.
(4) The chairperson is to be appointed through election on a rolling two-year basis.
(5) All other members are to be appointed by the Secretary of State, or, post formation, the remaining members of the governing body.
(6) Members of the governing body may:-
(X) (a) resign of their own accord, having given written notice, not less than 28 days prior to the date of effect, to the chairperson or other delegated member, as per the Constitution;
(X) (b) having been found of malpractice or any other crime with links to the notion of fraud, become ineligible to retain membership; or
(X) (c) be expelled by a majority vote of the remaining members or on the command of the Department for Digital, Culture, Media and Sport, exercising power on behalf of the Secretary of State.
(7) There is to be no predefined limit to the size of the governing body; however, the governing body must be of a size facilitating the fair and otherwise necessary discharge of duties, and governance of the Authority.

4(X)Non-executive members of the governing body
(1) The Authority must, as far as reasonably possible in adherence to the notion of corporate governance, secure:-
(X) (a) that the majority of the members of its governing body, as established in section 3 of Schedule 1 are non-executive members; and
(X) (b) that a committee of the governing body, consisting solely of the non-executive members, is established and maintained for the purpose of discharging the functions conferred on the committee by this Schedule.
(2) As per section 3(3), all members of the non-executive committee are to be appointed by the Authority, by election, or by any other reasonable means.
(3) The non-executive committee is to have a chairman appointed by the Department for Digital, Culture, Media and Sport, from the appointed members.
(X) (a) In exceptional circumstances, the Department for Digital, Culture, Media and Sport may temporarily appoint, for a period not exceeding 3 calendar months, a person exterior to the appointed members.
(X) (b) The person appointed in section 4(3)(a) may have his tenure extended by 28 days, where there has arisen circumstances that compel said action to be taken, or his tenure may be extended through a vote of the appointed members; at this point, the temporary chairperson shall become an appointed member.
(4) The chairperson is to be appointed through election on a rolling two-year basis.
(5) Members of the non-executive committee may:-
(X) (a) resign of their own accord, having given written notice, not less than 28 days prior to the date of effect, to the chairperson or other delegated member, as per the Constitution;
(X) (b) having been found of malpractice or any other crime with links to the notion of fraud, become ineligible to retain membership; or
(X) (c) be expelled by a majority vote of the remaining members or on the command of the Department for Digital, Culture, Media and Sport, exercising power on behalf of the Secretary of State.

5(X)Non-executive functions of the Authority
(1) The non-executive functions of the Authority are functions of the Authority, that must be discharged by the non-executive committee.
(2) The principal non-executive functions shall be:-
(X) (a) ensuring that the Authority, in the exercise of its functions, is utilising its resources, human and financial, in a efficient and economic way;
(X) (b) ensuring that the Authority maintains suitable and resilient internal financial and human controls surrounding the management and allocation of resources;
(X) (c) ensuring that the Authority has in place several plans for alternative courses of action, based on internal activity; and
(X) (d) the determination of remuneration for the principal members of the Authority, and its governing body.
(3) The non-executive committee may have secondary functions conferred upon it by a piece of primary legislation or by a declaration of the Secretary of State.

6(X)Records and reports
(1) In accordance with established practices of corporate governance, the Authority must maintain satisfactory arrangements in respect to the recording of actions and decisions made by the Authority in the exercise of the functions conferred upon it by this Act.
(2) All records must be stored in accordance with data protection protocols, and the internal security guidance of governmental departments.
(3) The Authority shall, quarterly, compile a report for the Secretary of State detailing:-
(X) (a) the exercise of its functions;
(X) (b) the extent to which its operational and regulatory objectives were met;
(X) (c) the extent to which its operations were hindered by external factors;
(X) (d) its protocol surrounding licensing;
(X) (e) any action against it in the Tribunal or courts;
(X) (f) any excessive financial burden placed upon it by the exercise of its functions;
(X) (g) details concerning future plans;
(X) (h) any other detail the Authority deems necessary;
(X) (i) any other detail the Secretary of State has stipulated ought to be in the report.
(4) The report compiled by the Authority may be released into the public domain at the point at which to do would not hinder the actions of the Authority.

7(X)Fees
(1) The Authority shall be self-financing.
(2) The Authority must make rules providing for the payment to it of such fees, in connection with the discharge of any of the functions conferred upon it by this Act, as it considers will, reasonably and given the current and prospective economic climate, enable it:-
(X) (a) to meet expenses incurred in the exercise of functions, or to meet expenses that the Authority reasonably remains liable for;
(X) (b) to repay the principal of, and pay any interest on, any money which it has borrowed from any source, approved by the Secretary of State, including but not limited to the budget of the Department; and
(X) (c) to maintain reserves, reasonably expected of the Authority.
(3) In the management of fees, the Authority is to have full discretion and autonomy.


Notes In this modern day and age, we are relying evermore on technology and the underlying communication systems to conduct business, commute and, put bluntly, survive. With the upcoming rollout of 5G throughout the United Kingdom, the current regulator for communications, the Office for Communications, is about to be put under immense stress and strain - all at a time where its remit extends beyond basic communications and includes the regulation of TV and certain elements of the general media.

Similarly, in this day and age, it is extremely hard to distinguish the actions of broadcasters from advertisers as their operations often overlap in substantial ways. Given this, it is necessary to isolate the broadcasting obligations of the Office for Communications, consolidate and interalise the regulation of both the broadcasting and advertising sectors, as to establish a dedicated, more cohesive and structured regulatory framework, similar to that of the Financial Conduct Authority, under the Broadcasting and Advertising Conduct Authority.

The Broadcasting and Advertising Conduct Authority is to, through the provisions made in this Bill, take over regulatory and operational obligations from the Office for Communications in regards to the regulation of the broadcasting in the United Kingdom, be the principal licensor for broadcasting and advertising in the UK and also take over the activities of the Advertising Standards Agency, which has no legislative authority nor prerogative.

In doing so, we create a more dynamic and apt regulator which has the power to act, and not simply observe mindlessly.

Bill breakdown
Spoiler:
Show
Section 1 - defines the necessary terms for the bill
Section 2 - establishes the Authority, and defines its status
Section 3 - outlines the Authority’s general duties, operational objectives and strategic objective (its raison d’etre)
Sections 4, 5, 6 and 7 - explain in more explicit terms each of the Authority’s operational objectives
Section 8 - outlines the need for Authority to be pragmatic in its operations
Section 9 - outlines the need for Authority to consult on the impact of its decisions and actions
Section 10 and 11 - establish two panels, representing the interests of industry and consumers
Section 12 - makes explicit the duty under Section 9 to consult the established panels
Sections 13, 14, 15 and 16 - establish the procedures under which investigations into the Authority and industry may take place
Section 17 - makes explicit provisions for obstruction and contempt of an inquiry
Section 18 - outlines the general prohibition, around which the Authority regulates
Sections 19, 20 and 21 - outline the process under which an entity may operate around the general prohibition
Sections 22 and 23 - provide exemptions to government entities and registered charities
Section 24 - outlines the process for temporary authorisation
Sections 25, 26, 27 and 28 - relate to the remidatory action to be taken in the case of criminal activity
Sections 29, 30, 31, 32 and 33 - outline additional licensing stipulations and the process in which they apply
Section 34 - stipulates action in circumstances where an entity has failed to obtain an additional license element
Section 35 - outlines the process under which someone or an entity may be prohibited from certain activities under the jurisdiction of the Authority
Section 36 - establishes the Authority’s power to compile rules
Section 37 - outlines the Authority’s power to discipline
Sections 38 and 39 - outline the mechanism for appealing a decision made by the Authority
Sections 40 and 41 - reinforce section 36
Section 42 - stipulates transitional arrangements
Sections 43, 44, 45 and 46 - amend existing legislation as to ensure the Authority remains legally able to carry out its work




Changes for Second ReadingMore comprehensive breakdown of the Bill in Notes as to promote more extensive debate and discussion

0
CoffeeAndPolitics
Badges: 20
Rep:
?
#2
Report 2 years ago
#2
Aye.
0
Jammy Duel
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Rep:
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#3
Report 2 years ago
#3
And the question remains: is this really necessary?
1
Rakas21
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?
#4
Report 2 years ago
#4
This creates a more dynamic regulator.

Aye.
0
Mr Eurosceptic
Badges: 4
Rep:
?
#5
Report 2 years ago
#5
Appears to be a re-wording of the real life 'The Essential Standards for Establishing Broadcasting Stations'. Either way, the current system is fine and textual diarrhea is not something one seeks to support.
0
CatusStarbright
Badges: 22
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?
#6
Report 2 years ago
#6
To ns_2: what do you see as the deficiencies in the current system and does this bill redress those deficiencies?
0
ns_2
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?
#7
Report 2 years ago
#7
(Original post by CatusStarbright)
To ns_2: what do you see as the deficiencies in the current system and does this bill redress those deficiencies?
Ofcom is getting 'too big for its boots' and is trying to regulate far too many distinct industries and methods of communication to act appropriate; the ASA lacks legal prerogative and must instead 'refer' cases to Trading Standards - a source of inefficiency; additionally, broadcasting today is so intertwined with advertisement (whether distinct or product placement) that to regulate broadcasters and advertisers individually creates unnecessary redundancy.

This Bill takes the structure of the Financial Conduct Authority to create a new distinct regulator - the Broadcasting and Conduct Authority with the legal prerogative to investigate and act. In doing so, Ofcom can more assiduously concentrate on its other objectives and consumer interests are, at large, protected.
0
ByronDan_
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Rep:
?
#8
Report 2 years ago
#8
Aye.
0
Jammy Duel
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Rep:
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#9
Report 2 years ago
#9
This has entered cessation
0
Jammy Duel
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Rep:
?
#10
Report 2 years ago
#10
Division! Clear the lobbies!
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