Joint Committee on The Draft Communications Bill Minutes of Evidence

Examination of Witnesses (Questions 800-805)



  800. What do you think the relationship should be between the BBC and OFCOM?
  (Professor Porter) VLV's view is that it should be kept separate from OFCOM. Obviously there are certain areas, such as minimum programme standards, that the BBC should continue to meet so that they are level across the sector, but in our view the BBC is differently financed and therefore it should have a different form of governance. We think it would be a mistake to bring everything under OFCOM because the way in which the BBC should be governed involves a number of questions which seem to us to be a lot more subtle and delicate than those with which OFCOM is charged. In particular, I think one of the areas of the BBC is actually developing areas of creativity and encouraging forms of promotion of cultural activity within Britain through the music field or audiovisual field or literary field and these are quite distinct from the sorts of activities that OFCOM is charged with doing. The other key area is the question of children's programmes. It is very important in our view that there should be a good provision of domestically generated children's programmes. This is an area where the BBC has been active and, although there have been these types of programmes in the field of the commercially financed public service broadcasters, they are now in a more difficult position because they do not have the revenue to cover this. For this whole range of reasons, we see the BBC as a specifically public service broadcasting organisation which should only relate to OFCOM in certain limited areas.

Lord Hussey of North Bradley

  801. I would very much like to support what the professor has just said, which very much accords with my own views on the BBC, particularly for children's programmes and religious programmes. Really I just have that comment of gratitude, but would you also convey my good wishes to Jocelyn Hay.
  (Professor Porter) Of course.

Nick Harvey

  802. Clauses 182-186 set up a system for Channels 3, 4 and 5 to regulate themselves. There is the annual statement of programme policy; there is quite considerable power under 183 of OFCOM to influence that; and then, under clause 187, OFCOM can intervene if they think the broadcaster is failing to carry out its remit. Are you broadly content with that?
  (Professor Porter) I think there is a degree of danger in that. Partly it has to do with the powers and responsibilities and duties of OFCOM in general. I think if the powers and duties of OFCOM were strengthened in the direction which we have indicated, the approach of the self-regulation co-regulation which is envisaged in the draft bill would become, as it were, more acceptable. The difficulty, I think, as it is formulated at the moment, is that what it sets up is a form of opposition between essentially self-regulating, commercially financed channels and OFCOM, which then would seem as a body in opposition to the wishes of the commercial channels. The difficulty about this, I think, is the question of precisely how those duties are formulated, how the duties of the Content Board are formulated. All these things mix together in rather a complex pattern and we feel at the moment that the Government has not yet got the balance right.
  (Mr Petley) From our point of view, we feel that, as things are at the moment, there is a slight element of shutting the stable door after the horse has bolted. The second thing is that, when you think about the powers of OFCOM, you have to think about OFCOM not up against Carlton or any other major broadcaster but, as it could be, Vivendi or Disney. Are these people going to listen to a body with very limited powers? I think probably not.
  (Mr Redding) I support what Vincent has said. I think there is a cascade of things here. The first is that if there is not a duty in the list of duties for OFCOM to promote and protect the interests of the citizens, then are they going to be doing that when it comes to that regulatory system you outline? Secondly, much of the responsibility for the way that the system operates on the regulator's side is going to rest with this thing called the Content Board. We see the Content Board as something potentially very important to citizens, as a sort of home for citizens interests within this whole structure, but we cannot read that out from the bill at the moment because all that the bill says in clause 18 is that the Content Board shall have such functions as OFCOM may confer on the board. Here is a second level where something with regard to citizenship needs to be provided. I think the actual operation of the system will play itself out in practice but one of the important things in terms of voluntary sector organisations, such as those from where we come, is that there is participation and there is representation and there is some kind of stakeholder's place for the voice of civil society in the way that that system operates once the bill becomes an act. I would just like to add a couple of other things. To make the system work well requires having the right public service remit. Steve has mentioned that we feel it needs refining. There are two points particularly on that. In the White Paper there was a statement of the mix of core requirements which public service broadcasters would have to provide in Tier 3—it was specific to Tier 3—and it included two things which have now been left out of the remit, clauses 180 and 181 of the bill, international issues and science. I cannot speak very well for science but my organisation, 3WE, is backed by 360 international development organisations and we would like to see the word "international" go back in there because at the moment it is only reflected in news and current affairs. I know colleagues support me on that. One last point, if I may. Within the system you have asked us about, Mr Harvey, there is clause 187 2(a), which is where we come on to some of the more serious powers of OFCOM or the Content Board. It speaks of these powers coming into operation if there is "a serious failure" as OFCOM deems it and if it is not "mitigated by economic circumstances". Without necessarily suggesting that those phrases are struck out of the bill, we do see a danger there, that there is an easy get out at any time the economic circumstances, particularly for the commercial broadcasters, are very, very difficult. At any time they can plead that in their defence for dropping an element of the remit.

  803. I think, broadly, taking the three contributions, it is not so much the structures that are proposed which alarm you but the fact that OFCOM itself, as currently envisaged, is there as a fairly dry economic regulator and not as something charged with a sort of public interest/citizen interest perspective, and that if it is working according to its currently envisaged set of duties, there is a complete area not covered and you are then left worried. Might the Consumer Panel offer any possibility for addressing some of these issues if it were to be beefed up a bit? You are saying there is nowhere in the structure for the sort of citizen interests to be argued or represented. Might that conceivably be an area for potential?
  (Professor Porter) It does seem to us anyway that the Consumer Panel actually addresses different issues. It is actually really about delivering systems either from the telecoms operator or from the broadcaster to the consumer. At the moment we do not have any guarantee that the viewer or listener gets a specific level of signal or can complain about the quality of the service or quality of signal that they are getting. This issue starts to become much more important as we move from analogue to digital because the characteristics of the digital signal are different. We see the Consumer Panel as dealing with these issues and perhaps establishing some form of dispute resolution mechanism for aggrieved viewers or listeners who feel they are not getting signals, and that would be different from the sorts of issues you are raising.

  804. It is, indeed. The draft bill at the moment envisages for the Consumer Panel exactly what you describe. Certainly that is very important. Representing an area which has a lot of difficulties with television reception and is not likely to be among the foremost to get broadband, I am acutely aware of that. I certainly would not want the Consumer Panel not to attend to those important matters. I think what I am asking you collectively is whether or not you think there would be an argument for broadening the work of the Consumer Panel to turn it into something rather wider on top of that.
  (Professor Porter) We would be against that. We think there is a great danger of mixing chalk and cheese. The sort of expertise that you would require on the Consumer Panel would, in our view, be quite different from the sorts of expertise that you would require on the Content Board—indeed, the membership would be quite different—so we think the Government is very right to keep these two issues separate. We do not think this Government has got it right yet in terms of setting up the terms of reference for the Content Board.
  (Mr Petley) In answer to your original question, I think the secret here lies in strengthening the Content Board. I think the thing that we find most concerning in the bill's current wording is that clause 18 (3) says that the board will have a "significant influence" on OFCOM decisions. We think it should be something much, much stronger than that.

  Chairman: You should know that our online forum very much supports many of the positions you are taking. For example, Nigel Gibbons of Bristol wrote, "Any new structure such as OFCOM needs to have its framework right, otherwise it will become an open invitation to reduce and cut the range and quality of factual, religious and children's programming." That is quite a consistent theme that is emerging. It is quite interesting that it is these citizenship issues that are coming up time and time again, with very, very little interest in competition issues. So you have a fair wind behind you. I recommend that you not just look at but engage in the online forum—and, indeed, your members. The last question is from Lord Pilkington.

  Lord Pilkington of Oxenford: Everyone else has asked my questions: I have no last question. I was going to ask you about the Content Board and Consumer Panel. All I would ask, if you have any detailed amendments to the clauses in the Content Board, is that you get them in to us as quickly as possible because we are reporting by the end of July.


  805. Do all the remarks you have made apply equally, in your judgment, to radio? When we talk about broadcasting, are we also talking about radio?
  (Professor Porter) In my view, yes. The Council of Europe resolution, for instance, deals with both television and radio.

  Chairman: Thank you very much indeed.

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