Memorandum submitted by the Rt Hon Chris
I am writing to make a personal submission to
the Joint Committee, in relation to the provisions of the draft
Communications Bill, which you are currently considering. As you
will know, I was responsible as Secretary of Statejointly
with my colleagues at DTEfor the publication of the White
Paper in December 2000, and I note that the Draft Bill follows
broadly the themes and proposals of that White Paper. In particular,
the bringing-together of the disparate group of regulators in
the telecommunications and broadcasting fields under the umbrella
of OFCOM is very welcomeas a rationalising and modernising
measureand the development of an overall approach based
on lighter-touch regulation makes economic and philosophical sense.
There are, however, a number of points that
I believe merit further consideration, and it is these I would
like to concentrate on in this submission. In making them I would
of course draw the Committee's attention to the interests I have
declared in the Members' register, relating to Classic FM and
to the Walt Disney Company Ltd.
I hope that the Committee might consider the
1. Throughout the draft Bill reference is
made to "customers" receiving telecoms and broadcasting
services. This is surely infelicitous, and implies a purely commercial
relationship. Can the reference be, insisted, to "consumers"
or to "citizens"?
2. One of the great challenges of the next
few years is going to be the development of broadband communication
for households around the country. At present, although some 60
per cent of households are capable of receiving broadband, only
about three per cent actively choose to do so. The economic and
quality-of-life benefits that could be secured by far wider take-up
are considerable. Would it be possible, therefore, to craft an
additional duty for OFCOM, "to facilitate the availability
and promote the take-up of broadband communications technology"?
3. One of the inevitable consequences of
increasingly rapid and easy digital communication is the enhanced
danger of piracy of creative material, especially in movies and
music. The principal weapon against such piracy lies of course
in the various copyright protection agreements and statutesand
the early implementation of the European Copyright Directive should
help. But much can be done, also, by the use of digital technology
itselfto include watermarks or digital "signatures"
in creative materialin order to combat unauthorised use.
To be effective, such efforts have to be based on commonly agreed
standards, and I hope that you might consider giving OFCOM a power
to lead a process of securing agreement on such standards. A power
to co-regulate in order to secure common standards of protection
for copyright creative material could, I hope, be considered as
part of the functions of OFCOM.
4. The role of OFCOM in relation to the
BBC does, I believe, the need further discussion. I have noted
the role given to OFCOM under the first two tiers of regulation,
on matters such as regional programming, independent and original
productions, complaints, and news in peak time. I have noted also
the slight movement now made by the Secretary of State in changing
the BBC Agreement to include a requirement to consider OFCOM's
overview reports on public service broadcasting. I still believe,
however, that these provisions do not go far enough. I hope that
the Joint Committee would consider placing the back-stop power
to intervene in the event of a breach of the self-regulatory trust
under the third tier in the hands of OFCOM, rather than the Secretary
of State. The Board of Governors of the BBC would still be in
charge of the management of the organisation, and the detailed
implementation of its remit, in exactly the same way as now. The
back-stop power however, would shift from the Secretary of State
to OFCOM as an independent regulator; and I believe this would
be a change to the benefit of the BBC itself, the Secretary of
State, and the general public.
5. Under Clause 181 of the draft Bill, OFCOM
is required to prepare its overview report on the whole of public
service broadcasting every three years. A three-year gap is far
too long. Can this please be made a more regular duty?
6. The proposed provisions for restricting
radio ownership seem to be rather more strict than those pertaining
to any of the other branches of the media. Is this entirely fair?
I note that the formula adopeted is a "3 + 1" prescription.
Could a "2 + 1" alternative be considered?
7. Much of the section of the Bill dealing
with telephony follows closely the requirements of the telecoms
directives. There is one issue, however, which the directives
leave unsettle and therefore the Bill does too. Under the present
terms of the Bill, the provision of pay-per-view services across
the telephone wires counts as a one-to-one service, and is therefore
completely removed from licensing requirements. The formula used
to include other services under licensing requirementsthat
of the provision of "television-like" servicesdoes
not appear to apply to pay-per-view delivered by telephony. Is
there any way in which they can be brought within the definition
of "television-like" services?
8. Once it is established, OFCOM will become
an extremely powerful body. It is therefore important that it
is properly answerable to Parliament and the public for the decisions
it makes and the way it goes about making them. I would be sensible,
surely, to create a special joint sub-committee for Culture, Media
and Sport, and Trade and Industry, specifically to monitor the
work of OFCOM, to receive reports from it on recommended, by your