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"( ) In this section "intended audience", in relation to a service of any description, means—
(a) if the service is provided only for a particular area or locality of the United Kingdom, members of the public in that area or locality;
(b) if it is provided for members of a particular community, members of that community; and
(c) in any other case, members of the public in the United Kingdom."

The noble Lord said: My Lords, throughout Committee and Report stages, there was general agreement that the obligation to give due prominence to the listing of public service channels on EPGs should apply to the national or regional variation of those channels provided for the area in which the channel was being watched; for example, BBC Wales in Wales or Granada in the North West. There were also concerns that we should find a form of words that gave the clearest possible indication of our public policy objective without predicting the outcome of any commercial negotiations that operators would need to conclude if we were to see the objective delivered.

The amendments reconcile those different aims. Their effect would be that, where a public service channel is provided in different versions for different regions or areas, a viewer watching the channel in one of those areas could access the relevant version of the channel through the channel's primary EPG listing.

To make it crystal clear, it is a matter of public policy that all regional variations of a public service channel should benefit from due prominence to the same extent.

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How that is achieved is a matter that should be determined through commercial negotiations under Ofcom's supervision.

I hope that that statement will reassure both those who want regional versions of public service channels to be given due prominence, and those who want to make it clear that, in order to achieve that objective, broadcasters would pay, on fair, reasonable and non-discriminatory terms, for access to EPG and conditional access systems in so far as that was needed to secure regionalisation. I beg to move.

Baroness Buscombe: My Lords, we support the amendments. We welcome the Minister's statement.

On Question, amendments agreed to.

Clause 309 [Consultation about change of character of local services]:

Lord Davies of Oldham moved Amendment No. 53:

    Page 275, line 15, leave out "section 106(1A)" and insert "subsection (1A) of section 106"

The noble Lord said: My Lords, in moving this amendment, I shall speak to Amendment No. 55. I shall also speak to Amendments Nos. 54 and 56, which we reject. It is right to require Ofcom to consult on a request for a departure from the character of a station. However, I do not accept that a requirement to consult places significant additional burdens on the industry. The process of requesting a change is no different from current arrangements, and there is no requirement on a radio station to do anything different or additional to what is currently required.

The clause does not require radio stations to incur any expenditure. Any costs incurred by the radio industry will be those that they have chosen to incur, and entirely at their discretion. Some additional costs may be incurred by Ofcom in considering representations, but those are likely to be minimal and are justified by a more accountable and more transparent process.

I am also confident that Ofcom, mindful of its general duties, will exercise this duty in a way that minimises the costs to the radio industry. I am therefore satisfied that it should be Ofcom's duty to consult. We have included the provision because it is important that, where appropriate, Ofcom should seek the views of others before allowing a departure from the character of a station.

I understand that my noble friend Lord Eatwell, who is unable to attend this evening, sees merit in the government amendments. I am very grateful for that. I am in some ways sympathetic to the idea that Ofcom need only consult where the departure is significant, as set out in Amendment No. 54. However, unfortunately, the amendment as drafted would create an unwelcome clash of language between the new consultation provision that would apply when the departure was significant and the language of new subsection (1A), which allows Ofcom to make a departure where it is satisfied that it would not substantially alter the character of the service.

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I am pleased to report that I seem to have succeeded in persuading my noble friend Lord Eatwell of the merits of that case. He would not press his amendment if he were present, as he would be supporting the government amendments. I beg to move.

Lord McNally: My Lords, I have good news for the Minister because we support his amendment and would have opposed the amendment tabled by the noble Lord, Lord Eatwell.

Baroness Buscombe: My Lords, the noble Lord, Lord McNally, took the words right out of my mouth.

Lord Davies of Oldham: My Lords, to have the approval of the noble Lord, Lord Eatwell, and the plaudits of the noble Lord, Lord McNally, supported by the noble Baroness, Lady Buscombe, are rewards above and beyond anything I have ever deserved. I commend the amendment to the House.

On Question, amendment agreed to.

[Amendment No. 54 not moved.]

Lord Davies of Oldham moved Amendment No. 55:

    Page 275, line 17, after "licence" insert "on any of the grounds mentioned in paragraphs (b) to (d) of that subsection"

On Question, amendment agreed to.

[Amendment No. 56 not moved.]

Clause 313 [Exercise of Broadcasting Act powers for a competition purpose]:

Baroness Buscombe moved Amendment No.57:

    Page 278, line 14, leave out "and"

The noble Baroness said: My Lords, I speak to Amendments Nos. 57 to 69, which concern economic regulation and appeal.

I return to an issue that we debated extensively in Committee, and again on Report, and which I seek again to address through my amendments. It is an extremely important issue that concerns the scope of broadcasters' rights to appeal regulatory decisions of an economic nature to the Competition Appeals Tribunal. I am disappointed that we made no further progress on this matter on Report, and I believe that the Government's answers so far have failed to address all the concerns that I have raised.

Under Ofcom's Competition Act powers or its sector-specific competition powers, economic regulation is, by definition, a matter of competition, and decisions taken through these routes by Ofcom are subject to full rights of appeal to the Competition Appeals Tribunal. Regulation of broadcasters through their licences "for a competition purpose" is also subject to full rights of appeal to the CAT, when that is the only or main reason for the decision.

My concern, however, lies with the very real possibility that Ofcom may decide to undertake economic regulation of broadcasters—their pricing or packaging of channels, for example—for reasons that

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have nothing to do with competition. Ofcom could, for example, use its duties under Clause 3 of the Bill to undertake such regulation—either, as I have said before, using its duties to further the interests of citizens or consumers in relevant markets or—and this is important—to secure the availability of a wide range of TV and radio services.

In such instances, the Bill would provide no right of appeal to the CAT, and instead would allow only for the more limited route of judicial review, which looks at the decision-making process only and not the merits of the decision. That contrasts with the economic regulation of, for example, telephony providers under Part 2 of the Bill, in which all decisions are subject to appeal to the CAT.

In Committee and on Report, the Minister sought to reassure me on this matter. He argued that, because the duty in Clause 3 to promote the interests of consumers is limited by the parameter,

    "where appropriate by promoting competition",

it would be,

    "hard to imagine a situation where any intervention in pricing and packaging of channels . . . would not be undertaken using Ofcom's competition powers".

It therefore follows that I get the result that I desire that,

    "Such an intervention would have a route of appeal to the CAT".—[Official Report, 1/7/03; col. 867.]

As far as it goes, that is a welcome reassurance. At least now, in the case of the duty to promote the interests of citizens and consumers in relevant markets, we have an indication from the Minister that, in practice, any economic regulation relating to the pricing and packaging under this duty will be appealable to the CAT. However, I am afraid that this is only a partial answer. As I have said, economic regulation of broadcasters could also take place under the Clause 3 duty to secure,

    "the availability throughout the UK of a wide range of television and radio services".

My concern, therefore, does not just lie with the duty to further the interests of citizens. In his answers on Report and in Committee, the Minister appeared to misunderstand that point. On Report, he said:

    "The amendment . . . stems from her concern . . . that if Ofcom undertakes economic regulation other than for a competition purpose . . . under its duty in Clause 3 to promote the interests of consumers that broadcaster would not have a route of appeal to the Competition Appeal Tribunal".—[Official Report, 1/7/03; col. 868.]

That is not my argument. It goes wider than that, as I have just explained and as I explained in Committee and on Report. I am mystified as to why the Minister's answers fail to address the wider concerns that I have outlined and continue to focus on just one part of them.

I have been brief in my comments, given the time already taken up by the matter. I hope that, even at this late stage in our deliberations, the Government will see the merits of the arguments that I have put forward in this and other debates and will accept my amendment. I beg to move.

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9 p.m.

Lord Davies of Oldham: My Lords, as the noble Baroness, Lady Buscombe, emphasised, we have debated the issues at some length. I am sorry that I have not been able to reassure her sufficiently for her not to have tabled the amendments at this stage.

We must be clear about the issues contained in the amendment. It is important to understand the consequences of accepting the amendments. We believe that they have been prompted by a particular broadcaster, a point that noble Lords will wish to bear in mind. Accepting the amendments would risk opening the door to a regulatory regime that is very different from that contained in the Bill. The amendments would seriously damage Ofcom's ability to regulate effectively and flexibly. In particular, they would prevent Ofcom from taking proper account, alongside the important economic and competition issues, of the wider public and consumer issues that we have been pressed to include in the Bill, as we always intended.

Several noble Lords and others have expressed a strong desire to see such interests properly protected. The draft Bill contained many references to that necessity. However, we have also made changes to the Bill as a result of pressure from all parts of the House. We have explained in detail the many procedural and other safeguards against misuse by Ofcom of powers in that area. It is vital that Ofcom is not made subject to further unnecessary handicaps such as the amendments would create.

The noble Baroness will appreciate that I could go on at considerable length about the Government's case. I had great difficulty engaging the attention of noble Lords on the issues in Committee and on Report. Regrettably, we have not reached the agreement that I should have liked. At this late hour, I have no intention of reiterating all the arguments that I have presented in the past. Suffice it to say that we understand that there is at least one broadcaster who is anxious about the provision. I have tried to indicate that, if we met those representations, we would recast the regulatory structure of the Bill. In particular, we would reduce the impact and the effectiveness of the structure that is being created by due deliberation in the House of propositions that we have accepted.

On that basis, I hope that the noble Baroness, having moved the amendment with her usual acumen, will think that I have a strong enough case to prevent her from pressing it.

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