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Lord Ashley of Stoke: I support the amendment because it guarantees a prominent position on the first page of electronic programme guides for publicly funded channels. As the electronic programme guides develop, they will supersede newspaper and magazine listings. They will become not merely important but crucial for access to publicly funded channels.
We have already seen an example of manipulation of standard buttons with number four disappearing from its usual place and popping up, surprisingly, at number 40. People have difficulty in finding it. In order to anticipate further difficulties which may be created, all we have to do is to imagine that we now have the expected 200 channels up and running. Operators wanting to refine the Videotron technique of manipulation could exercise their talents for misplacing the buttons. They could say, "Let us put this number not too high, because it will be found easily. Let us not put it too low at number 200 because that is the second place people will look. Let us perhaps put it at 91 or 157 where people will not think of looking or will have to scramble around looking for it". The operators can play a deadly game, damaging publicly funded channels. They will do that, because it is in their interests to try to damage the opposition.
That manoeuvre has already been played by Videotron. We know from experience how newspapers tend to "lose" a correction or an apology near the bottom of a boring column or on an inside page. The same dirty tactics can be used in television with these electronic guides. The amendment shackles the operators to fair play. Some of them will not like it. That is just too bad. Those who play fair will not object to the amendment, and those who do not play fair should be deprived of the chance to play foul.
Baroness O'Cathain: I could go into a long dissertation on that. It all goes back to computer technology where we operate on screens with menus. It is a completely new use of the words that we have been using all our lives. It would be better for me to take my noble friend aside and explain it to him.
I support the amendment moved by the noble Baroness, Lady O'Cathain. I always listen with interest to what she says and not only on broadcasting matters. But what she says on this particular issue, which is very important, as the noble Lord, Lord Ashley, has just said, carries all the more weight because, as she said, she is not an instinctive regulator. She is a free market person. Therefore, when she says what she does about this issue, her views carry very great weight and should be listened to by the Government.
But more than that, let us suppose that an electronic programmer decides, as I have seen happen in other countries, that it will use the time of a programme for the guide. For example, at 3.30 in the afternoon three new programmes are starting and are all put next to each other and then at 5 o'clock other programmes come on and they are all put together. If such a broadcaster is stuck with the detail of the proposed subsection (2)(b) it would be impossible to produce such a perfectly acceptable programme guide. If there is to be fair and effective competition, that would be a matter best left to the person responsible for ensuring it rather than writing it on the face of the Bill.
Viscount Brentford: I support these amendments. Many of the arguments for them are similar to those put forward in respect of the previous group of amendments except that here we are dealing with electronic programme guides rather than the actual gateway itself.
I emphasise that this is about fair competition. It is important that that should be written onto the face of the Bill. In view of what my noble friend said previously, whether we give the right to the commission or to Oftel is a matter that does not concern me greatly. I believe that there should be somebody who has the right to supervise the use of EPGs so that if they are being abused in any way, somebody has the power to make the necessary regulations to prevent such abuse.
On Tuesday the Minister said in another context that there is always scope for primary legislation to amend any problems which may arise. But that may take a couple of years. It seems to me that that does not provide fair and effective competition in this field.
I am certainly concerned that if there is totally uncontrolled use of EPGs, they could be abused. Like others on this side of the Committee, I am against extra bureaucracy and unnecessary regulations. But it is extremely important to ensure that we have fair and effective competition in the provision of electronic programme guides and somebody should have a supervisory role, although that may take up a little time. I believe very strongly that all the stations, including the public service stations, should have fair access on EPGs. I am sure that none of us could quarrel with the terms of the proposed subsection (2)(a) even if there are questions in relation to subsection (2)(b). I commend the amendment to the Committee.
Lord Colwyn: Perhaps I may strike a different note and oppose the amendment. My reasons are that as no EPG digital services as yet exist, it seems strange to force potential investors to place other programmes on the first page of their EPGs. That would be a major disincentive to invest the substantial amounts of time and money required in the first place.
The amendment is discriminatory. Why should the BBC, with its guaranteed licence fee, two nation-wide networks reaching into most homes and its own digital multiplex, be allowed to place its programmes in the prime spot on an EPG which has been developed by private companies in direct competition to it? The BBC does not offer first page prominence or indeed equal treatment to satellite channels on its terrestrial teletext services or listing magazines.
Those regulatory requirements are premature. If new systems and dominant market positions are established and abused, competition law and regulatory remedies would be appropriate. I believe that my noble friend said that it is imperative not to distort competition. If the BBC wishes to obtain a privileged position on the first page of a commercially developed EPG, it must be willing to pay for that privilege or willing to develop another on its own or in partnership with other investors. I oppose the amendment.
Lord Donoughue: I was slightly puzzled when the question was asked why we should deal with this because the problem is not yet with us. The whole Bill is put before us on that basis. As has been said, this matter relates to what we discussed previously in relation to conditional access. It will be a very important matter because through those navigation guides, the viewer will be able to select and view particular programme channels. When there are hundreds of channels to choose from, the electronic programme guide becomes one more gateway. It is a gateway direct to one channel among those hundreds, by-passing the others.
Therefore, as has been said, the order of programmes in the guide, the prominence and the promotion given to a preferred group is a potential abuse and is potentially discriminatory and unfair. Therefore, it is extremely important that the EPGs are not used to distort competition, favouring some and discriminating against others. Basically it means that every receiver must be able to access any programme and the conditional access providers should not control the navigation. Order and prominence should not be used to favour and discriminate.
We should note that the United States, which already lives with many of the problems that we are now discussing, is currently and urgently proposing legislation to deal with this issue. We should take this valuable opportunity to do the same because we do not often have the opportunity for primary legislation in this area and it would be very sad if we did not take it now. Therefore, I support the amendment.
Lord Inglewood: I am most grateful for the comments that have been made about this important subject. I concur with all those Members of the Committee who have emphasised that this is an important topic.
I should like to make some comments about the amendment and then make a few comments about the problems in relation to reception in the Crystal Palace area. I have just received a note about that. It is
The Government are aware of the potential that electronic programme guides might provide for unfair competition, in particular where an EPG operator is also a broadcaster. A hierarchical arrangement of different information "windows" and menus, through which users must navigate, could clearly be used to disadvantage rival broadcasters by placing their programme services only in the lower levels of the hierarchy. I hope that my noble friend will agree that that is the same as she was saying, only expressed in a different way.
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