BECTU response to "Regulating Communications"

26 August 1998

Introduction
1. BECTU welcomes the DCMS/DTI (UK Department of Culture, Media and Sport/Department of Trade and Industry) consultation on digital convergence and its implications for the legal and regulatory frameworks covering broadcasting and telecommunications. We note that this is a further stage of the debate engendered by the European Commission Green Paper on Convergence.

2. Within this debate, the focus of our interest is primarily on the broadcasting sector, and especially on the provision of facilities and skills for original programme production. We do not, therefore, attempt to address all the issues raised by the Green Paper but we concentrate specifically on the regulatory regime for broadcasting (and particularly for programming). On approaching this debate, we firstly wish to comment on the notion of 'convergence' itself and to indicate our view on the need for regulation per se.

   Concept of Convergence

3. We believe that technological convergence will not, as some commentators seem to assume, automatically lead to a convergence of content and services between the broadcasting and telecommunications or information technology sectors. The concept of convergence is indeed seductive. The potential for separate sectors to develop in the same direction can become, in the eyes of some, a matter of inevitability. The blurring of distinctions between sectors can develop - with superficially attractive but inherently false logic - into the disappearance of any such distinctions. As the Green Paper notes. 'The fact that technologies are converging does not mean that the markets which employ them become indistinguishable' (page 3).

4. What is at fault with some of the current discussion on convergence as it affects the broadcasting sector is the leap - a form of technological determinism - from evidence of technical convergence to a prediction of convergence on content. On the contrary, we believe that broadcasting - which from our perspective is primarily about content rather than form, about software rather than hardware, about programming rather than transmission technology - is and will remain significantly distinct for the foreseeable future.

5. We further believe that an excessive focus on convergent digital technology in the means of transmission and delivery - through a huge increase in the number of channels available - can obscure the fact that content (i.e. programming) is becoming increasingly important. In the actual and potential explosion of broadcasting hours made possible by digital technology, quality programming will be increasingly at a premium. Regulatory structures formed exclusively on the basis of common technology are in danger of missing the point - the distinctive regulatory concerns associated with broadcast programming may become more, not less relevant and necessary in the future.

   Continuing Need for Regulation

6. As a consequence of our caution on the concept of convergence, and specifically on the argument that technological convergence subsumes convergence in content, we also take issue with the increasingly prominent argument - sometimes explicit, sometime implicit - that regulation is at best a necessary evil and at worst a straightforward barrier to be overcome so that the 'natural' play of market forces can take their course.

7. An increasingly familiar view - as we move from analogue channel scarcity to a multichannel digital future - is that regulation is less necessary; 'regulation is not an end in itself' (EC Green Paper); there should be 'no regulation for regulation's sake'. We would lay equal stress on the view that 'market forces are not an end in themselves' and on the principle of 'no market forces for market forces' sake'. Market forces do not represent a 'natural' state of affairs; just as with regulation they are the product of human decision-making within a particular economic content.

8. We fear that in a sector as complex as broadcasting - with very significant cultural, democratic and political as well as economic criteria in play - the prospect of market failure in achieving non-market oriented objectives is significant. Market forces cannot, for example, necessarily guarantee consumers the benefits of public service broadcasting. Political and cultural pluralism in the media does not naturally develop from a free market in broadcasting (which may, in many contexts, lead in precisely the opposite direction towards excessive concentration of ownership). Non-market oriented objectives require specific regulatory frameworks to ensure at least the prospect of achievement.

9. We therefore believe that the Government's approach to the role of regulation in the context of convergence should involve the explicit rejection of any assumption that market forces represent a natural 'default position', against which any regulatory intervention has to be justified as a special case. On the contrary, we believe regulation has a positive and indispensable role; the only issue is what form this should take.

   Key Aspects of Broadcasting Regulation

10. Before considering the structure of regulation we also wish to touch on key aspects of the substance of broadcasting regulation, i.e. what are the key issues to be covered by regulation, and to what end?

11. In our view, issues which should remain central to any future broadcasting regulatory regime are:
    • programme content and standards

    • media ownership

    • programme origin

12. On programme content and standards we would strongly support a continued regulatory role in relation to:
    • high quality and diversity of programme content

    • pluralism of views and an aim of impartiality in news and current affairs coverage

    • universal access to broadcasting as 'an inclusive, comprehensive and reliable information source'(p.17)

    • appropriate controls over offensive material

13. We would see a continuing and central need for positive programming requirements of the type indicated above not just in the benchmark areas of public service broadcasting but also beyond.

14. On media ownership we fully agree with the Green Paper that 'It is necessary to have controls on ownership over and above those applied by general competition law to ensure that no individual voice becomes too dominant and that such an influential medium reflects the full range of opinion and issues in society, and provides fair and balanced coverage' (page 16).

15. It follows, in our view, that regulation to limit the degree of concentration in media and cross-media ownership will continue to be necessary, as will positive measures to encourage pluralism. In particular, we see no case whatsoever for any further relaxation of the ownership regulations set out in the Broadcasting Act 1996 (which arguably have already allowed an unhealthy degree of concentration within the ITV network). We look to further progress in this area from the long-standing European Commission initiative on pluralism and concentration in the media.

16. By programme origin we refer to those other key aspects of television programming which concern economic structure rather than content, i.e. requirements for original programme production, for a minimum independent quota and for European-originated production.

17. Broadcasting is currently far from being a free market. There are specific regulations covering these three areas of concern. These underpin the broadcasting sector's ability to produce a range of quality programming and form a necessary barrier to over-reliance on repeated programmes or on cheap imports from the world's overwhelming dominant audio-visual industry based in the US. These regulations are structural rather than content-related but we believe it will be equally important for future broadcasting regulators to retain responsibility in such areas.

    Public Service Broadcasting

18. Underpinning and exemplifying the regulatory aims set out above is our public service broadcasting (PSB) system. Central to our future regulatory approach should be a recognition of the non-market objectives associated with PSB and identified so clearly in the EU Amsterdam Protocol, i.e. 'the democratic, social and cultural needs of each society.'

19. Furthermore, a PSB system is of value not only in itself but as a quality threshold or benchmark for other programme providers. We therefore agree with the Green Paper's initial statement that 'Many of the new services will offer a view of the world which is partial (perhaps in both senses of the word), and their programming will be determined by commercial factors. Public service broadcasting cannot be seen as merely filling in gaps. Its positive role will be more important than ever'. (Page 33)

20. We can summarise the advantages of PSB as follows. These are the justifications for a continuing central role for PSB (which in our view only broadcasting-specific regulators could deliver).
    • democratic, social and cultural role referred to in the Amsterdam Protocol

    • the central contribution to our democratic system offered by a broadcasting sector which is pluralistic in content and provides universal access to all at a minimum affordable cost, (as opposed to a subscription-based system priced at what the market will bear).

    • programming for a mass audience which seeks to entertain, educate and inform (and specifically not just the residual supply of what the market fails to deliver).

    • a benchmark of quality against which all broadcasters can be judged and which can serve in this way to raise and maintain standards across the board.

    • emphasis on the need for a range and quality of programming (and the consequent programme investment) which the market may not spontaneously provide.

    • the strongest existing source of investment in and commitment to original European programme production, as opposed to excessive repeats and imports

    • a counterweight to the private concentration of ownership in the media (how 'free' is the broadcasting 'free market'?)

    • a successful and popular track record: in many countries it is still the free to air generalist PSB channels that continue to attract the majority of TV audiences.

    Structure of Regulation

21. On the base of the above analysis, we believe strongly in the continuing need for a separate, broadcasting-specific regulatory structure. We do not accept, for the reasons set out above, the arguments for a common regulatory structure with telecommunications and information technology - which we believe would have to be driven by market orientated economic criteria and which would be incapable of giving adequate priority to all the non-economic, non-market regulatory aspects of broadcasting referred to above.

22. In specific response to the Green Paper, we therefore agree with the Government's preference for an evolutionary approach, leaving the existing broadcasting regulatory structure in place. We do not believe that any fundamental change to regulatory method and structure will be either necessary or desirable in the short and medium term. It follows that we strongly disagree with the recommendation of the Culture, Media and Sport Committee for a single Communications Regulation Commission.

23. Ironically, the one area in which we believe broadcasting regulation could benefit from a rationalisation and unification of separate bodies is precisely that of programme content. Under the previous Conservative government we saw the establishment of a surfeit of separate regulators on content - especially the Broadcasting Standards Council and Broadcasting Complaints Commission. These have now been combined into the Broadcasting Standards Commission. We see no reason, however, for the continued separate existence of such a body, and no reason why its functions should not be subsumed under any existing or future broadcasting regulators.

24. Our approach to the long term future of broadcasting regulation - as indicated in our response to the EC Green Paper - is essentially one of 'building on' existing structures rather than creating a wholly new regulatory structure. We recognise that there is an emergence of new issues (e.g. regulation of conditional access system) and already an involvement of non-broadcasting regulators (e.g. OFT) on some infrastructural issues. However, in our view the core aspects of broadcasting regulation are likely to remain distinctive. Nor is a regulatory split between economic and content issue appropriate, since broadcasting regulation involves both aspects (e.g. in respect of encouraging original production and independent production). In these circumstances, increased co-operation between separate regulators is likely to be more fruitful than attempts to create new and artificial regulatory structures and dividing lines.

    Conclusion

25. The digital future will be characterised, in our view, by technological convergence but not by the convergence of content and services as between broadcasting and other sectors. All the key aspects of broadcasting regulation - including programme standards, ownership, programme origin and PSB - will remain distinctly necessary for the foreseeable future. Not only will regulation per se be necessary and desirable (since the market will be unable to deliver the required solution) but so will a separate, broadcasting-specific structure. We support the Government's evolutionary approach and look to a future which builds on rather than removes our existing structures of regulation.