Joint Committee on The Draft Communications Bill Minutes of Evidence


Memorandum submitted by the Centre for Justice and Liberty and the Evangelical Alliance

INDEX

  1.  Background.

  2.  What is our objection?

  3.  Effect of the Draft Bill on Religious Broadcasters.

  4.  Reasons given for continuing the Ban by the DCMS and Regulatory Authorities and the Centre's response to them.

  5.  Joint Request on behalf of the Independent Christian Broadcast Media Industry and the Christian Community.

  The Industry requests an opportunity of Christian and other religious broadcasters to apply for any UK broadcasting licences just like their secular competitors—to meet unfulfilled demand for Christian broadcasting nationwide—and to adhere to existing religious programme content rules and safeguards. (Radio and TV exposure will enable the Christian music industry to develop and prosper at home and in European and International export markets).

  We object to the statutory disqualification of persons who hold office in any church or religious charity.

  We want to thank the Committee for giving us the opportunity to appear before them and address the Draft Communications Bill proposals to carry over discrimination and disqualification of religious persons or bodies from the 1996 Broadcasting Act. Also, please will the Committee address the issues of spectrum scarcity or abundance, future digital Medium Wave Radio, unfulfilled demand for Christian broadcasting nation-wide and the Radio Authority's answers about the European Court of Human Rights.

1.  BACKGROUND
1990Ban introduced by David Mellor MP against religious persons/bodies.
1996Ban extended to cover every type of digital licence for the future.
199953 Council of Europe members sign Motion calling on the UK to change the law to allow religious bodies to apply for national radio licences.
1999202 MPs sign Early Day Motion calling on the Government to change the law to allow Christian music radio to be broadcast.
1999House of Commons, Ten Minute Rule Bill to remove national religious restrictions carried by 129 majority but ran out of Parliamentary time.
2000Under-Secretary of State announces in local press, that Draft Communications Bill will remove national religious ban. (This was not implemented).
2001European Court of Human Rights granted Centre for Justice and Liberty a new religious discrimination case against the UK Government to continue the previous case after accepting a complaint about misleading UK Government information.
2004?The proposed ban on multiplexes will exclude religious persons and bodies from digital medium wave radio services.

2.  WHAT IS OUR OBJECTION?

  We object to Clause 232 of the Draft Communications Bill enforcing the classification of any religious person or body as a disqualified person.

  It retains the 1990 Broadcasting Act disqualification, in relation to radio and TV licences against:

    (a)  a body whose objects are wholly or mainly of a religious nature;

    (b)  a body which is controlled by a body falling within paragraph (a) or by two or more such bodies taken together;

    (c)  a body which controls a body falling within paragraph (a);

    (d)  a body corporate which is an associate of a body corporate falling within paragraph (a), (b) or (c);

    (e)  a body corporate in which a body falling within any of paragraphs (a) to (d) is a participant with more than a 5 per cent interest;

    (f)  an individual who is an officer of a body falling within paragraph (a); and

    (g)  a body which is controlled by an individual falling within paragraph (f) or by two or more such individuals taken together.

  Then only if OFCOM regulators are satisfied on an application, can they deem it appropriate to lift the disqualification, but then only for restricted service licences lasting just a few weeks, and local radio and digital programme services, most of which will have been allocated when the Communications Bill becomes law.

3.  EFFECT OF THE DRAFT BILL ON RELIGIOUS BROADCASTERS

  The effect of the Draft Communication Bill means that the UK Christian Broadcast Media Industry and Media owners and officers holding office in a religious body, (eg trustees of religiously affiliated charities, church treasurers etc) are disqualified from applying from the following:

    —  national analogue radio licences;

    —  national digital sound programme licences;

    —  analogue radio additional service licences;

    —  local radio multiplex licences;

    —  national radio multiplex licences;

    —  all Analogue TV licences;

    —  national TV multiplex licences;

    —  Local TV multiplex licences.

  This is taken from Section 9.3.3 of the draft Communications Bill Policy wording:

    "The Government has considered the many representations in connection with the restrictions on religious broadcasting. Where there is sufficient spectrum availability, restrictions on religious bodies holding licences will be removed. The draft Bill will therefore be amended to allow OFCOM to award to religious bodies TV licences for digital programme services, digital additional service licences and restricted service licences. This is in addition to the undertaking in the Communications White Paper to allow religious bodies to hold digital local sound programme licences. Religious bodies can already hold local analogue radio licences and satellite and cable TV and radio licences. There will continue to be restrictions on national analogue radio and national digital sound programme licences, analogue TV licences and analogue additional services licences, and local and national radio and TV multiplex licences".

  Moreover, the restrictions, as they are worded in the 1990 Act, appear to have forced the regulator to interpret them in a wider context, effecting non-religious companies. It appears that a commercial company that wanted to provide a Gospel music service is at a disadvantage as compared to a station providing jazz, classical, country, rock or pop music.

4.  REASONS GIVEN FOR CONTINUING THE BAN BY THE DCMS AND REGULATORY AUTHORITIES AND THE CENTRE'S RESPONSE TO THEM
Up to 1988To protect the viewing public from "US Televangelists". The British Christian media industry objects to this label, from our competitors. See Radio Authority Codes 6.1 to 6.10 below.
1989To prevent "Moonies and cults", from broadcasting in the UK. The regulatory codes specifically prevent antisocial religious groups from broadcasting.
1990The BBC asked for ban, (affording Public Service Broadcasters full control of national UK religious broadcasting, a monopoly). However since 1990, BBC 1 and 2 television output increased by 50 per cent, while their religious content was reduced by 33 per cent.
1998DCMS said that Churches supported the ban against Christians broadcasting. In 2001 the Churches and Christian Broadcasters successfully refuted this claim.
1999We are unable to grant licences due to a "severe shortage of frequencies".

"and in a multi-channel world, when spectrum scarcity is no longer an issues, there will be even more channels than now." Tessa Jowell MP, Secretary of State at DCMS, smf speech, 19 June 2002.
2000Christian broadcasters are excluded due to the DCMS responsibility of "Enforcement of pluralism and diversity in broadcasts".

"IN" and not across broadcasts unlike other secular broadcasters eg Carlton Food Network has no requirement to carry sport, or Classic FM, are not expected to carry heavy metal music.
2001"Religious content has the capacity to offend those with different views and opinions" (Section 4.9.2 New Future for Communications White Paper).

British religious broadcasting has decades of proven track record of being both responsible and objective programmers and there are plenty of secular alternatives for those who don't care for Christian music.
2002"Could militate against the promotion and understanding of all faiths" (DCMS /DTI Media Ownership Consultation).

But, this is not the view of the faiths or the Christian churches.


5.  JOINT REQUEST ON BEHALF ON THE INDEPENDENT CHRISTIAN BROADCAST MEDIA INDUSTRY AND THE CHRISTIAN COMMUNITY

  We request that clause 232, (disqualifying religious bodies), of the Draft Communication Bill be deleted and replaced by implementation of the following decisions taken by Parliament with respect to the 1990 Broadcasting Act:

    A.  Only fit & proper persons are allowed to own licences Clause 3.(3) of the Broadcasting Act 1990.

      3  The Commission:

      (a)  shall not grant a licence to any person unless they are satisfied that he is a fit and proper person to hold it; and

      (b)  shall do all that they can to secure that, if they cease to be so satisfied in the case of any person holding a licence, that person does not remain the holder of a licence;

    B.  Programmes should be responsible but not exploitative. Clause 6 (1) of the Broadcasting Act 1990:

      6-(1)  The Commission shall do all that they can to secure that every licensed service complies with the following requirements, namely:

      (a)  that nothing is included in its programmes which offends against good taste and decency or is likely to encourage or incite to crime or to lead to disorder or to be offensive to public feeling;

      (d)  that due responsibility is exercised with respect to the content of any of its programmes which are religious programmes, and that in particular any such programmes do not involve:

        (i)  any improper exploitation of any susceptibilities of those watching the programmes, or

        (ii)  any abusive treatment of religious views and beliefs of those belonging to a particular religion or religious denomination;

    C.  Licensed services shall comply with regulatory codes/safeguards. Clause 6 (3) of the Broadcasting Act 1990.

      6-(3)  The Commission shall:

      (a)  draw up, and from time to time review a code giving guidance as to the rules to be observed . . . in relation to licensed services; and

      (b)  do all that they can to secure that the provisions of the code are observed in the provision of licensed services.

  We are asking the Committee to suggest that the Regulatory Authorities go back to the following Religious Codes (taken from the 1998 Radio Authority Programme Codes) which were originally agreed with Christian Broadcasting Industry, Church and Parliamentary representatives:

6.1  General

  The Broadcasting Act 1990 (Section 90 (2)(c)) requires the Authority to do all that it can to ensure "that due responsibility is exercised with respect to the content of any of its programmes which are religious programmes, and that in particular any such programmes do not involve:

    (i)  any improper exploitation of any susceptibilities of those listening to the programmes; or

    (ii)  any abusive treatment of the religious views and beliefs of those belonging to a particular religion or religious denomination.

  Religious belief and practice are central to many people's lives and capable of evoking strong passions and emotions. The content of programmes, which deal with religious matters or beliefs, requires particular care. Much of the following guidance is therefore designed to safeguard both listeners and their beliefs from abuse, exploitation or charlatanism.

6.2  Identity

  The identity of religious bodies featured in religious programmes must be made clear to listeners. Radio stations with a particular religious stance, whether or not this is stated in the Promise of Performance, must make this clear to listeners.

6.3  Accuracy

  The belief and practice of religious groups must not be misrepresented, and programmes about religion must be accurate and fair.

6.4  Content

  In general, religious programming will reflect and may proclaim worship, thought and actions of the mainstream religious traditions in the United Kingdom. Religious programming broadcast to a particular geographic area must be sensitive to the religious make-up of the area served.

  Religious traditions in the United Kingdom are mainly Christian and most mainstream output, which carries religious material, is likely to reflect this fact. However, programming and stations aimed at different religious and/or particular communities will reflect their religious traditions as appropriate.

6.5  Unacceptable Religious Programme Providers

  Licence Holders must not broadcast religious programmes produced and provided by bodies or persons who practice or advocate illegal behaviour or whose rites or other forms of collective observance are not normally directly accessible to the general public.

6.6  Recruitment

  Religious programmes broadcast by Licence Holders may quite properly be used to propound and propagate religious belief. However, neither the programmes themselves nor any follow-up material may be used to recruit members for any religious faith or denomination in a way contrary to the requirements of Section 90 (2)(c)(i) of the Broadcasting Act 1990, which requires that religious programmes may not involve "any improper exploitation of any susceptibilities of those listening to the programmes".

6.7  Religious Abuse

  Licence Holders must exercise care to ensure that the religious views and beliefs of those belonging to a particular religion or religious denomination are not abused. Theological debate and disagreement may occur within religious programmes; however, programmes and/or follow-up material must not be used to denigrate or attack the beliefs of other people.

  Britain contains communities with different faiths and cultures, each with its own particular religious sensitivities. All broadcasters must make themselves aware of these sensitivities lest they give unintentional offence to these communities. Additionally, many people find that the use of, for example, "God", "Jesus Christ" or "Christ" as expletives is especially offensive and these should only be used where there is proper dramatic justification.

6.8  Appeals and Donations

  Programmes may include appeals. Religious programmes making appeals must take full account of the requirements of (the appeals for donations) Section of this Code and Section 90 (2)(c)(i) of the Broadcasting Act 1990, (see above).

6.9  Susceptible Listeners

  While it is quite proper for a religious body or its members to extol the virtues and assets of subscribing to a particular religious belief or view of life, religious programmes must not seek to persuade or influence listeners by preying on their fears, nor by any other means engage in improper exploitation of susceptibilities of listeners.

6.10  Claims Incapable of Substantiation

  Except in the context of a legitimate investigation, religious programmes may not contain claims, by or about living people or groups, suggesting that he, she or they have special powers or abilities, which are incapable of being substantiated.

ADDITIONAL SUGGESTION

  Please will the Committee consider amending the Draft Bill to set up a permanent Parliamentary Watchdog Committee and/or Communications Ombudsman to regulate the activities of the regulator OFCOM.

June 2002

A.  KEY POINTS

OFCOM

  1.  Sky supports the Government's proposals to rely on competition law whenever possible in preference to sector specific regulation, and to place OFCOM under a duty to be a light touch regulator.

  2.  It is essential that OFCOM apply competition law in a transparent and accountable way and that, subject to due process, all decisions are reached within commercially acceptable timescales.

Spectrum

  3.  The Government needs to publish its response to the Independent Review of Radio Spectrum Management (the Cave Review) quickly so that the industry has sufficient time to comment on its proposals.

  4.  The provisional proposals allow for the implementation in full of the recommendations of the Cave Review. They do not address a clearly identified problem and are unworkable.

Must Carry/Must Offer

  5.  Digital satellite is an open platform, in contrast to cable. Broadcasters can obtain capacity from a relevant satellite operator (SES or Eutelsat) and retail or otherwise provide their own channels independently of Sky's pay TV packages. This is achieved through access being made available to the EPG and, where appropriate, through the provision of conditional access services (encryption, entitlement and regionalisation). Sky is required to provide EPG and conditional access services on a fair, reasonable and non-discriminatory basis.

  6.  The Director General of Telecommunications recently concluded: "Public service broadcasters should pay a commercially negotiated rate for conditional access services. . . This is the basis on which they would expect to pay for any other service which they need to purchase, including regulated services. . . Regardless of [any future `must offer'] requirement, conditional access providers will not be able to charge above levels that are fair, reasonable or non-discriminatory."

Media Ownership

  7.  Cross media ownership rules should be abolished in their entirety. Competition law (including merger control rules)—coupled with impartiality requirements—is sufficient to ensure plurality and diversity in the media.

Public Service Broadcasting (PSB)

  8.  Government policy must be based on a clear analysis and understanding of the role, purpose and scope of PSB in the wider communications landscape. Such an analysis has yet to take place and cannot wait until digital switchover.

  9.  OFCOM should be given overall responsibility for the approval of any proposed new BBC services and for the scrutiny of the new BBC channels that have already been approved. Approvals and reviews should be considered within the context of a more rigorously defined public service role and remit, and with a specific obligation to ensure that such services do not duplicate—or foreclose entry by—commercial services.

B.  BACKGROUND ON SKY

  10.  Thirteen years ago BSkyB pioneered direct to home (DTH) satellite broadcasting in the UK and Ireland. At significant risk and expense, the company initially launched four new channels including Europe's first indigenous 24-hour news channel, Sky News, thereby increasing competition in television services and creating a new broadcasting platform.

  11.  Other broadcasters soon followed BSkyB's lead by leasing transponders and accessing the base of DTH set top boxes. By the mid-1990s, more than 40 channels were available to UK and Irish viewers on the analogue satellite platform.

  12.  In 1998 BSkyB launched its digital service in the UK and Ireland. Three years later it migrated fully from analogue to digital technology and switched off its analogue signals.

  13.  To date, the company has invested more than £2 billion in digital television. As at 31 March 2002, more than 5.88 million satellite homes in the UK and Ireland subscribed to Sky Digital. Digital satellite viewers can choose from more than 300 channels from many different broadcasters, including BBC, ITV, Channel 4, Discovery Networks Europe, National Geographic, History Channel and Artsworld. There are scores of free to air television channels—and a wide range of radio services—on the digital satellite platform.

  14.  Digital satellite is an open platform, in contrast to cable. Broadcasters can obtain capacity from a relevant satellite operator (SES or Eutelsat) and retail or otherwise provide their own channels independently of Sky's pay TV packages. This is achieved through access being made available to the EPG and, where appropriate, through the provision of conditional access services (encryption, entitlement and regionalisation). The relevant BSkyB companies are required to provide these services on a fair, reasonable and non-discriminatory basis. Sky has entered over 180 agreements with third parties for these regulated services.

  15.  Sky has pioneered the development of interactive television in the UK. Viewers can use email, shop on screen, play games and place bets. Sky Sports Active enables viewers to change camera angles, access match statistics and watch match highlights. Sky News Active gives viewers an alternative news service comprising a choice of news feeds and summaries.

  16.  Sky's DTH broadcasting services are licensed and regulated by the Independent Television Commission ("ITC") pursuant to the UK Broadcasting Act 1990 as amended and supplemented by the Broadcasting Act 1996.

  17.  Sky is also regulated by the Office of Telecommunications ("Oftel") pursuant to two class licences under the UK Telecommunications Act 1984 in relation to conditional access and access control services for digital transmissions.

  18.  In addition, Sky is subject to the EU competition law regime and to individual national regimes in the countries in which it operates.

C.  ISSUES

OFCOM

  19.  Given that the Government proposes to move away from sector specific regulation, Sky supports the fact that OFCOM will have concurrent powers with the OFT to exercise the competition powers of the Competition Act 1998 in relation to the communications sector.

  20.  It will be important, however, that OFCOM exercises its competition powers in a transparent and accountable way, adhering to the principles of the Better Regulation Task Force (as set out in section 3(2)(a) of the draft Bill). Sky is concerned that these principles have not been given sufficient prominence in this draft of the Bill: OFCOM is not under a duty to apply these principles, rather it only needs to "have regard" to them, as they have been introduced into the draft Bill in section 3(2)(a), as opposed to under the duties in section 3(1).

  21.  While interested parties must be given sufficient opportunity to defend themselves against any allegations of infringement of competition law or regulation, decisions should be reached within a commercially acceptable timescale.

  22.  This has not always been the case to date. For example:

    —  it is nearly two and a half years since the OFT first announced that it would review its regulation of Sky's position in wholesale pay TV, but it still has not reached any final conclusions; and

    —  in September 2000, Sky and NTL signed a distribution agreement, subject to approval of the DGFT, which was notified to the OFT in October 2000 for a decision under Chapter I of the Competition Act 1998. Seventeen months later, in February 2002, the OFT informed Sky and NTL that it was closing the file on its investigation, without reaching a decision on the agreement. This meant that the agreement could not be implemented.

  23.  Delays and outcomes of this kind are enormously disruptive and undermine businesses' ability to operate. The Competition Act 1998 already contains powers in paragraphs 7 of Schedules 5 and 6 for companies to seek directions from the courts to ensure that the DGFT reaches decisions without "undue delay". Yet these provisions have not been brought into force.

  24.  Sky notes the provisions of section 3(5) of the draft Bill concerning the resolution of any conflict between OFCOM's duties. Sky believes that OFCOM should provide reasoned decisions in such cases, in accordance with the accountability and transparency principles currently brought into the draft Bill under section 3(2)(a).

SPECTRUM

  25.  Sky understands that the proposals relating to spectrum management, including those for Recognised Spectrum Access (RSAs), are provisional and the broadest necessary to implement in full the recommendations of the Independent Review of Radio Spectrum Management (the Cave Review). Consequently the proposals are likely to be amended in the light of Government's response to the consultation on the Cave Review and responses to a proposed Radiocommunications Agency's consultation on how RSAs might be applied to satellite services in practice. Sky notes that the Government's response to the Cave Review and the additional Radiocommunications Agency consultation have not yet been published.

  26.  In Sky's view, the proposal to develop a licensing system (RSAs) for broadcasting to the UK via satellite which would allow for the introduction of charges where such satellite broadcasting shares spectrum with, and constrains the deployment of, UK-based terrestrial services is not aimed at clearly identified problems and is disproportionate. Sky is not aware of any evidence of terrestrial fixed links not being exploited because of potential interference with satellite downlinks: a significant number of terrestrial fixed links have been deployed across the UK.

  27.  The draft Bill includes proposals for RSAs, eg auctioning, which, on the face of it, are unworkable. However, in the absence of the Radiocommunications Agency's additional consultation, further comment would be premature.

Must Carry/Must Offer

  28.  The Government proposes—but has yet to make available—additional draft clauses in the Bill empowering OFCOM to impose certain obligations, if they appear necessary to achieve the universal availability, free at the point of reception, of public service channels on satellite after switchover.

  29.  Such provisions are unnecessary. Digital satellite is an open platform, in contrast to cable. Broadcasters—including the public service channels—can obtain capacity from a relevant satellite operator (SES or Eutelsat) and retail or otherwise provide their own channels independently of Sky's pay TV packages. This is achieved through access being made available to the EPG and, where requested, through the provision of conditional access services (encryption, entitlement and regionalisation). Sky is required to offer EPG and conditional access services on a fair, reasonable and non-discriminatory basis.

  30.  Public service broadcasters have argued that:

    —  existing obligations guaranteeing them fair, reasonable and non-discriminatory access to conditional access services (CA) services are inadequate; and

    —  proposals for a "must offer" obligation on public service broadcasters should be matched with a "must carry" provision on both cable and satellite operators in order to balance up the weight at the negotiating table.

  31.  However, these arguments have already been addressed by Oftel, the UK's conditional access regulator. Following a detailed public consultation on The Pricing of Conditional Access Services and Related Issues, the Director General of Telecommunications recently concluded that:

    "Oftel does not accept the validity of arguments. . . that public service broadcasters might be permitted, or required, to receive conditional access services at below the long-run incremental cost or even free of charge. Public service broadcasters should expect to make a reasonable contribution to the costs of provision of conditional access services which are common to all purchasers of those services as they would expect to do for all other services they purchase." (paragraph s.11)

    "public service broadcasters are not `subsidising' non public service broadcasters by paying for conditional access but are purchasing a service from a platform provider as they would any other service in order to broadcast.". . . (A.25 in Annex)

  32.  Proposals for a "must offer" obligation on public service broadcasters—to ensure that they are provided to consumers on relevant digital platforms—do not alter this. As the Director General noted:

    "The BBC stated that the `must offer' requirement would restrict public service broadcasters' bargaining power, and this asymmetry needs to be recognised. Oftel's view is that any such obligation does not add or subtract from the requirement already on conditional access service providers to provide fair, reasonable and non-discriminatory terms, but that it should be a factor to be taken into account in negotiations." (A.31 in Annex)

    "Regardless of [any future 'must offer'] requirement, conditional access providers will not be able to charge above levels that are fair, reasonable or non-discriminatory. All purchasers of conditional access, including public service broadcasters, are able to ask Oftel to enforce this requirement if they regard it as being breached. It would also be possible to make a complaint under the Competition Act 1998." (para 4.19)

  33.  Nor is there any rationale for extending existing cable "must carry" requirements to conditional access services. Firstly, the equivalent of the cable network is the satellite, which is operated under the auspices of the government of Luxembourg and which is owned by SES. Secondly, the "must carry" obligations were imposed on cable because of specific characteristics of cable platforms:

    —  cable operators have closed platforms, unlike digital satellite. Thus, cable operators can refuse to carry non-"must carry" channels, whereas all channels, whether "must carry" or not, have guaranteed access to conditional access services on satellite;

    —  cable operators retail "must carry" public service channels as part of their basic packages. Even the lowest cable access tier with BBC, ITV, Channel 4 and Channel 5 requires a monthly fee, whereas these services are not part of any Sky subscription package, and are offered entirely free to air on satellite;

    —  cable operators were initially granted exclusive rights to provide services in their franchise areas and were subject to capacity constraints in their analogue systems. The must carry obligations were imposed on cable operators for their special privileges.

  34.  However, cable operators no longer hold exclusive rights to their franchise areas and are not capacity restrained when offering digital systems, making it very unlikely that they would not carry the public service channels. It therefore may be appropriate for policy makers to consider a liberalisation of the traditional must carry rules. It is notable, for example, that cable operators' carriage of ITV1 in digital results in millions of pounds of "digital dividend" for the commercial companies that own ITV, but with no contribution to the billions of pounds of expenditure made by cable operators in digital cable networks.

Media Ownership

  35.  In the past, the choices of television services available to viewers were strictly limited by the scarcity of spectrum and by Government policy. Today, however, the introduction of new delivery technologies and the launch of digital television mean that there is sufficient capacity to support the entry of a large number of competing voices and sources of opinion, including thematic channels and services targeted at previously underserved audiences—eg services dedicated to news, documentaries, the arts, ethnic groups and parliamentary coverage.

  36.  The widespread deployment of digital technology has resulted in, and will continue to produce, an increasingly diverse and pluralistic media with reduced need for Government or regulatory intervention to protect these objectives.

  37.  The Government has set out several measures to deregulate media ownership in the draft Communications Bill—such as the removal of restrictions on foreign ownership. However, other changes are less far reaching. The 1996 Broadcasting Act prevents newspaper proprietors with a share of newspaper circulation greater than 20 per cent, or TV companies in which such a newspaper proprietor has more than a 20 per cent interest from owning more than 20 per cent of a terrestrial television licence. The Bill will amend that rule by allowing significant newspaper groups, or broadcasters in which such newspaper groups have more than a 20 per cent interest, to own Channel 5, but not ITV.

  38.  In Sky's view, the existing cross-media ownership rules should be abolished in their entirety since they are outdated, arbitrary and discriminatory. Issues of ownership and mergers are already subject to competition law and ex ante sector specific rules are unnecessary.

  39.  The UK competition regime is quite capable of addressing the issue of plurality. Competition policy is designed to protect the consumer and diffuse market power where this may have adverse consequences for the welfare of the consumer. In addition, under the reformed merger regime, reductions in plurality which lead to a substantial lessening of competition, can be prevented.

  40.  It is crucial to bear in mind also that content regulation supports plurality as well as diversity. In particular, all licensees are—and will continue to be—subject to stringent impartiality requirements, to be expanded upon in OFCOM's standards code, to ensure that programmes are free from bias. [11]

Public Service Broadcasting (PSB)

  41.  In its report on The Communications White Paper, the Culture, Media and Sport Committee identified "three general principles which should guide the future provision of public service broadcasting":[12]

    —  while the position of the "privileged broadcasters"—the BBC, ITV, Channel 4 and Channel 5—means that they will continue to produce considerable public service content, it does not follow that the output of these broadcasters can be equated with "public service broadcasting";

    —  the privileged position of these broadcasters brings with it very considerable costs, both in terms of the direct and indirect charges upon the public and in terms of the impact on the development of a competitive and dynamic market. These costs should be transparently identified and continuously assessed against other means of achieving the public service content desired; and

    —  the focus in future should be on ensuring the provision of public service content from whatever source is most appropriate, rather than on protecting the privileges of certain broadcasters for their own sake.

  42.  The Select Committee also concluded:

    "In the future, judgements about public service value will become separated from privileged access. With the end of spectrum scarcity, new forms of public service content will emerge. . . A more imaginative approach to the concept of public service broadcasting based on the three principles we have identified, together with the opportunities of technological change, provides a chance to tap that vein." [13]

  43.  However, the Communications White Paper affirmed the Government's commitment to maintaining the role of PSB in the digital age—and concluded that it may have "an even more important role than it has now"—without conducting any critical analysis of that role.

  44.  A clear analysis and understanding of the role, purpose and scope of public service broadcasting in the wider communications landscape is still needed, and cannot wait until digital switchover and the consultation on PSB that the White Paper proposed for that time. [14]

Regulating the BBC

  45.  In its most recent inquiry on Communications, the Culture, Media and Sport Committee noted that:

    "The balance of evidence submitted to us, including from the current regulators, was in favour of the BBC being regulated entirely by OFCOM. This was argued on the grounds that it made little sense for a significant part of the broadcasting market to be outside the purview of the broadcasting regulator." [15]

  46.  In line with the overwhelming majority of industry and consumer representations, Sky believes that the regulation of the BBC should be included within OFCOM's remit: it is a large player in the communications sector and its unique privileges make it a strong and effective competitor to commercial companies.

  47.  OFCOM should also be given overall responsibility for the approval of any proposed new BBC services and for the scrutiny of the new BBC channels that have already been approved. Approvals and reviews should be considered within the context of a more rigorously defined public service role and remit, and with a specific obligation to ensure that such services do not duplicate—or foreclose entry by similar—commercial services.

  48.  In respect of approved services, should any new BBC services fail to meet the original approvals criteria or commitments proposed, the continued existence of that service should come into question. This is particularly the case where a new BBC service is not highly valued by consumers and is having a detrimental effect on commercial operators. Without such accountability, the approval of a new BBC service will amount to a "carte blanche" for the BBC to pursue its ambitions in any relevant genre and any "review" of such services will amount to nothing more than a meaningless administrative exercise.

June 2002






11   See clause 213 of the draft Bill and paragraph 363 on page 72 of the Explanatory Notes t the draft Bill. Back

12   Culture, Media and Sport committee Second Report, The Communications White Paper, March 2001, Volume 1, pages xxx-xxxi. Back

13   Culture, Media and Sport Committee Second Report, The Communications White Paper, March 2001, Volume 1, page xxxi. Back

14   In section 8.4.4 of the Communications White Paper. Back

15   Culture, Media and Sport Committee Fourth Report of Session 2001-02, Communications, May 2002, page 19. Back


 
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