Voice of the Listener and Viewer (VLV) represents the citizen and consumer interest
in broadcasting and works for quality and diversity in British broadcasting.

Clause 3 - General duties of OFCOM

Clause 3 (1) (b).   ‘It shall be the principal duty of OFCOM, in carrying out their functions,  to support and further the communication industry’s capacity to contribute to public, civil and cultural life.’

VLV welcomes the Government’s re-thinking on how to protect the interests of citizens without incurring adverse legal implications and the addition of a new Clause 3 (1) (b).   It appears, however, that the words ‘community as a whole’ may not be sufficient to achieve this end. 

VLV therefore supports the amendment to Clause 3 (1) (b) proposed The Lord Puttnum, The Lord Crickhowell,The Lord McNally and the Lord Hussey of North Bradley, (to add the word ‘principal’) and that proposed by The Baroness O’Neill of Bengarve and the Baroness Howe of Idlicote., (to leave out paragraph (b) and insert ‘(b) to support and further the communication industry’s capacity to contribute to public, civil and cultural life.’.) 

Clause 3 (1) (f).  It shall be the duty of OFCOM in carrying out their functions - to secure that standards falling within subsection (2) are applied in the case of all television and radio services.

Proposals in the Bill weaken the existing public service obligations of the commercially-funded terrestrial television companies.  Responsibility for ensuring the continuing strength of public service broadcasting as provided by these companies and the BBC is to be given to the Content Board, an important part of OFCOM’s constitution.  The remit and powers of the Content Board are, however, only vaguely indicated in the Bill which refers to it exercising ‘significant influence’ over OFCOM’s decisions.  

VLV believes that the role and powers of the Content Board should be set out in much clearer detail in order to protect the public interest, and define more clearly the relationships between the Content Board, the main OFCOM Board and the Consumer Panel.  (See also paragraph 2 below on the functions of the Content Board.) 
 
The functions of OFCOM in handling complaints, for instance, are only vaguely described in the Bill and make no distinction between those complaints which would naturally fall to the Consumer Panel and those which would seem to fall under the Content Board.  In order to rectify this omission VLV recommends: 
 
Proposed amendment:
At the end of  Clause 3 (2) (f), insert new sub paragraph (g):  ‘ the availability of adequate means for considering and, where necessary redressing, complaints from the public about alleged lapses from the standards referred to in paragraph (f)  .’

Clause 12 - Functions of the Content Board

Proposed Amendment: 
At the end of Clause 12 (2) (a) add after ‘transmitted by means of electronic networks’ add:  ‘including consideration of complaints that may arise under Clause 3, (3) (g); and’

Clause 260 - OFCOM reports on the fulfilment of the public service remit

Clause 260 (2) - The Frequency of OFCOM Reports on the fulfilment of the remit 

In the Bill OFCOM is required to report on the fulfilment of the public service remit of the licensees after twelve months have elapsed, and then again after a period of no more than five years.

OFCOM’s reports will cover the activities of all the terrestrial licensed channels, including the BBC. 

The reports will provide the principal means by which Parliament, the Secretary of State and the public will be able judge whether the broadcasters are delivering according to their promises, and whether the public service provision is being diminished. They will thus be central to all decision making in regard to the performance of the licensees.  

The preceding White Paper recommended that OFCOM should report at intervals of three years; the Joint Scrutiny Committee that it should be two, yet the Bill now states ‘no more than five years’.  VLV supports the Joint Scrutiny Committee’s recommendation that OFCOM should report every two years.

Proposed Amendment:
Clause 260 (2) delete ‘five’, insert ‘two.

Clause 260 (3) (A) OFCOM Reports on how each licensed broadcaster has fulfilled the purposes of  public service television in the UK

The Bill divides the consideration of the fulfilment of the public service provision between that provided each year by the individual licensed broadcasters in fulfilling their annual statements of programme performance, and that which is provided by OFCOM’s periodic review of the output of all the licensed broadcasters when ‘taken together across all channels’.  VLV understands the intention not to require more from the commercially funded television channels than they are capable of providing.  

VLV believes, however, that the present wording will not only make it difficult for OFCOM to make an accurate assessment of the output of each channel, but also difficult for OFCOM to ensure that each channel meets the public service requirements expected of it.  VLV believes that these reports will be the key to OFCOM’s assessment both of the overall state of public service provision, and of the contribution made by each of the licensed channels separately. 

VLV proposes, therefore, a change which will require OFCOM to make an assessment of how each channel has contributed to the overall fulfilment of the public service broadcasting privision.

Proposed Amendment:
Clause 260 (3) (a) after ‘have’, insert ‘both individually and taken together’.  Delete ‘(taking them all together over the period as a whole).’ 

Clause 260, (6) (e) 
Educational Programmes 

Clause 260 (6) (e) requires OFCOM to ensure that a suitable quantity and range of programmes on educational matters is provided.  VLV believes that programmes ‘on educational matters’ could be fulfilled merely by including news items about educational issues and may not ensure that programmes of an educational nature are broadcast.   Accordingly, we recommend :

Proposed Amendment:
At the end of Clause 260 (6) (e), add: ‘and of an educational nature’.

Children’s Programmes 

Clause 260 (6) (g) requires OFCOM to ensure that a ‘suitable quantity of high quality and original programmes for children and young people’ is broadcast.

VLV believes it is most important for children to have access to programmes which reflect and enrich their own cultural heritage of language, literature, speech and music.  Accordingly we recommend:

Proposed Amendment 
At the end of Clause 260 (6) (g), add: ’of which a significant proportion should be intended for first broadcast in the UK’.

Pogrammes of a Religious Nature

Clause 260 (6) (f) merely requires that programmes shall be broadcast ‘that deal with ----religion, social issues ---‘  .  VLV recommends therefore:

Proposed Amendment:
After Clause 260 (6) (h) add new clause as follows: ‘That those services include what appears to OFCOM to be a sufficient quantity of programmes of a religious nature.
Proposed Amendment: 

Clause 266 (2) (a) Exemption from penalties for failing to meet public service obligations 

Clause 266 provides for OFCOM to take action if and when a channel ‘has failed to fulfil the public service remit for that channel’.  Or if it has failed to ‘make an adequate contribution towards the purposes of public service television broadcasting’. Subsequently however, Clause 266 (3) (a) states that enforcement clauses cannot be used unless OFCOM believes ‘the failure of the provider is serious and is not excused by economic or market conditions’.

We believe this clause, with its confusing double negative, provides a way for commercial channels, which, either because of mismanagement or because they operate in an increasingly competitive market, to evade any enforcement measures proposed by OFCOM, by claiming exemption on economic grounds. 

We believe that Clause 266 (3) (e) already provides an adequate safeguard in times of economic difficulty by obliging OFCOM to have regard to ‘general economic and market conditions’ when 
making its decisions.  The Joint Scrutiny Committee recommended that this provision should be deleted. We support the Joint Committee and ask the House of Lords to remove this exemption.

Proposed Amendment
Clause 266 (2) (a): delete from ‘and’ as far as ‘conditions’.

Clauses 274 and 281: Channel 5’s public service programme requirements
Channel 5 (Five) was a late comer to a well-established market facing increased competition from largely unregulated satellite and cable channels.  Without universal reach, and with an initial heavy financial burden to bear because of the need to re-tune hundreds of thousands of  video recorders, it was exempted from many of the positive, public service programme obligations laid on Channel 3 (ITV).  

In the ten years since its launch, however, Channel 5 has grown its audience and is now snapping at the heels of Channel 4.  In future as its income rises further, Channel 5 could, with its lighter remit, take advertising from Channel 3 and Channel 4 and so threaten their ability to continue fulfilling their public service remits.  If the ownership rules are altered to allow closer concentration of cross-media ownership, this scenario could be exploited with detrimental effects on the whole ecology of British broadcasting.  

VLV believes therefore that, whether or not ownership rules are changed, provision should be made to bring Channel 5’s public service obligations into line with Channel 3’s as its audience rises.

Proposed amendment:

Clauses 274 and 281 - amend to give OFCOM the power to increase Channel 5’s Tier 2 obligations for original and regional production in line with those of other channels as its audience share rises. 

Clauses 281-282 - Channel 3’s (ITV) Regional Programming

ITV (Channel 3) has, from the first, been based in and committed to, serving the nations and regions of the United Kingdom.  VLV is concerned that in a more competitive market there will be a temptation to reduce this commitment and to focus more exclusively on more commercially attractive programming, indeed there is evidence that this tendency is already well under way and that programme making facilities are being concentrated on metropolitan areas.  The current wording of the Bill requires merely that Channel 3 should commission and invest ‘suitable’ levels of expenditure

In regional programming.  In VLV’s view such wording provides insufficient protection for these valuable strands in future and accordingly:

Proposed Amendments:
Clause 281 (1) (a)  to 281 (1) (d) - delete ‘suitable’ and substitute ‘substantial’ throughout;

Clause 282 - delete ‘sufficient’ and substitute ‘substantial’;
Clause 282 - delete ‘outside the M25 area’ and substitute ‘ the nations and regions of the United Kingdom’ throughout. 
 
Clause 340 - Modifications of Disqualification Provision in regard to Media Ownership
Clause 340 (1) (a) - Individuals and bodies from outside the Member States of the European Economic Area.

Like the Joint Scrutiny Committee VLV can find no evidence to support the Government’s claim that opening the ownership of British media to companies based outside the European Economic Area will increase inward investment or improve management practice.   Moreover, VLV believes that the most powerful  non-European companies come from a tradition of commercial broadcasting in which the tradition of public service broadcasting as it has been experienced in the UK, the Commonwealth and  many European countries, is not only unknown but frequently derided.   

To open British media companies to take-over by such corporations, without at least, demanding reciprocity, would be to put at risk a heritage which has served the democratic, social and cultural needs of our nation for nearly 80 years.   VLV, therefore, agrees with the Joint Committee’s recommendation that any such far-reaching and irrevocable decision about changes to the rules on broadcasting ownership should be left until after OFCOM has had time to conduct a thorough review of the impact which any such changes might have on the choice and quality of services available to listeners and viewers in the United Kingdom.

Proposed Amendment:
Clause 340 (1) (a) - delete whole clause.

Clause 340 (1) (b) - Disqualification for Advertising Agencies. 

Since  the introduction of commercially funded television in 1954 the distinction between programmes and advertising has been a constant feature of television schedules.  That distinction was to protect the public from any possible confusion between programme material and advertising.   Advertisers and advertising agencies bear an obligation to their shareholders which is often in conflict with the public interest.  That perceived conflict of interest has over-ridden competition law.  VLV has seen no evidence to indicate that this situation has changed.   We note that neither the Institute of Practitioners in Advertising nor the Incorporated Society of British Advertisers sought or support this change.  VLV strongly opposes it  and asks the House of Lords to remove it.

Proposed amendment:
Clause 340  (1) (b) - delete whole clause. 

Clause 342 - Relaxation of Licence Holder Restrictions 

The need to preserve the plurality of media choice and information sources is at the heart of British democracy and the debate about cross-media ownership.  If the present restrictions on cross-media ownership are lifted, and the ‘20-20’ rule, which prevents a newspaper proprietor who controls more than 20 per cent of the national press from owning more than a 20 per cent share in a free-to-air  commercial terrestrial television channel, is lifted this plurality of choice and voice will be dangerously eroded.  

Within five years, one corporation - ultimately a single individual - could control more than 37 per cent of Britain’s national press, the leading commercial terrestrial television channel and the dominant provider of, and means of access to, satellite digital television. 
 
The government has recognised the danger of such a situation arising in regard to ITV (Channel 3) but does not appear to appreciate that a similar situation could arise with Channel 5.  The Joint Scrutiny Committee opposed this far-reaching and irrevocable proposal.  VLV supports the Joint Committee’s recommendation s that it should be withdrawn.

Proposed amendment:

That the ‘20-20’ rule in its current form should be retained, thereby prohibiting any significant newspaper corporation from owning Channel 5. 

Ends 
24 April  2003

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 and sectarian affiliations, and concerned with the issues, institutions, funding and regulation that underpin the British broadcasting system.  VLV does not have the resources to handle complaints.  VLV has nearly 30 registered charities, more than 40 academic institutions and some 2,000 individuals in membership.   VLV provides a collective voice for its members and, through its quarterly Bulletin and many public events, an open forum in which all with an interest in broadcasting can participate on equal terms. 

Telephone: 01474 352835.
Fax: 01474 351112.
E-mail: vlv@btinternet.com

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