Joint Committee on The Draft Communications Bill Minutes of Evidence

Memorandum submitted by VLV (Voice of the Listener and Viewer)


  1.  The Draft Communications Bill provides the UK's regulatory framework for the emerging information society. Crucially, it establishes the rights of the nation's citizens to access information and ideas, construed in their widest sense. It will shape their awareness of, and their ability to participate in, the democratic process; it will inform them and enable them to understand the significant changes that are taking place in British society; and it will afford them access to, and the ability to take pleasure in, both the nation's cultural heritage and its contemporary expressions of art and emotion. Given the democratic, social and cultural importance of public service broadcasting, as the Amsterdam Protocol to the Treaty of Rome describes it, VLV's comments and observations are largely confined to the Draft Bill's regulatory framework for public service broadcasting, but also refer to the proposed Content Board.

  1.1  VLV is disturbed that the Draft Bill uses several terms to describe members of the public. We, the British people, are variously described as "customers" (ss. 3(7) and 257), "persons" (ss. 3(2)(d), 16 and 97(4)), citizens of the European Union (s. 4(5)) and "members of the public" (ss. 12(1)(a) and (b) and 109(9)). Moreover, OFCOM's duties appear to take no account of the democratic, social and cultural interests of UK citizens. VLV therefore suggests that s. 3(1)(a) of the Draft Bill should read: to further the democratic, social and cultural interests of UK citizens and the persons who are customers for the services and facilities in relation to which OFCOM has functions.


  2.  Programmes matter. . . to everyone. This is why people watch television and listen to the radio. Programmes afford freedom of expression to every citizen by providing them with access to information and ideas.

  2.1  As the 1994 Ministerial Resolution of the Council of Europe on Public Service Broadcasting (to which the UK is a signatory) observes, public service broadcasters provide, "through their programming, a reference-point for all members of the public and a factor for social cohesion and integration of all individuals, groups and communities."

  2.2  Moreover, because of the democratic, social and cultural contributions that public service broadcasting makes to civic life, the Treaty of Rome allows public service broadcasters to benefit from state aid. As the Commission of the European Communities observed last year in the Official Journal of the European Communities, broadcasting represents "for a not inconsiderable proportion of the population, the main source of information. It thus enriches public debate and ultimately ensures that all citizens participate to a fair degree in public life." [Communication from the Commission on the Application of State Aid Rules to Public Service Broadcasting, C 320, 15 November 2001, 5-11, para. 8.]

  2.3  Today, public service broadcasting not only informs, educates and entertains Britain's citizens, it also establishes connections with them. Although a good programme may fulfil all four functions simultaneously, it is nevertheless valuable to classify public service programmes according to their civic functions, as they are spelt out in the Council of Europe's Ministerial Resolution on Public Service Broadcasting.

(a)   The Democratic Role of Public Service Broadcasting

  2(a).1  The Ministerial Resolution on Public Service Broadcasting requires public service broadcasters to: broadcast impartial and independent news, information and comment.

  2(a).2  VLV therefore welcomes the Government's intention to regulate the provision of news programmes and current affairs programmes by public service broadcasters (Draft Bill, s.191). VLV is concerned to note, however, that the Bill does not propose to require news and current affairs programmes to be independent of Government. VLV believes that independence is especially important to ensure, first, that listeners and viewers continue to consider television news particularly trustworthy and, secondly, that news programmes and current affairs programmes together provide a platform for informed debate, allowing viewers to make informed decisions as citizens. VLV considers that a requirement for independence of Government in the provision of these programmes should be included in the Bill.

  2(a).3  The Ministerial Resolution on Public Service Broadcasting also requires public service broadcasters to: provide a forum for public discussion in which as broad a spectrum as possible of views and opinions can be expressed.' The Government's proposals take no account of this specific mission for public service broadcasters. To some degree, the regulatory arrangements would be improved if public service broadcasting news and current affairs programmes were required to be independent of Government, as proposed above. But, even so, UK viewers are not guaranteed access to the broadest possible spectrum of information and ideas. VLV submits that the Communications Bill should specifically require public service broadcasters to include this responsibility as part of the diversity to which they are to be committed in their national and regional programmes.

(b)   The Social Role of Public Service Broadcasting

  2(b).1  The Ministerial Resolution on Public Service Broadcasting requires public broadcasters to "reject any cultural, sexual, religious or racial discrimination and any form of social segregation." It also requires them to: "develop and structure programme schedules and services of interest to a wide public while being attentive to the needs of minority groups."

  2(b).2  VLV considers that these requirements are potentially covered by ss. 181(3)(a)and (b) and s.181(5)(f) of the Draft Communications Bill. On the other hand, the text of the Draft Bill is very slippery in its definition of a public service broadcaster. S.181((3) outlines general requirements for public service television broadcasting, which only have to be "taken together", presumably across several services which include the BBC. The UK will therefore move from a public broadcasting system which offers viewers a choice of several public service broadcasting channels to one that only offers viewers a single public broadcasting system. This reduction to a single system of public service broadcasting presumably implies a reduction in the overall volume of public service broadcasting programmes. For instance, the new formulation would appear to imply that the needs of the religious could be reduced to a single religious programme broadcast on Sundays. Furthermore, OFCOM is only required to "have regard to the desirability of" fulfilling the eight detailed requirements outlined in s. 181 (5), each of which again have to be "taken together" across all the public service broadcasters. This seems to imply that OFCOM will have virtually no power to require a commercially-financed public service broadcaster to broadcast a genre of programme which is being broadcast elsewhere, for instance by the BBC.

  2(b).3  Although VLV recognises that this single public broadcasting system could theoretically be better and richer than the sum of those services offered by the public service channels which are currently available, we submit that, given the drive for increased competition between broadcasters for the lucrative middle ground, this approach is likely to narrow, rather than broaden, the overall range and diversity of programmes available to viewers. Indeed, unbridled competition for advertising revenues is the enemy of programme innovation and diversity. Disturbingly, the new formulation of public service broadcasting implicitly appears to recognise that an increase in channel choice may well lead to a reduction in programme choice.

  2(b).4  VLV is also concerned that the Secretary of State retains powers under s. 188 of the Draft Bill to modify the public service remit for any licensed public service channel, the public teletext service, or indeed for any of the provisions specified under subsections (3), (4) and (5) of s. 181. The consultation arrangements for any such proposed change, as spelt out in s.188, are restricted to a very narrow group of people, consisting of OFCOM, the Secretary of State, such public service broadcasters as OFCOM or the Secretary of State considers likely to be affected (or if relevant, the public teletext provider) and finally both Houses of Parliament. Thus, paradoxically, it is proposed that any change in the provision of a public service may be agreed, without consulting either the public or any organisations representing the public's interest in broadcasting.

  2(b).5  The new approach to public service broadcasting enshrined in the Draft Bill also significantly weakens the manner in which the UK fulfils its current obligations to the Council of Europe, and to the European Union Although the Council of Europe's Ministerial Resolution on Public Service Broadcasting only requires each signatory state to provide a single radio and a single television public broadcasting channel, there is no provision in the Resolution for the public service broadcasters' mission to be fulfilled by several organisations (taken together) across a series of channels. It would appear unavoidable, if an effective public service broadcasting operation is to be sustained, that OFCOM will be drawn into issues of scheduling on all the services involved.

  2(b).6  Furthermore, although the European Commission has agreed, since the Amsterdam summit, that the precise definition of public service broadcasting is a subsidiarity issue which can be defined by a Member State within very broadly defined parameters, nevertheless, the Commission does require that if a public service broadcaster is to benefit from state aid, in whatever form that aid is granted, such aid "must not affect trading conditions and competition in the [European] Community to an extent which would be contrary to the common interest, while the realisation of the remit of that public service shall be taken into account."

  2(b).7  VLV therefore considers that there are two further difficulties with the Government's proposed approach. The first is that nowhere, in the draft legislation, is there a requirement for any single public service broadcaster, not even the BBC, to fulfil the undertaking given by the UK to the Council of Europe. The second arises from the proposal to allow both OFCOM and the Secretary of State almost total flexibility to redefine the programming obligations of each public service broadcaster a number of times. This proposal is at odds with the UK's obligations under the Treaty of Rome not to award state aid to a public service broadcaster in a way which distorts trading conditions in a manner contrary to the common interest.

  2(b).8  VLV submits that the following would be a better approach to regulate programme content. The Government should set down a minimum number of duties which have to be undertaken and fulfilled by every broadcaster designated as a public service broadcaster and may be said to benefit from any form of state aid. These would include all of the aims specified in the Ministerial Resolution of the Council of Europe. The responsibility to fulfil all these duties would also justify any state aid received by an individual public service broadcaster, whatever its form. In addition, individual public service broadcasters could agree with OFCOM to make further regular annual commitments against a set of additional public service targets, which (if taken together) would improve their annual performance and thus extend the range and diversity and improve the quality of programmes available to listeners and viewers. Amendments to ss.180-198 of the Draft Bill would be necessary.

  2(b).9  The Ministerial Resolution on Public Service Broadcasting requires public service broadcasters to "reflect the different philosophical ideas and religious beliefs in society, with the aim of strengthening mutual understanding and tolerance and promoting community relations in pluriethnic and multicultural societies."

  VLV is concerned that the emphasis in the Ministerial Resolution on strengthening mutual understanding and tolerance and promoting community relations, is not really caught by the formulation in ss. 181(5) (e) and (g) of the Draft Communications Bill, which merely talk about "dealing with" and "reflecting the lives and concerns of" different sections of society. In VLV's opinion, an appropriate amendment should be made to this effect.


  2(c).1  The Ministerial Resolution on Public Service Broadcasting requires public service broadcasters "to contribute actively through their programming to a greater appreciation and dissemination of the diversity of national and European cultural heritage."

  VLV is concerned that s. 181(5)(b) of the Draft Communications Bill refers only to "cultural activity in the United Kingdom" and omits any reference to the cultural heritage of either the UK or other areas of Europe. VLV therefore suggests that an appropriate amendment should be made to it.

  2(c).2  The Ministerial Resolution on Public Service Broadcasting also requires public service broadcasters to "ensure that the programmes offered contain a significant proportion of original productions, especially feature films, drama and other creative works, and to have regard to the need to use independent producers and co-operate with the cinema sector."

  VLV notes that the formulation in s. 181(5)(b), that "cultural activity in the United Kingdom. . . [is] reflected, supported and stimulated by the representation in those services (taken together) of drama, comedy and music and by the treatment of other visual and performing arts", makes no reference to the requirement in the Council of Europe resolution that "the programmes contain a significant proportion of original productions." The obligations to reflect, support and stimulate cultural activity could be interpreted by the proposed OFCOM Content Board merely to refer to documentary programmes about drama, comedy or musical activity in the UK, or to the potential publicity value of a well-timed broadcast about a private sector activity.

  2(c).3  Although the formulation in s. 190 of the Draft Communications Bill requiring the proposed OFCOM Content Board to require every licensed public service channel to broadcast an appropriate proportion of original productions, it avoids any specific reference to the genres to be represented. While the absence of specificity may allow the Content Board almost total flexibility in taking its decisions, its absence will not reassure audiences in the UK about the future under OFCOM of original feature films, drama productions, children's programmes or other creative works. Moreover, it signifies both a failure to observe the letter of the undertakings that the UK gave to the Council of Europe and a potential lack of regard for the continuing ability of the creative community in Britain to contribute to the cultural fabric of viewers' everyday lives. VLV suggests that amendments are needed to ss.181(5)(b) and 190 to impose on public service broadcasters the full weight of the Ministerial Resolution.


  3.  Channels Matter. . . because they offer listeners and viewers a choice of broadcasting services. Although free market competition can increase viewer choice, it can also reduce diversity, especially in broadcasting where there is a strong inherent tendency to monopoly. For this reason, ever since the mid-1950s, viewers have enjoyed regulated competition between public service broadcasters. The main aspects of regulation concerned the range and diversity of programmes transmitted by the broadcasters (discussed above) and the lack of competition for sources of finance.

  3.1  In general, the BBC continues to enjoy a guaranteed source of finance for its programmes and, like VLV itself, most viewers and listeners will be pleased by the Culture Secretary's indication that this is likely to be prolonged well into the new century. A MORI poll, conducted in 199 for the Davies Report on The Future Funding of the BBC, found that over 70 per cent of licence payers were satisfied or better with the BBC; and that over two thirds of GCSE students used the BBC website. (Davies Report, Chairman's foreword, pp. 18-19)

  3.2  The financial future for commercially-funded public service broadcasters is less rosy. The nation's advertising expenditure is currently in decline and the competition for revenues from advertising and programme sponsorship, combined with increases in shareholder dividends, has narrowed programme choice for viewers and listeners. In 1999, viewers considered that in only three out of 14 programme genres—soap operas, daytime chat shows and game shows—were the commercially funded public service broadcasters outperforming the BBC. (Davies Report, ibid.)

  3.3  If listeners and viewers are to continue to benefit from regulated competition in the field of public service broadcasting, OFCOM will need to ensure that commercially-financed public service broadcasters invest an increased proportion of their revenues in a number of specific programme genres. Regrettably, the Government's proposes to allow the commercially funded public service broadcasters to move towards self-regulation and co-regulation despite the low regard in which many viewers (although presumably not the advertisers) hold their programmes. VLV would like to see OFCOM exercising strengthened powers to require commercially- funded public service broadcasters to invest in a wide range of programme genres including indigenous children's programmes.

  3.4  As noted above, VLV also considers that every public service broadcaster as defined in s.181(10) of the Draft Communications Bill, should be required to meet a minimum set of programming standards, which would also entitle the broadcaster to benefit from any state aid, as authorised under the Treaty of Rome as amended at Amsterdam.


  4.  Delivery matters to the public, because the basic rationale for public service broadcasting is to enable listeners and viewers to receive information and ideas, as provided for by the European Convention on Human Rights and the UK's Human Rights Act. Access of this kind is a fundamental necessity if democracy and active citizenship are to survive in the information society.

  4.1  Although it is the "public service broadcasters" which schedule, purchase and produce the programmes to inform, educate and entertain the public, in fact the programmes are transmitted to viewers by separate companies, described in s. 22 of the Draft Bill as "providers of electronic communications networks and services". It is these private companies that provide the communications infrastructure on which broadcasters distribute their programmes to the public. Thus a valid television licence only entitles the viewer to receive the signals delivered by a provider of an electronic communications service on behalf of authorised public service broadcasters. Not only does an individual licence payer have no legal right to receive a television signal, but the line of legal responsibility for the delivery of a broadcast signal has now been divided between two, or on some occasions three, separate companies.

  4.2  It is also essential for listeners and viewers to receive public service programmes at a place which is convenient for them. Holders of a current television licence resident in the UK are licensed to install and use a television set: in the premises in which they are resident; or in a vehicle, boat or caravan in which they are touring from place to place, provided that they are not using television at the same time in the premises for which they are licensed, or in any other caravan. In addition, people may also watch television in premises in which they are working or visiting, for which others already have a valid licence. VLV considers that in future, listeners and viewers should have the right to receive public service broadcasts in their own homes and in any vehicle, boat or caravan in which they are touring. They should also continue to be able watch television in premises on which they are working or visiting for which others already have a valid licence.

  4.3  VLV also notes that:

    (i)  ss. 151(3)(a) and 153(3)(a) of the Draft Bill provide for the current licences to Channels 3, 4 and 5 to be replaced with licences which envisage their services being broadcast in digital form; (ii) s.151(3)(b) of the Draft Bill provides that the services for Channel 3 and 5 shall appear to OFCOM to be services which are equivalent in all material respects to the existing analogue services; while s.153(3)(b) provides that the whole or part of the Channel 4 service will continue to be provided in analogue form, until it is available in digital form.

  Arrangements for BBC services appear to fall outside the provisions of the Draft Bill.

  4.4  As ss.22 and 50-53 of the Draft Communications Bill establish regulations for electronic communication networks and the obligations to be secured by universal service conditions. There are however, two fundamental problems with the manner in which the issues related to the delivery of broadcast signals have been formulated in the Draft Bill. They are:

    (i)  There is no recognition in ss. 151 and 153 that the electro-magnetic characteristics of digital broadcasts are markedly different—and in some respects (notably signal break-up) inferior—to those of analogue broadcasts; and

    (ii)  The terms in which ss. 50-53 of the Draft Bill are phrased provide no clear definition of what is meant by the term 'universal service' in relation to broadcasting, although s. 52(8) does allow OFCOM to impose 'performance targets' on designated universal service providers.

  4.5  VLV is concerned, however, that there is no guarantee that listeners and viewers will continue to be able to receive public service broadcasts free at the point of use via their television aerial. VLV shares the opinion of the DCMS Viewers Panel that in future, a valid television licence should guarantee access to free-to-air digital television services on all equipment. [Digital Decisions: Viewer Choice and Digital Television (Department of Culture, Media and Sport, December 2001), para. 5.2.1]

  4.6  VLV notes that s. 3.3 of the Government's White Paper, A new future for communications (CM5010), promised that the Government remained committed to ensuring that public service television channels would be available to everyone, as now, free at the point of consumption, both before and after the switchover to digital television. According to s. 3.3.1 of the White Paper, this commitment would be delivered via the BBC's Charter and Agreement, by maintaining similar requirements on Channel 4 and continuing to give the regulator [ie OFCOM] powers to impose transmission obligations on ITV and Channel 5. The second part of this undertaking appears to have disappeared from the Draft Communications Bill.

  4.7  VLV also notes in this respect that art. 32 of the Universal Service Directive of the European Parliament and the European Council (Directive 2002/22/EC of 7 March 2002) allows Member States to make additional services, apart from the basic telecommunications services as defined in chapter II of the Universal Service Directive, universally available in its own territory. In order to allow OFCOM to require a public service broadcaster to provide a universal service to viewers, VLV therefore considers that s. 51(2) of the Draft Bill should be amended to read: "Subject to subsection (3), those regulations shall not authorise the designation of a person, other than a communications provider or a public service broadcaster as defined in s. 181(10) (below).

  4.8  In order to ensure that sufficient radio frequency spectrum is made available to public service broadcasters to enable them to broadcast universal television multiplex services by terrestrial transmission, VLV suggests that s. 113(2) of the Draft Bill should be amended to read: "It shall be the duty of OFCOM in the carrying out of those functions to pay due regard to the important democratic, social and cultural functions of public service broadcasters when exercising their powers for this purpose, before conferring an entitlement falling within subsection (3) on every provider of a qualifying service."

  4.9  Finally, article 34(1) of the EU's Universal Service Directive requires Member States to ensure that transparent, simple and inexpensive out-of-court procedures are available for dealing with unresolved disputes relating to consumers or other end- users, in regard to issues covered by the Directive. The Directive also requires Member States to adopt measures to ensure that such procedures enable disputes to be settled fairly and promptly and may, where warranted, adopt a system of reimbursement and compensation. VLV therefore suggests that clause 39(2)(a) of the Draft Bill should be amended to read: "the handling of complaints made to public communication providers by any of their domestic or small business customers, or to public service broadcasters [as defined in s. 181(10)] by holders of a valid television licence {as defined in ss.240 and 241]."


  5.  Access matters. . . because the advent of digital broadcasting will allow providers of electronic communication services to transmit enhanced broadcasting and other services to listeners and viewers. In order to access them and to find out what programmes are available, a viewer will need to use an electronic programme guide (EPG). The EPG will therefore become the electronic gateway that will regulate a viewer's access to the new channels. For the ordinary viewer however, it is the public service broadcasting channels which should be (to use the description of the Council of Europe's Ministerial Resolution) "the reference point for all members of the public".

  5.1  VLV notes that article 6 of the Access Directive of the European Parliament and the European Council (Directive 2002/19/EC of 7 March 2002) requires Member States to ensure that a detailed set of conditions—which are spelt out in Annex 1 of the Directive—shall apply in relation to conditional access to digital television and radio services broadcast to viewers and listeners in the Community; and that article 5(1)(b) of the Directive allows those conditions to be extended to application program interfaces (APIs) and electronic programme guides (EPGs).

  5.2  VLV also notes that article 24 of the Universal Service Directive of the European Parliament and the European Council (Directive 2002/22/EC of 7 March 2002) require Member States to ensure interoperability of the consumer digital television equipment referred to in Annex VI of the directive. VLV therefore welcomes s. 4(8)(a) of the Draft Bill which imposes a duty on OFCOM to facilitate service interoperability and s. 209 of the Draft Bill which gives OFCOM powers to insist that electronic programme guides give such degree of prominence as it considers appropriate to the programmes and services of all public service broadcasters.

  5.3  The advent of digital broadcasting also permits the development of two-way interactive services. Indeed, public service broadcasters are some of the leading organisations in the development of these new services. The Council of Europe's Ministerial Resolution requires Member States to allow their public service broadcasters access to new technologies; and the Commission of the European Communities has specifically recognised that Member States may use state aids to allow their public service broadcasters to establish interactive web- sites.

  5.4  Although nearly all interactive services are currently delivered by wire, rather than over the air, the balance could change in the future. Whatever the medium, the technology that is used to encrypt and decrypt digital signals will be crucial in determining how ordinary viewers may access the electronic pathways of the new information society.

  5.5  VLV notes that "in order to promote the free flow of information, media pluralism and cultural diversity", article 18 (1) of the Framework Directive of the European Parliament and the European Council (Directive 2002/21/EC of 7 March 2002) require Member States to encourage:

    (a)  providers of digital interactive television services for distribution to the public in the Community on digital interactive television platforms regardless of the transmission mode to use an open API (application program interface); and

    (b)  providers of all enhanced digital television equipment deployed for the reception of digital interactive television services on interactive digital television platforms to comply with an open API in accordance with the minimum requirements of the relevant standards or specifications.

  5.6  VLV is concerned that the Draft Communications Bill has not transposed this requirement into UK law. Moreover, VLV notes that, after 25 July 2004, the European Commission is empowered to take action to make these requirements compulsory in order to ensure interoperability and freedom of choice for users. VLV therefore submits that the Draft Bill should be amended to give OFCOM powers to encourage—or better to insist—that providers of digital interactive television services, and of enhanced digital television equipment deployed for the reception of digital interactive television, use an open API.


  6.  VLV understands why, as a division within OFCOM, it is proposed that the Content Board should be confined to an advisory role, but it is concerned that the central power of OFCOM should be vested in so few hands. With its deep concern for the quality and range of broadcasting in Britain, especially public service broadcasting, VLV can take scant comfort from the belief that the small size of the OFCOM board owes something to the model of the Federal Communications Commission. The Commission, for reasons to do with the business culture of the United States and the First Amendment, has had little to do with content issues and has done even less to promote public service broadcasting. It has created a climate in which litigiousness has flourished and in which the first resort of those who do not get their own way is often to resort to law. It may be noteworthy that a high proportion of the Commission are lawyers. Nor, in the United States, does the concept of the Public Interest as it is understood in the United Kingdom, generate much sympathy. It was, after all, a Chairman of the FCC who declared the public interest to be nothing more than that which interests the public. The British tradition has been very different and VLV submits that the protection of its best aspects should be a first charge on OFCOM.

  6.1.  VLV. is also disturbed by the changed approach which OFCOM will apply to public service broadcasting, construing it as a service to be fulfilled across several licensed public service channels. While understanding why the Government wishes to equalise the regulatory burden between the BBC and the other licensed public service providers, VLV questions whether a truly equitable situation can be reached when the BBC's objectives differ so fundamentally from those of its commercially funded competitors.

  6.2.  The spirit of the times puts great faith in measurement: hence the concentration in the Draft Bill on annual policy statements, self-monitoring, and triennial reviews. But traditionally the regulators' role, whether the Board of Governors in their protection of the public interest, or the ITA and its successors has been to create a climate in which creativity, invention and imagination can thrive. VLV considers it essential that the lay members of the Content Board, with a particular duty to the public, should be actively encouraged to maintain that tradition. VLV is concerned that there is no form of appeal, or for some public expression of differences, against the decisions of the OFCOM in programme-matters.

  6.3.  VLV hopes tha OFCOM, in its handling of complaints about programmes, continues the practice of consulting lay opinion in reaching its conclusions.


  7.  There are aspects of the Bill which VLV welcome, particularly it emphasis on media literacy, but it submits that the Draft Communication Bill is flawed in a number of key respects. We believe that the suggestions we have made above for changes will substantially improve it, thus enabling the new organisation to serve properly the interests of the British people.


  Voice of the Listener & Viewer (VLV) is an independent, non-profit-making association which represents the citizen and consumer interests in broadcasting. VLV is free from political, commercial or sectarian affiliations and funded by its members. VLV is concerned with the issues, funding, in particular with the principles of public service in broadcasting. VLV does not handle complaints.

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