118NTExcess‑capacity access entitlements etc.

#### 118NT Excess‑capacity access entitlements etc. Scope (1) This section applies to a foundation digital radio multiplex transmitter licence for a designated BSA radio area if: (a) on the digital start‑up day for the area, the multiplex capacity available under the digital radio multiplex transmitter licence exceeds the aggregate of: (i) the fractions of multiplex capacity relating to standard access entitlements that have come into existence under subsections 118NQ(2) and 118NS(2); and (ii) the fractions of multiplex capacity reserved under subsection 118NR(2); or (b) at any time after the 12‑month period beginning on the digital start‑up day for the area, the multiplex capacity available under the digital radio multiplex transmitter licence exceeds the aggregate of: (i) the fractions of multiplex capacity relating to standard access entitlements that have come into existence under subsections 118NQ(2) and 118NS(2); and (ii) the fractions of multiplex capacity reserved under subsection 118NR(2); and (iii) the fractions of multiplex capacity relating to any excess‑capacity access entitlements that have previously come into existence under subsections (4) and (7); and an access undertaking is in force in relation to the licence. Initial level of demand for access to excess multiplex capacity must be ascertained (2) If paragraph (1)(a) applies, the digital radio multiplex transmitter licensee must: (a) within 90 days after the digital radio start‑up day for the designated BSA radio area, ascertain the level of demand for access to that excess multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and (b) by notice published on the licensee’s website: (i) give at least 30 days notice of the licensee’s intention to ascertain the level of demand as mentioned in paragraph (a); and (ii) invite content service providers to express an interest in having access to that excess multiplex capacity. Subsequent level of demand for access to excess multiplex capacity may be ascertained (3) If paragraph (1)(b) applies, the following provisions have effect: (a) the digital radio multiplex transmitter licensee may ascertain the level of demand for access to that excess multiplex capacity from content service providers who are entitled to provide one or more content services in the designated BSA radio area; and (b) if the licensee proposes to ascertain the level of demand as mentioned in paragraph (a)—the digital radio multiplex transmitter licensee must, by notice published on the licensee’s website: (i) give at least 30 days notice of the licensee’s intention to ascertain the level of demand as mentioned in paragraph (a); and (ii) invite content service providers to express an interest in having access to that excess multiplex capacity. Demand falls short of excess multiplex capacity (4) If the demand from interested content service providers for access to that excess multiplex capacity, as ascertained under whichever of subsection (2) or (3) is applicable, falls short of that excess multiplex capacity—each interested content service provider: (a) is entitled to access to the fraction of multiplex capacity sought by the interested content service provider (which entitlement is called an excess‑capacity access entitlement); and (b) may only use that excess‑capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and (c) may transfer that excess‑capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area. (5) The excess‑capacity access entitlement referred to in paragraph (4)(a) commences: (a) at the end of the 30‑day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection (2) or (3) is applicable; or (b) if the digital radio multiplex transmitter licensee agrees to an earlier time—at that earlier time. Demand is greater than excess multiplex capacity (6) If the demand from interested content service providers for access to that excess multiplex capacity, as ascertained under whichever of subsection (2) or (3) is applicable, is greater than that excess multiplex capacity, the digital radio multiplex transmitter licensee must: (a) use an open and transparent auction process to determine which content service providers are to have access to which fractions of multiplex capacity for the purpose of providing one or more content services in the designated BSA radio area; and (b) do so before the end of the 60‑day period beginning on the day on which the demand from interested content service providers is ascertained under whichever of subsection (2) or (3) is applicable. (7) If, as a result of an auction process mentioned in subsection (6), a content service provider is to have access to a particular fraction of multiplex capacity, the content service provider: (a) is entitled to access to that fraction of multiplex capacity (which entitlement is called an excess‑capacity access entitlement); and (b) may only use that excess‑capacity access entitlement for the purpose of providing one or more content services in the designated BSA radio area; and (c) may transfer that excess‑capacity access entitlement to another content service provider who is entitled to provide one or more content services in the designated BSA radio area. (8) The excess‑capacity access entitlement referred to in paragraph (7)(a) commences: (a) at the end of the 30‑day period beginning on the day on which the auction process mentioned in subsection (6) is completed; or (b) if the digital radio multiplex transmitter licensee agrees to an earlier time—at that earlier time. (9) For the purposes of the application of paragraph (8)(a) to a content service provider, the auction process mentioned in subsection (6) is completed when the content service provider makes the relevant auction payment. (10) If an excess‑capacity access entitlement is transferred as mentioned in paragraph (4)(c) or (7)(c): (a) the excess‑capacity access entitlement may be further transferred, or successively transferred, so long as the holder for the time being of the excess‑capacity access entitlement is a content service provider who is entitled to provide content services in the designated BSA radio area; and (b) the holder for the time being of the excess‑capacity access entitlement is entitled to access to the relevant fraction of multiplex capacity under the digital radio multiplex transmitter licence for the purpose of providing one or more content services in the designated BSA radio area. (11) This section has effect subject to section 118NV.