Joint Committee on The Draft Communications Bill Appendices to the Minutes of Evidence


APPENDIX 102

Memorandum submitted by J M Wober

GENERAL INTRODUCTION

  This forum is looking at a draft of the Communications Bill. The Bill will set the framework for communications regulation for the next decade. It will affect you as a citizen and a consumer—if you watch television, listen to the radio or read newspapers, or if you use a phone or surf the internet. And it will affect your business—as a user or supplier of communications services.

ACCORDING TO THE GOVERNMENT:

  The Communications Bill will establish a new regulatory framework

    —  it is not necessarily a new framework which is needed but an effective one for the whole of the communications sector. It will transfer functions from five existing regulators (Oftel, the Independent Television Commission, the Radio Authority, the Broadcasting Standards Commission and the Radiocommunications Agency) to a new single regulator, OFCOM.

    —  this may appear neat and compact—but the object should not be to achieve bureaucratic elegance—rather to set up an effective structure in which those who carry out the regulation know the functioning of the institution which they scrutinise, and have instruments with which to uphold the rules—(and by prompt application of sanctions deter subsequent possible infractions—just like referees and umpires at sports and games).

  In its final form, the Bill will make changes to the rules on media ownership. Firm proposals for reform have been published alongside the draft Bill. It will introduce a new structure for broadcasting regulation that is specifically geared to dealing with the digital age, (to come—this has not really developed as heralded) making more use of self-regulation where appropriate.

  Wife beaters and cheats may be in the minority—but self regulation does not work with them and there have to be penalties for socially destructive behaviour—this includes broadcasting material which will be misused

  Public service broadcasters will have greater freedom to regulate themselves in certain areas—they will have to set out what they intend to offer the public and be held to account should they fail to deliver—in return, they will have greater flexibility in how they choose to deliver.

  OFCOM will have concurrent powers with the Office of Fair Trading to apply competition rules in the communications sector (monopolies, mergers, anti-competitive agreements, abuse of dominant positions).

  The Bill will make provision to allow spectrum trading, which will lead to more efficient use of the available communications spectrum.

  OFCOM will establish and maintain "The Content Board" with the principal function of ensuring that the "public interest" in the nature and quality of television and radio programmes is represented within OFCOM's overall structure.

  The new consumer voice will come through a Consumer Panel, whose function will be to advise OFCOM, and other bodies where appropriate, on major policy matters arising from the delivery of communications services.

  There should be no substitute for systematically representative surveys of how people use the services and what their responses are—to those services and to matters of public policy at large—the outcome of such research should be available first to the regulators but then also to the public; experience has shown that the best survey instrument is a "self completion" one—either by postal completion of questionnaires (viz: the Audience Appreciation Panel which still exists) or the YouGov.com email operation (which needs a better website—and OFCOM as a principal client; I have already sent in one example of what I am referring to—the case of the BBC programme Fields of Gold and its possible influence on knowledge about and attitudes to GM science—and possibly GM corruption; and I will append another example at the end of this paper).

GENERAL DUTIES OF OFCOM

  The draft Bill sets out seven general duties for OFCOM, in no order of priority (Clause 3). Paraphrased, these are:

    —  to further the interests of customers;

    —  to promote competition;

    —  to encourage optimal use of the communications spectrum;

    —  to secure a wide range of TV and radio services throughout the UK;

    —  to make sure TV and radio services as a whole are high quality and diverse;

    —  to protect the public from offensive and harmful material on TV and radio;

    —  to protect people from unfair treatment and invasions of privacy in TV and radio;

  Are there any duties which should be added?

  YES—OFCOM should be responsible for providing facts and figures on the content of what has been broadcast (at the moment this is erratically delivered by broadcasters and much of this work has had to be done on the cheap by interested academic researchers); there is also the matter of connecting broadcasting users' attitudes and behaviour with what they have consumed—see my comment above on surveys—or taken away?

  Are some more important than others? Should they be prioritised in the Bill?

Should OFCOM have to explain how it has prioritised them when it comes to making its decisions?

CONTENT REGULATION

  The draft Bill proposes a new system for regulating content on TV and radio. This would be based on three tiers of regulation:

    —  basic standards for practically all TV and some radio broadcasters;

    —  requirements for public service broadcasters (BBC, Channel 3, Channel 4, Channel 5, teletext), on topics such as regional programming and news provision;

    —  specific public service remits for each individual public service broadcaster;

    —  OFCOM would include a Content Board, to focus on content issues

  Do you think there should be more or fewer restrictions on TV and radio content? What sort of restrictions should there be?

  Much as they are at present—with added attention to the sound quality of what is broadcast (being sensitive to the needs and interests of the hard of hearing—a very large minority group)

  Should there be different requirements for channels depending on the method of access (for example, should pay TV channels have the same requirements as channels that are free-to-view)?

  Should there be more regional content on TV and radio?

  How should complaints from the public about broadcast content, including issues of privacy and fairness, be handled?

  Promptly and convincingly—which will be aided by good performance on the tasks of broadcasting assessment referred to in my notes above.

  OFCOM is not intended to regulate internet content. Is this the right approach? Do the definitions in the draft Bill achieve this? How should Ofcom deal with converging media content—for example, interactive services which are delivered to your TV, these should be subject to the same regulation as whatever else appears on the TV or TV programmes viewed over the internet?

  Should internet content produced by public service broadcasters be regulated differently to the rest of the market?

COMPETITION AND MEDIA OWNERSHIP

  One of OFCOM's key roles will be to promote competition in communications markets.

Do you think there is enough competition in the markets for:

    —  mobile phones?

    —  fixed-line phones?

    —  internet access (including broadband internet access)?

    —  pay TV?

  Should OFCOM regulate these sectors less and leave the market to develop? Or should it regulate more to control dominant players?

  How might the Communications Bill encourage a more rapid uptake of broadband? Why should it have to do this? The social and cultural reasons for believing that broadband will work better overall have not been adequately demonstrated. To establish these reasons might indeed be one task to allocate to OFCOM.

  The policy document also proposes some specific changes to media ownership rules. These aim to promote competition while ensuring that the media is owned by a range of players. PLEASE please—media are plural; and those who run them are not "players"; unless the drafters of these documents and those they draw into discussion use words better, all manner of weaselly misconceptions and malpractices will ensue. I include here the malpractice of labelling "evidence" in committee a whole lot of discourse which might better be termed "positioning". What Graham Davies and Greg Dyke said to a recent committee was largely, not "evidence" but explanation and pleading. Unless this whole operation gets clearer about what is and what is not evidence, we enter a land of illusion.

  Providing a diversity of services. Changes include:

    —  removing restrictions that prevent the formation of a single ITV company;

    —  allowing national newspaper owners to buy Channel 5—but not Channel 3;

    —  allowing non-European Economic Area companies to own broadcasting licences;

    —  lifting restrictions on religious bodies holding some TV and radio licences.

  Are specific media ownership rules necessary—or should media ownership be treated in the same way as other markets, and regulated using general competition rules?

  To answer this requires knowledge not only of media but also of other markets. Very few people have such broadband knowledge and to suppose that comments on this are competent is hoping for a lot.

  Will the proposed changes result in a more competitive and diverse media market?

  Should religious organisations be allowed to own national radio and terrestrial TV licences?

  Should cross-media ownership rules include restrictions on owners of new media such as internet portals yes—or does the growth of new media reduce the need for ownership rules?

PUBLIC SERVICE BROADCASTING

  The draft Bill sets out general and specific requirements for public service TV broadcasting (Clause 181). These include requirements about:

    —  drama, comedy and music, and other arts;

    —  news and current affairs;

    —  sporting and leisure interests;

    —  educational, special interest, religious and social issues, and programmes for children and young people;

    —  reflecting the cultural, traditional and community diversity of the UK;

    —  producing content made outside the M25.

  Are these the right (areas about which) requirements (should be established) for public service broadcasting? Yes What should be added—or removed? Are some more important than others?—too long a matter to go into here.

  Under the proposals in the draft Bill, public service broadcasters will have to publish an annual policy statement and report on how they have achieved it. OFCOM will monitor this, and enforce it for most public service broadcasters. NOTE: The iTC under the 1990 Act has had a requirement to assess the effects of programmes broadcast upon public attitudes and behaviour . . . and it has neither done this, nor reported its omission, nor been questioned about it by the Parliamentary Select Committee or individual MPs—it is important for those who scrutinise the instruments of regulation to KNOW THEIR FIELD and this is not always the case—it should not be allowed to become slackeer than it is now. However, for the BBC and S4C, final enforcement powers will lie with the Government and Parliament.

  Do you think this is the right way to regulate public service broadcasting? What are the pros and cons of treating the BBC differently from other public service broadcasters?

  The BBC can be dealt with as a separate phenomenon—because of its size, special historical momentum and value, and the need for those who do the regulation to know a great deal about how it operates. At the same time the regulators (governors) MUST be separated from the main body and equipped with RESEARCH facilities which they in turn operate in a way that is accessible to the public—and on which I have provided a separate memorandum.

  The draft Bill and policy documents contain proposals about how public service TV channels are carried by cable and satellite operators. These are known as "must carry" and "must offer" requirements.

  How important is it that all public service channels are available on cable, satellite and digital terrestrial TV? VERY Will this be more important if analogue TV transmission is turned off? YES

THE ROLE OF THE CONSUMER PANEL (CLAUSES 96 AND 97)

  The draft Bill proposes a consumer panel, primarily to advise OFCOM on matters arising from the delivery of communications services (for example, availability of communications services in rural areas). It will be operationally separate from OFCOM, with a high degree of independence.

  Who should be on the consumer panel? Should it represent small businesses as well as individuals? What about large businesses?

  What sort of topics should it focus on? What role should it have with regard to content regulation?

  Clause 97 sets out the interests to which the Panel should have regard (those living in rural areas or urban areas, disadvantaged people, those on low incomes, those with disabilities, elderly people, people from different parts of the UK). Do any other interests need to be added—or should any be removed?

June 2002


 
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