The Communications White Paper - BECTU response

1 February 2001

Introduction

BECTU recognises the need for communications reform and welcomes the opportunity to participate in the White Paper debate. The union further recognises that the White Paper falls a long way short of a detailed prescription for legislation. We therefore hope that Government will be flexible enough to recognise strong concerns raised and wherever possible to amend future legislative proposals accordingly.
Our submission focuses on issues of particular concern to BECTU and does not attempt to respond chapter by chapter to the White Paper. We hope that our comments and our priorities - as a representative body for workers in the audiovisual sector - will be given due consideration.
The subject headings within our submission are:
- The regulatory structure
- Ownership and regional production issues
- Universal access and the internet
- Programme standards and public service broadcasting
- Radio
- Equal opportunities and labour market issues
The regulatory structure
We note that the Government proposes:
- a new unified regulator (OFCOM) for the communications and media sectors
- subsuming the existing functions of the ITC, Radio Authority, Broadcasting Standards Commission, OFTEL and the Radio Communications Agency
- with a remit for content and economic regulation
- with general Competition Act powers, together with sector-specific powers
- operating as a corporate body with a Chair, Chief Executive and other executive and non-executive members
- working through formal regulation, company regulation and oversight of self regulation.
Our overriding concern in this area is to retain a separate and specific focus on content as distinct from economic regulation. We return below to how this might be achieved.
We recognise that the underlying context for a single merged regulator is the convergence of the broadcasting, telecommunications and IT sectors through the application of common digital technology. However, as in previous debates on convergence, we believe it is equally vital to recognise the limits (for the foreseeable future) as well as the potentialities of convergence.
- We should avoid technological determinism ie the view that common technology must inevitably lead to common content and services.
- We should recognise that broadcasting - which from our perspective is primarily about programming rather than delivery mechanisms - is and should remain a distinct sector for the foreseeable future.
- Furthermore, regulatory structures formed exclusively on the basis of common technology are in danger of missing the point: that the distinctive regulatory concerns associated with broadcasting may become more rather than less relevant in a future where, in the explosion of broadcasting hours made possible by digital technology, quality programming may be increasingly at a premium.
We further believe that a primarily economic approach would completely fail to address cultural, democratic and social aspects of broadcasting, which cannot be subsumed within a Competition Act approach.
- The EU, in its Amsterdam Protocol, has recognised that a democratic, social and cultural role is central to public service broadcasting; and as noted in para 2.4.3 of the White paper the European Commission regulatory framework for infrastructure 'demands a separate approach from that needed for the regulation of content'.
- Economic competition alone cannot guarantee the benefits of public service broadcasting, nor media pluralism nor quality programming. Market failure in all of these areas is - as many commentators have noted - a likely outcome.
- A separate focus on the non-economic aspects of regulation is therefore, in our view, all the more necessary and justified.
It is against this background that we believe strongly in the need for the separate regulation of content. This need not be incompatible with an overarching OFCOM. It would require, however, distinct and identifiable attention to content within OFCOM.
The White Paper, as it stands, gives no specific and explicit guarantee of this. We note the helpful reference to the need for OFCOM to 'resolve any conflicts between its content-related objectives and its other objectives in a clear and transparent way' (8.6) and that 'OFCOM's work, such as ...the regulation of distinct media like radio, will require different approaches and expertise'. (8.6.2). This falls a long way short, however, of the guarantee on content regulation that we would like to see.
We therefore recommend, in the absence of a separate content regulator:
- a distinct and identifiable division or department within OFCOM to deal with content regulation
- separate personnel to undertake these functions, with appropriate expertise and experience
- clear and transparent means of conflict-resolution with OFCOM's other, economic objectives.
On a linked issue which has surfaced in recent debates, though not in the White Paper itself, we reaffirm our view that there remains a clear and separate roles for both DCMS and the DTI in relation to the communications sector. We believe at this stage, that the need for a separate focus on content regulation would be better served by retaining the separate Departmental roles rather than establishing any combined Department of Communications.
On other regulatory issues:
- We specifically welcome the subsuming of the Broadcasting Standards Commission within the proposed OFCOM, having long believed that the BSC (and its predecessor bodies) form an unnecessary additional agency for content regulation. A unified approach to content regulation is, in our view, clearly preferable.
- We welcome the expectation that OFCOM will 'develop good links with the relevant policy committees and executives of the devolved assemblies and with representatives of the English regions.' (8.1). Genuine accountability in this area is, in our view, particularly important and should be seen as a meaningful alternative to completely separate regulation for Scotland and for Wales.
- We welcome the commitment to 'full consultation with industry and representatives of citizen and consumers' (8.1), with the proviso that consultation with industry should include representatives of those working in the industry rather than purely corporate interests, and should specifically encompass a continuation of the current consultative arrangements between the ITC and the Federation of Entertainment Unions.
- We favour the proposal for OFCOM to be governed by a body of people (executive and non-executive) rather than a single individual. However, we seek more transparency on the numbers, the background and the appointment process for the members of such a governing body. We further believe that a substantial number of such members should have a background in the 'content' sector.
Ownership and regional production issues

Ownership
We note that the White Paper proposes:
- replacing the 15% limit on TV audience share and removing the prohibition on single ownership of the two London ITV licences;
- inviting comment on the reform of cross-media ownership rules;
- amending the ownership disqualifications for broadcasting licences.
We have strongly-held and longstanding concerns about concentration of ownership in the media. The broader cultural and democratic role of the media makes limits on excessive concentration particularly necessary and we therefore particularly endorse:
- the need for backstop powers to underpin plurality of ownership and a plurality of views in the media' (4.2.6)
- 'safeguards to ensure that the media as a whole can never be exclusively controlled by a small number of players' (4.2.7).
On ITV ownership, we note the White Paper's understated comment that 'it is possible that there will be further moves towards greater consolidation of the ITV network' (4.6.2). We do not favour such consolidation, but if the current trend is to continue - aided by any abolition of the 15% limit - we believe it could only be countenanced in the context of a much stronger commitment to regional broadcasting and production in ITV. Our further views on this are set out below. We would certainly endorse, however, a prohibition on joint ownership of ITV and Channel 5.
On cross-media ownership:
- We would oppose any removal of the 20-20 rule ie the prohibition of a company with more than 20% of the national newspaper market from owning more than 20% of a terrestrial broadcaster. This of course would continue to prevent News International from controlling any terrestrial television licence. Given the increasing market power of BSkyB we believe this is fully justified.
- We are not opposed to a more general review of cross media ownership rules. Our submission to the Government consultation on this issue in 1995 accepted the possibility of new means of increasing market share (based on audience and revenue) but with a strong preference for separate sectoral and geographical thresholds rather than a single overall limit, together with clear means of identifying media 'controllers' and very limited discretion for any regulator. We of course very strongly oppose any argument to revoke cross-media ownership rules altogether.
- We believe the terms of reference of any review of cross-media ownership should focus on the commercial media and that non-commercial organisations such as the BBC should be excluded except in so far as they are engaged in commercial operations or joint ventures.
- On ownership disqualifications, we see no justification for a further relaxation on the ban on religious ownership which has been widely discredited in the USA; and we support the retention of restrictions on foreign (ie non-EU) ownership on the grounds of 'ensuring that European consumers continue to receive high quality European content' (4.9.5).
Regional production
In our view, the approaches to ITV ownership and to regional production in the White Paper are interlinked. Essentially, we believe that as a quid pro quo for the proposed relaxation on ownership (eg the 15% limit), it is essential that there should be much stronger requirements governing regional broadcasting, regional programme origination and regional news production.
We endorse the White Paper's own comments on the importance of regional production as a defining characteristic of ITV:
- 'high quality regional television is an important part of ITV's public service offering. It reflects and endorses regional and national identities within the UK. The distinctiveness and strength of ITV lies in its regional commissioning of new and quality programming,' (4.4.2).
- Strong regional production centres can create jobs, opportunities for training, and gateways into the creative industries and national level. Regional production can play a role in promoting vibrant and regenerative regional creative economies, and can help to address geographical imbalances within the national television production industry' (4.4.6).
Sadly, recent trends have served to dilute the regional character of ITV.
- ITV companies have failed to invest adequately in regional programming. A BECTU report submitted to the ITC (focussing on Granada, Ulster, Scottish and Grampian) set out in some detail how cuts in budgets and staffing have undermined regional licence commitments. In Scotland, BECTU's concerns about Scottish and Grampian have been taken up by politicians as well as acknowledged by the ITC, and Granada, for example, removed production of the high profile 'This Morning' programme from Liverpool to London.
- Additional trends have been towards cheaper formats, coproductions, common formats and the use of regional programmes as network pilots, none of which was helped by the alterations to News at Ten - with their consequent impact on adjacent regional programming.
- There has been a distinct and increasing focus of decision-making at ITV Network Centre. This has been accompanied by an increasing failure on the part of some ITV companies to maintain network production levels (or even to bid for network output). As an example on the ITC's own figures, 9 companies decreased their supply of programming for the network between 1993 and 1999, with 4 companies (Ulster, Border, Grampian and Channel) supplying no network output at all in 1999.
- Broadcast transmission functions previously located within regional ITV companies have also been increasingly centralised with, for example, Meridian undertaking such functions for a range of other companies.
Against this background we welcome the White Paper's comments
- that the regional dimension is 'a counterbalance to the possible further consolidation of ITV' (4.4.3)
- that ITV regional obligations 'can be strengthened wherever licences change hands' (4.4.3)
- and that OFCOM should review regional obligations when ownership changes and have the power 'to amend licence conditions to meet any concerns arising.' (4.4.3)
We would go further and seek a strengthening of regional obligations on all regional ITV companies including commitments to:
- a full range of regionally originated programming including regional news output but also other programme strands;
- the use of the full range of regionally-based staff, freelance labour and production facilities to the exclusion of notionally-regional productions made with London-based facilities and labour;
- a minimum level of contribution to the network from each licence holder in proportion to their size;
- regionally based management with sufficient delegated powers and autonomy;
- retention or restoration of broadcast transmission functions.
We of course endorse the White Paper's aim, as set out in 4.4.4, for a strong regional production role for other public service broadcasters.

Independent production
We share the widespread concern at the recent trend towards the acquisition of independents by broadcasters eg GMG Endemol/Telefonica, Pearson/RTL, Talkback/RTL, Ginger/SMG, Planet 24/Carlton. We further believe that the recent trends towards consolidation within a few large independent companies has resulted in a sector significantly different from the original aims of the independent quota, which included a desire to open up broadcasting to a range of different and often smaller companies. We specifically believe this may have hindered the ability of ethnic minority to producers to gain a suitable number and range of commissions.
Therefore, while not arguing for abolition, we would favour a re-examination of the definition of 'independent' and a review of the whole purpose and operation of the independent quota.

ITV news provider
We note the White Paper proposals to:
- retain the ITV nominated news provider system but with an enabling clause for its revocation.
- consider relaxing the 20% ownership limit of the news provider.
We remain unconvinced that market forces alone could potentially be relied on to provide a quality news service as a commercial alternative to the BBC. ITV itself has not assisted in the accessible provision of its current news service through its decisions on News at Ten. We believe that moving even further to the potential removal of the news provider system altogether would endanger the long term guarantee of a quality commercial news service. The present news provider system has not, to our knowledge, provided cause for concern, either within the industry or among the viewers. Set against the risks and uncertainties involved, there simply seems no reason to provide for its abolition.
The removal of the 20% ownership limit may or may not pave the way for a Stock Market flotation of ITN. Additional investment in ITN would be welcome but we believe the nominated provider system is the best means of ensuring that such investment is deployed to the benefit of viewers in a quality news service for the whole of ITV.

Universal access and the internet
On universal access to television, we welcome the White Paper commitments:
- to ensure that public service channels (BBC1,BBC2,ITV, C4, S4C,C5), free at the point of use, will continue to be available before and after digital switchover;
- to maintain and extend 'must carry' obligations for public service channels (including any new licence-fee funded BBC services) on cable and satellite;
- to ensure PSB channels are given due prominence and easy access on electronic programme guides.
On digital switchover, we believe the White Paper is something of a missed opportunity for a further clarification of government thinking. We strongly support the maintenance of a content licencing system for programme services. Beyond switchover we see no reason at present to depart from the current system under which terrestrial licences are renewable indefinitely, subject to satisfactory performance.
On internet developments, our most immediate interest concerns the provision of audiovisual material over the net. We believe there are very broad but as yet uncertain possibilities for the provision of audiovisual services (including multimedia and interactive material) though new electronic means, including the internet. In the context of this uncertainty, we believe it is vital, in the current round of GATS negotiations, to retain a broad definition of audiovisual services which could continue to receive public support mechanisms rather than being opened up to unrestricted free trade. Given the cultural and democratic significance of the media - including the newly developing electronic services - the ability to restrict market forces is and will remain essential, in our view.
We, of course, fully support the new that we should 'expect to see public service broadcasters applying the same high standards and high quality in their services on the internet and via telephony as they do on their traditional broadcast businesses,' (5.9.1).

Programme standards and public service broadcasting
We note that the White Paper:
- recognises that 'public service broadcasting (PSB) will continue to have a key role to play in the digital future, potentially an even more important role than it has now' (5.1).
- proposes a new 3-tier structure with a first tier supporting basic standards (such as taste and decency, impartiality, EC quotas and, we hope, technical standards); a second tier responsible for 'easily quantifiable and measurable' PSB obligations (such as independent production quotas, original production quotas, regional production targets and peaktime news); and a third tier applying to the 'qualitative' aspects of PSB, with an emphasis on self-regulation (but backed by legal duties and backstop powers).
We believe that PSB must retain a central role in the future of British broadcasting. There is a growing new multichannel environment but it is nowhere near predominant in terms of audience and on all currently available evidence is not likely to be so even in the medium term. We therefore see no basis for claims that extra channel choice removes the justification for PSB - claims which are strongly reminiscent of the wild predictions for a 'cable revolution' in the mid-80's. There is, in our view, absolutely no justification at the present time for and amendment of or retreat from current PSB standards.
We accept the White Paper's own arguments that:
- 'PSB remains the best way we have yet found of creating a wide range of UK-made, original programmes' (5.3.3).
- PSB programmes 'provide much of the raw material of digital channels' and through them 'the UK continues to punch above its weight in international awards and exports' (5.3.3) - which success 'is founded on the economic democratic and cultural agenda of our broadcasting' (5.3.4).
- The economics of broadcasting remain characterised by a tendency to market failure and excessive concentration of ownership since while ' new technology has removed one source of monopoly - spectrum scarcity - ...it has replaced it with another - the natural monopoly of economies of scale' (p50).
- PSB is justified on democratic as well as economic grounds as an inclusive means of entertainment, education and information for the whole population and a counterbalance to fears of a reduction in the plurality of views expressed through the media.
- PSB programmes are also justified on cultural grounds: 'they allow our community to talk to itself' (5.3.11).
However, precisely because we accept this analysis and share a strong preference for a continuing role for PSB, we have reservations about the proposals for the 'qualitative public service remit' of broadcasters.
- We remain unconvinced that high quality and a broad range of programmes 'can be better delivered and monitored through self-regulation' (5.8.1) and through annual reports by broadcasters on their delivery of their 'programme statements' (5.8.4).
- While not opposing the development of such programme statements in themselves, we would like to see a much more proactive role for OFCOM on issues of programme range and quality - rather than backstop powers if broadcasters fail to respond adequately. We wish to see OFCOM actively monitoring and enforcing the requirements for programme range and quality rather than merely reacting to broadcasters' failures.
Further, we retain the view that, far from limiting the requirements on non-PSB broadcasters to the more limited first tier, consideration should be given raising the requirements for original programming and quality programming wherever the revenue flow makes this feasible. In our view, this would certainly be the case for BSkyB - whose performance on programme originality and quality should be monitored and challenged.

BBC
We note that the White Paper:
- is 'not proposing to change the BBC's role and remit' (5.6.7);
- preserves the BBC Governors' core responsibilities including responsibility for content, editorial independence, the public service remit, interpretation of the BBC Charter and 'calling management to account';
- provides for monitoring by OFCOM in areas where outside bodies are currently involved (eg independent quota - currently the OFT; taste and decency - currently the BSC);
- retains backstop powers with the Secretary of State for Culture and with Parliament.
We broadly welcome this continuation of separate and independent regulation of the BBC through the Board of Governors and believe that any wholesale subsumption by OFCOM would be unnecessary and inappropriate.
We recognise that the White Paper is not intended to examine the BBC in the level of detail that would be expected in a Charter review. We believe, however, that some aspects of the BBC's governance merit further examination. In particular, despite the White Paper's identification of the Governors' role in 'calling management to account', we believe this is not currently being fulfilled to the extent it should be.
We would wish to see:
- a clear and meaningful separation of the Governors from the management of the BBC;
- the servicing of the Governors by a secretariat independent of the BBC (and not, as currently, by BBC staff);
- a greater obligation on the Governors for information disclosure and transparency of operations.
- a tighter PSB remit for the Governors.
- greater accountability of the Governors, including scrutiny of appointments by Parliamentary Committee.
We repeat, however, that we continue to support independent regulation of the BBC through the Governors and welcome the broad thrust of the White Paper's proposals in this respect.
In respect of any new licence-fee funded services, we note that the Secretary of State will retain the power of approval but with an advisory role for OFCOM. We would hope that this is used to retain the BBC's strong PSB role (instead, for example, of any move towards narrower 'genre broadcasting' channels) but that the BBC is not unduly limited in new developments by the purely commercial self-interest of rival broadcasters. We hope that any process of consultation on new services is suitably open and is not restricted to commercial or competition criteria.

ITV
In addition to the points made above in respect of ownership and regional production, we support the White Paper's provision for a key PSB role, 'a strong regional focus including regional production and commissioning' and a diverse, high quality schedule' (5.6.9).
We believe that any emerging argument from the ITV companies about increasing competitive pressures reducing their ability to deliver PSB obligations should be subject to full public debate and consultation before any amendment in standards is even considered.

Channel Four
We strongly welcome the White Paper's commitment to 'reject proposals to privatise Channel 4' and 'maintain (its) present structure as a non-profit making statutory corporation' (5.6.8).
In principle, we welcome the proposed review of C4's remit 'to make it more positive and to ensure the service continues to provide distinctive and innovative programming in the future.'

Channel Five
We remain unconvinced by the continuing trend to reduce C5's PSB obligations. A downward spiral in which 'increased competition' is continually used to justify a reduction in the Channel's programming obligations is not satisfactory and could lead to questioning of C5's raison de �tre. We believe that the Channel's performance in terms of original programming should be closely monitored.

S4C
We note the White Paper's proposal that S4C's current role and remit will remain and that the regulatory authority will therefore continue to be the S4C Authority (ie the S4C board) reporting ultimately to DCMS.
We have, over the years, developed strong reservations about the performance of the S4C Authority. It is virtually unknown - certainly in the public arena - for the Authority to question S4C managerial decisions. In essence, the Authority appears to lack due vigour and independence from the channel it is supposed to oversee.
We therefore believe the role of the S4C Authority should be reviewed, with a view to ensuring a suitably strong and accountable role for the regulator in this area.

Radio
We note the White Paper's proposals for:
- regulation by OFCOM rather than the Radio Authority but with a recognition that 'the regulation of distinct media like radio will require different approaches and expertise' (8.6.2);
- consideration of a revision or revocation of the points system governing radio ownership;
- a lightening of programme format controls (on ILR and INR);
- the possible development of 'Access Radio'.
In line with our general view on the need for separate content regulation within OFCOM, we strongly favour the retention of a separate department, personnel and expertise within OFCOM to deal with the regulation of this distinctive sector.
We remain unimpressed by the commercial radio industry's continuing calls for ever lighter regulation in respect of ownership and of programme obligations. The sector already has a considerable degree of concentration of ownership, and reasonably light programme regime (which has led some to characterise ILR as no longer particularly 'independent' or 'local').
We therefore support the retention of at least the 'limited positive obligations' currently placed on local radio (5.11.1) and the role of OFCOM in reviewing the onward sale of local licences. Beyond this, we believe that further lightening of regulation in respect of ownership and programming has not been justified on grounds of anything but the blatantly self-serving commercial interests of the radio companies. We would like to see a stronger and more challenging attitude to company arguments from the future regulator, while recognising the need to retain a commercially-viable sector.
On the proposal for an Access Fund, under the aegis of OFCOM, for increased community radio services, we continue to hold the reservations we have always had concerning this sector. Increased access or community radio should never, in our view, simply come to mean cheap radio, over-reliant on volunteers rather than professional staff and with a tendency to under-cut the already less than vigorous standards in local radio. We believe the Access Fund proposal has some merit - but only if it adds to rather than undermines the fragile ecology of local radio. It should certainly not, in our view, open up a route for the further potential deregulation of local radio.

Equal opportunities and labour market issues
We strongly agree with the White Paper's view that broadcasters all need to be alert to the UK's many cultural, linguistic and social communities'. We welcome the initial work of the Cultural Diversity Network, which ties in with our own public campaigning in the recent period on 'concerns...about the adequacy of the representation of our multicultural society on and behind the screen', (4.4.7). We expect DCMS and, in future, OFCOM, to play a key and committed role in monitoring broadcasters' performance in this respect.
We further agree with the White Paper proposal that 'OFCOM will be required to give due weight to the need for improved access to communications sources for people with disabilities', (7.6). We would extend this to the need to facilitate increased participation by people with disabilities as workers in the media.
On training for workers in the broadcasting industry, we believe OFCOM should have 'a general responsibility to promote support for training including powers to research and monitor performance ... underpinned by licence requirements....to set out plans in this area', (5.6.3). We support such licence requirements on all broadcasters under tier 1 but we also believe that such requirements should strengthen in proportion to public service obligations.
We further agree on the need for the industry to work with the education sector since, in our view, we are currently faced with an oversupply of media studies graduates ill equipped to embark on long term careers in the sector.
In all training matters we fully support the expectation for OFCOM to work with Skillset and to take account of the work of the Audiovisual Industries Training Group. We would expect that Skillset should be involved in all aspects of the process, including identifying licence requirements and developing methods for monitoring and evaluating performance.
Underpinning all of the new developments in the digital era should, we believe, be a concern to protect and enhance the rights of creators, whose work is crucial for the future health of the audiovisual sector.
Lastly, but as a trade union very much not least, we would wish due consideration to be taken of the position of the current staff of regulatory authorities such as the ITC, and the Radio Authority. We strongly believe, in line with our arguments set out above, that their experience and expertise should be retained within any future OFCOM structure and on this basis we seek reassurances about their future job security.

Conclusion
We hope Government will take note of our views on all the issues outlined about and in particular on the issues of separate content regulation, strengthened regional production obligations and quality programme standards. We look forward to further participation in the debate on communications reform.

Last updated 22 July 2001

The Communications White Paper - BECTU response

Introduction

The regulatory structure

Ownership and regional production issues

Universal access and the internet

Programme standards and public service broadcasting

Radio

Equal opportunities and labour market issues

Conclusion

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