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Baroness Wilcox: We on these Benches do not disagree with the principle behind the amendment. It is important that Ofcom provides guidance where necessary and reviews and reports regularly on its operation. It is crucial that any publication should be preceded by extensive consultation. It is not, however, necessary to be so prescriptive. Even without the amendment, Ofcom will automatically undertake the functions in question as part of its everyday operations.

If the Government accept the amendment, it should be toned down a touch—not imposing on Ofcom such rigid operational requirements as the publication of guidance "within 12 months" and

By all means let the regulator provide guidance where it deems that necessary and review the operation of conditions—but at a pace and frequency of its own choosing.

Proposed subsection (2C) would require that before revising the guidance, Ofcom must consult with every person providing a protected programme service and any other person, as it thinks fit. If consultation is to be required, it should explicitly include the providers of conditional access systems as well as the users, so that all relevant views are canvassed.

Lord Avebury: The noble Lord wants Ofcom to elaborate on the manner in which the conditions set under Clause 72 are to be satisfied, but as the clause already gives Ofcom a power that corresponds precisely with the wording of the directive, the conditions ought themselves to contain enough information for operators to understand what is required of them.

If that were not so, every other clause that gives Ofcom powers to set conditions—such as Clause 74 dealing with the imposition of privileged supplier conditions—would have to be accompanied by a similar set of criteria to those in the amendment, including regular reviews accompanied by reports. Ofcom will of course consult service providers and consumer interests when drawing up the conditions and conduct periodic reviews of the way in which they are working as part of its normal day-to-day operations. I am not sure that it is necessary to spell out those duties.

Lord McIntosh of Haringey: I have rather more sympathy with my noble friend Lord Gordon than

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others who have spoken. It is a difficult issue, as he recognises, and it is not entirely resolved by saying, as we do in Clause 72, that operators of conditional access systems should offer services to all broadcasters on a fair, reasonable and non-discriminatory basis. As the noble Lord, Lord Aveybury, said, that is the wording of Part 1, Annex 1, of the access directive being implemented by the Bill.

It is a complicated matter and has proved complicated in the past. Oftel has already been giving guidance. I am sorry that my noble friend is not satisfied with it—or with the speed at which it has been given. I hope that when Ofcom takes over those responsibilities and has in addition the responsibility for complying with Part 1, Annex 1, of the directive and the wording of Clause 72, it will provide the guidance that my noble friend seeks without spelling that out in the Bill.

On Second Reading, the noble Lord, Lord Currie, asked us not to add anything that was not absolutely necessary to the obligations placed on Ofcom in statute. The noble Baroness, Lady Wilcox, and the noble Lords, Lord Peyton and Lord Avebury, have all emphasised that point and I urge it on my noble friend.

Lord Gordon of Strathblane: Despite the existence of Oftel, none of your Lordships knows how much Sky charges for conditional access to a whole range of broadcasters. Is that a satisfactory situation? Can we ensure that Ofcom behaves differently? I am sure that it will. I hope it will. If my noble friend the Minister had said the same as the noble Baroness, Lady Wilcox, with the force of a Ministerial statement, I would be considerably more content. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 72 agreed to.

Clause 73 agreed to.

Clause 268 [Must-offer obligations in relation to networks]:

[Amendment No. 195CA not moved.]

Clause 268 agreed to.

5 p.m.

Clause 269 [Must-offer obligations in relation to satellite services]:

Baroness Wilcox moved Amendment No. 195CB:

    Page 241, line 26, leave out "to be broadcast"

The noble Baroness said: I will speak also to Amendments Nos. 195CC and 195CD. Clause 269 sets out must-offer obligations for public service broadcasters in relation to satellite services.

The principle behind these amendments is to ensure that the clause reflects the openness of the satellite platform and the fact that public service broadcasters do not offer their services to Sky or to any other pay TV service or channel packager but broadcast them themselves using satellite capacity obtained from Astra, as do literally dozens of other free-to-air channels on the platform. The proposed amendments

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change the clause to reflect the fact that when a must-provide service is offered as available, it is not offered to an intermediary such as Sky to be "broadcast" but is actually broadcast by the PSB itself.

Concern has been expressed to us that the clause as currently drafted implies that the BBC and other PSB channels can be made available to viewers only by offering as available their channels to, for example, Sky to be "broadcast" on D-Sat. In other words, that as drafted, the wording suggests that there are other intermediary players in the satellite broadcasting process to or through which PSBs must offer their service and consequently that the digital satellite platform is not an open platform.

This implication results from text that was devised at the stage of the draft Bill that contemplated PSBs offering their channels to satellite packagers. The Government have now rejected the concept of must-carry provisions for satellite packages, recognising that as an open platform any broadcaster, including public service broadcasters, can lease channel capacity from satellite operators such as Astra and Utilstat and offer their services independently of any packager. That is exactly what the BBC, ITV, Channel 4 and Channel 5 already do.

I am aware that the Government may argue that the current wording in Clause 269 is intended to reflect the fact that there are technical elements of the broadcasting process on satellite that the PSBs have to ask others to do, such as uplinking and downlinking the signal or making the necessary technical arrangements for the broadcasting of interactive services. It appears to me, however, that the clause is concerned only with defining where the ultimate responsibility lies for making the service available to viewers by satellite and not the various technical arrangements that might need to be entered into with the satellite platform operators. I hope, therefore, that the Minister will see fit to accept the amendments. I beg to move.

Lord McIntosh of Haringey: Clause 269 is part of the mechanism set out in the Bill to provide quasi universal availability, free to view, of public service broadcasting. I have already explained why I have to refer to quasi universal availability.

I wish to start by setting out the background to the clause. I believe that my understanding of it is the same as that of the noble Baroness, Lady Wilcox. There was much controversy about the best means of securing the availability of public service channels on satellite. The decision made by the BBC to go unencrypted on satellite—although, as the noble Lord, Lord Gordon, said, that was supposed to happen on 1st June but I believe that it did not—might cast some new light on the issue but it does not change it fundamentally. We do not know whether all the technical issues have been solved or whether other broadcasters will follow suit. There is still scope for various models of satellite broadcasting. While some broadcasters will do all the work themselves, others will use a satellite service operator. At the moment, it is in the shared interests of broadcasters, cable operators and satellite providers to

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see PSBs continue to be available on all platforms. But we have to be prepared for a time when that consensus might change, but where, in order to deliver our public policy goals, we still need to see PSBs carried across those platforms, including satellite and cable. The widespread availability of public service channels via satellite, in particular, is an important element of our policy of maintaining universal free access to those channels up to and beyond digital switchover; the must-provide provisions of Clause 270 are also important here.

I should like to stress that all digital platforms are different, and that, therefore, the way in which the Bill deals with them is different. Different rules apply because there are different kinds of system, but the outcome is the same. The satellite platform is "open" in the sense that any broadcaster, including a public service broadcaster, can approach the operator of a satellite and negotiate facilities for the transmission of the service. That is what happens at present with all the public service channels. At present, the broadcasters also buy conditional access and electronic programme guide services from Sky in the UK, enabling their services to be targeted at the right regional audience, for example, and avoiding problems with broadcasts spilling over into countries where the broadcasters do not own the rights to transmit the material in their programmes. In doing so, they operate under the provisions of the Access Directive, which requires—as we have already discussed—that they be offered access on fair, reasonable and non-discriminatory terms. But they may not need such services: as we are aware, the BBC is planning to broadcast "in clear".

Turning to the amendments themselves, I understand that the promoters of these amendments are concerned that the clause wrongly implies that PSB channels can be made available to viewers only by offering their channels to, for example, Sky to broadcast on satellite. But this clause is less concerned with the means by which the channels are made available as the result that the clause delivers, which is the availability to satellite viewers of public service channels. Under subsection (2) it is up to Ofcom to impose the conditions it considers appropriate to secure that the licensed public service channels are at all times offered as available to be broadcast by means of every satellite television service that is used by a significant number of the persons by whom the broadcasts are received in intelligible form as their principal means of receiving television programmes.

The first objective aims to secure that the channel provider does not refuse to provide his channel to the provider of a satellite service, if they can agree terms. It is, therefore, quite different from the second objective which requires the channel provider to ensure that its service will be made available to satellite viewers, and to ensure that as many people as practicable can receive the service. The second objective does not mean that an intermediary is required: the second objective might be secured that way, but it need not be, as the "satellite television service" might be provided by the broadcaster itself.

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While we are pursuing those three objectives, Ofcom might not need to impose conditions to secure all three of them. So, as things stand, the second objective might suffice, but if the situation changes, the other objectives could be brought into play to ensure universal availability. It might also be the case that, because a public service broadcaster is broadcasting its channels itself, the third objective is superfluous, as public service broadcasters are already required to make their services available for free; otherwise, it serves the purpose that the provider of a satellite television service cannot charge for reception of the public service broadcaster alongside the pay channels. The clause gives Ofcom the tools to achieve the policy aim which I believe we all share.

Whether public service broadcasters choose to use an intermediary provider is a commercial decision for them but the results of the end user must be the same—availability of their public service channels free to view.

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