Select Committee on Culture, Media and Sport Appendices to the Minutes of Evidence



APPENDIX 10


Memorandum submitted by the Broadcasting Standards Commission

GENERAL POINTS

  1.  The Broadcasting Standards Commission welcomes both the policy approaches set out in the White Paper as well as the broad thrust of its detailed proposals. In particular, the Commission is pleased by the continued commitment to the importance of the "widest possible access to a choice of diverse communications services of the highest quality", including strong public service broadcasters, and the recognition of the need to go on safeguarding "the interests of citizens and consumers".

  2.  The Commission supports the intention to make the UK home to "the most dynamic and competitive communications and media market in the world" (1.2.1) balanced by the desire to have "the most trusted and reliable safeguards for citizens and consumers" (1.2.12).

  3.  The Commission continues to stress that access and affordability are crucial tests to meet the White Paper's own objectives because take-up may not be as fast as hoped.

  4.  The Commission also supports the intention to achieve "must carry", "must provide" and "due prominence" provisions for public service broadcasting wherever practicable. (Chapter 3).

  5.  The Commission would also wish to underline the importance of the diversity of ownership across the media and plurality of voice within them, as well as fair representation, as crucial to a healthy media ecology. In the Commission's view, this is not something to be left simply to Competition Law (see the recent report of the German Commission on Concentration in the Media). Any review of the ownership rules relating to commercial television and radio, and the press should keep these basic principles as the test, using a calculation of "share of voice". At the very least, it should not be possible for any one company to own both Channel 3 and Channel 5 (Chapter 4), or for the number of commercial radio licences held in any one area to exceed five.

  6.  The Commission also acknowledges the need to rationalise regulation by providing a body which can have "the vision to see across converging industries and help build a coherent and flexible system. . . combining better representation of consumers and citizens and a careful balance between law, formal regulation and self-regulation" (1.3.6).

  7.  The Commission will work with other regulatory bodies, within the limits of its existing statutory responsibilities, to avoid unnecessary duplication and reduce the potential for double jeopardy prior to the establishment of OFCOM. Some of this is already in place with its concordat with the Radio Authority, and joint research activities with the ITC and others. (Chapter 8)

SECURING QUALITY

  8.  The Commission is pleased to see the key role that public service provision will have in the digital future. The Commission also welcomes the three-tier approach to the regulation of broadcasting content, which is consistent with our proposals to the White Paper process designed to encourage greater responsibility on the part of content providers.

  9.  The Commission agrees that the BBC, S4C and Channel 4 should remain as the principal public service broadcasters, operating as public corporations, but it also supports the continuation of Channels 3 and 5's contribution, albeit in a modified form (5.4).

  10.  However, it seems inconsistent with the overall direction of the White Paper proposals that the BBC is not brought more clearly within the regulatory framework. The basic codes for the first tier (5.6.1) apply to all broadcasters, including the BBC, these include the impartiality requirement. It would be for the Governors to ensure compliance but it should be for OFCOM to conclude, on appeal, whether the requirements had been satisfactorily met. Equally, in the third tier, if OFCOM is to have the responsibility of ensuring cross industry issues of public service broadcasting provision and performance (5.8.4), the Governors should "have regard" to OFCOM's views rather than "naturally want to consider".

COMPLAINT HANDLING

  11.  The Commission understands the logic of providers being given the opportunity to deal with complaints (5.6.4). It matches the concept of greater self-regulation that underpins the White Paper's approach. However, the Commission's own experience of the handling of both standards and fairness and privacy complaints, and the views of complainants themselves, indicate that there is strong public support and value for a complaint handling system which is seen to be independent of the editorial process and which can provide efficient, judicious and timely redress.

  12.  Content complaints are generally of a different order to those of service delivery. There is a degree of personal involvement and investment, as well as a sense of rights denied with fairness and privacy complaints, which is not the same as issues of value for money or delivery.

  13.  To argue that to move to a provider based service in the first instance may not command general public support because it will not be viewed as sufficiently at arm's length, may add to the time taken to achieve redress and will be inconsistent in its results. It may be thought to be a lessening of present processes of accountability and transparency.

  14.  Complaints are also an important indicator of audience concerns. OFCOM will need information from the complaint process to inform its own work as well as the power to impose sanctions, if the issue is sufficiently serious, even if the provider has dealt with the complaint.

  15.  At the very least, OFCOM will need the power to be able to reassure itself that whatever complaint mechanism is put in place, it must command the confidence of complainants and broadcasters by its visible independence and fairness, as well as providing fast and effective relief within strict time limits.

  16.  Sanctions will range from publication, to a stop on further transmission, to a formal warning of a fine. In the interests of a level playing field, this should apply to all broadcasters. OFCOM will also require powers to require tapes and other materials from the BBC as well as licensed services, as well as the power to summon broadcasters and conduct hearings much as the Commission has at present in Part 5 of the Broadcasting Act 1996.

  17.  The Commission also believes that it is important to fairness and privacy cases, as well as other significant content complaints, for the citizen dimension to be reflected in the decision-making process by citizen members of a content committee of OFCOM operating under delegated powers. Such lay involvement has been a strong feature of content regulation for a number of years and there is every indication that it has public confidence. (See Annex)

PUBLIC SERVICE OBLIGATIONS

  18.  The Commission agrees that the new regulatory regime will need flexibility to consider any variation of the obligations of Channels 3 and 5 (5.6.10 and 11). These are essentially judgements about market conditions and should be part of OFCOM's remit assisted by appropriate research.

  19.  The Commission takes the view that the third tier obligations should be the matter of promises of performance based on the commissioning and scheduling cycle. The promises would be an interpretation of how each public service broadcaster intended to meet their high-level public service obligations as defined in their licence for the period ahead, bearing in mind developments in audience expectations. OFCOM would be available to give guidance or advice, if required. But its statutory duty would be to comment on performance and, if necessary apply sanctions for non-compliance.

SAFEGUARDING THE CITIZEN

  20.  Again, the Commission welcomes the intention to establish high level principles and objectives for the regulation of content, based on the differences between services and audience expectations of them (6.1). The Commission is content with the elaboration set out in 6.3.6 and 6.3.7. but it would offer two comments. The first is that the reference to "accepted community standards" needs to be clear in legislation to mean the standards widely accepted within society, ie what is acceptable to the majority rather than a minority, however defined. Second, the Commission is of the view that accuracy and impartiality are essential rather than "desirable".

  21.  Based on its own experience, the Commission also endorses the White Paper's proposals for research and media literacy.

  22.  In order to establish what those acceptable standards might be, and the differential expectations of the various delivery platforms, OFCOM's research programme will need to be both continuous and widespread (6.3). Recent research for the Commission suggests that audiences feel both confused and disenfranchised by some of the changes, while understanding and welcoming the choice being offered to them.

  23.  The Commission suggests that a three stranded-programme of research should be undertaken on audience and consumer expectations. The three strands would be:

    (i)  Monitoring and validation (a continuous programme of research):

    —  To track changes and the sensitivities of the audience, as well as the shifting preferences of the consumer

    —  To track and anticipate changes in the marketplace and their impact on the consumer

    —  To monitor the changes created in the broadcasting environment by the different opportunities offered by the various delivery platforms

    —  To validate diversity measures, some examples of which are outlined in the White Paper

    (ii)  Community standards (including technical standards):

    —  Definition of the standards and the changes that occur over time

    —  Definition of standards that apply to certain population groups, especially as niche programme opportunities become more widespread

    —  Work on the protection of children and vulnerable groups (eg with regard to privacy)

    —  Consumer rights and protection devices

    —  Development of tools to co-regulate/self-regulate

    (iii)  Access (including awareness raising campaigns, media literacy across broad population groups):

    —  Track access by defined groups

    —  Work with other organisations/facilitate education and training possibilities (hardware ad content)

    —  Work with other organisations/facilitate awareness and information campaigns, especially with regard to tools available

    —  Work with other organisations/facilitate media literacy projects, with especial regard to personal/familial regulation.

  24.  While the Commission welcomes the endorsement of citizen's juries and panels it would hope that appropriate methodologies could be chosen to answer specific research needs.

  25.  There may be some overlap with carriage issues as they impact on audience expectations.

  26.  Ratings and filtering systems will also need to be built into the research requirement identified in 5.6.3 and 6.4.1-3.

  27.  We agree that fairness and privacy complaints should come directly to OFCOM (6.5.1 and 2), as these are matters that touch on the fundamental rights of individuals and others and should be the matter of speedy redress. (See also the comments on complaint handling above.)

  28.  The content committee within OFCOM referred to above needs to be able to draw on the expertise of those who can bring insight, experience and an independent view to the consideration of content issues.

  29.  The Commission agrees that rating may well be an additional tool for the longer term in providing information about the nature of content, no matter the platform or means of delivery (6.7.4).

  30.  The Commission is already working within the Council of Europe and with ICRA and IWF and broadcasters and other regulatory bodies to ensure reliable protective devices for Internet users (6.10). It will be an important focus for OFCOM.

  31.  However, the Commission believes it is important to maintain OFCOM's role as setting the framework for content standards, and only dealing with any content problems post delivery. We therefore think the role of classification belongs outside of OFCOM with an appropriate co-regulatory body such as the BBFC (6.11.12), though OFCOM could be given the duty to consider complaints about classification.

PROTECTING THE CONSUMER

  32.  The Commission welcomes the clear separation of content and service issues and supports the appointment of a consumer panel to advise and lobby on delivery matters (7.5.1).

  33.  However, we think it would be a mistake to confuse the different roles of customer service, pricing and value for money with content concerns (7.5.2). OFCOM's research and its content committee should be capable of providing guidance on the assessment of public attitudes.

THE NEW ORGANISATIONAL FRAMEWORK

  34.  The Commission believes that OFCOM as a new body should start from first principles rather than simply seek to bolt together the existing bodies. Its form should follow its functions, with an integrated horizontal structure allowing for working across sectors and disciplines (8.1), rather than a pillar structure.

  35.  Given the potential power and scope of OFCOM, the Commission agrees it should have a board structure comprising both non-executives (in the majority) and executives who take responsibility for particular areas. OFCOM should also have specialist sub-committees with delegated powers, which may have a more representative feel, to exercise particular specific functions (ie content issues or radio licensing), with major issues of policy coming to the main board (8.6).

  36.  The Commission also agrees that any internal conflicts between OFCOM's objectives should be the subject of clear and transparent procedures and appeal processes.

  37.  The Commission supports the basic objectives set out in 8.5 as well as the licensing proposals and suggested powers set out in 8.8 and 8.9, and the approaches set out in 8.10 and 8.11.

  38.  The Commission sees OFCOM's main areas of responsibility as follows:

    Content (the citizen basket)

      —  The basic codes, the three tier system, advertising, rating and filtering, media literacy

      —  Compliance

      —  Complaint

      —  Research

    Licensing and legal

    Networks and service delivery (the consumer basket)

      —  Pricing

      —  Delivery

      —  Access and interoperability

      —  Compliance

      —  Health and environmental

      —  Consumer Protection and Panel

    Spectrum management

      —  Policy

      —  Allocation

      —  Pricing

    Competition and economic issues

      —  Pricing and access issues

      —  Market/Economic research

    Policy and international relations

    Communication, public affairs

    Information

      —  IT

      —  Library

    Finance

    Administration

    Human resources

  39.  For the structure and functions of the Content Regulatory Committee which the Commission proposes, see the attached Annex.

Annex

CONTENT REGULATORY COMMITTEE

  1.  The Commission would propose as one of the committees of OFCOM a focused forum specialising in content matters for citizens and broadcasters which, by its transparent procedures was able to gain the confidence of both, allowing it to influence policy and stimulate debate whilst providing a simple, cost-efficient solution to concerns.

  2.  Members would be appointed to provide knowledge and expertise, informed by an appreciation of audience concerns.

FUNCTION

  Advises OFCOM about citizen concerns, helping to shape policy and the codes, to protect citizen interests and advise content providers

  Strong liaison with research function, both informing of issues and learning from results

  Complaint service with simple, clear procedures and responsibilities which has the confidence of all stake holders and provides appropriate redress

  To use the information gained from complaints to help develop policy to protect the interests of citizens and advise content providers

  Each broadcaster to have a procedure for dealing with complaints. Procedures subject to consultation with Content Regulatory Committee and must be approved by the Director of content

STRUCTURE

  OFCOM appointed members (approximately 10) representing a broad cross-section and contributing personal expertise and experience, but independent of industry. Duty to consider issues raised by complaints and reflect interests of viewers/listeners re content.

  Mandated and delegated by the OFCOM board to take decisions, especially on fairness and privacy complaints

  Funded by OFCOM

  Supported by content staff

  Legal advice provided by OFCOM

BENEFITS

  Regulator benefits from informed debate before taking decisions

  Citizen dimension taken seriously by regulator and commands public confidence

  Content Regulatory Sub-committee has weight of regulator behind it

  Content Regulatory Sub-committee has access to knowledge and expertise of OFCOM staff

APPEALS

  Appeals to the Committee

  Judicial Review

February 2001


 
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