The 2003 Communications Act
Steven Barnett
After nearly three years of debate, consultation, controversy and scrutiny, the 2003 Communications Act has finally emerged from the darkness. It represents the most sweeping changes in the British broadcasting and telecommunications landscape at least since 1990, and probably since the emergence of commercial television in the 1950s.
It has not been an easy passage for the government, who have been forced to accept a number of fundamental changes during the parliamentary passage of the Bill through the Commons and the Lords. At its heart lie two fundamental and interrelated driving forces, both in their different ways contentious and both resulting in some inherent tensions within the Act which will be played out over the next ten years.
The first driving force is the notion of ‘convergence’ between telecoms and broadcasting. It has become an act of faith amongst governments around the world – and particularly in recent years the British government – that means of sound and voice transmission are converging in ways which will make it a nonsense to regulate different technologies in different ways. We can, in theory, watch broadcast television on our computers, mobile phones or PDAs, and transmit anything via broadband cable or satellite. The advent of digitalisation, in particular, allows the translation of any data into a format which can be communicated via any means. The logic, therefore, is to combine all regulatory bodies dealing with electronic media rather than continue to compartmentalise different technologies.
In consumption terms, technologies have not converged and are unlikely to do so for many years. Whatever may be technologically feasible, we do not watch TV on our computers nor email via our television sets. (Consultants like to talk about ‘lean forward’ and ‘lean back’ technologies to distinguish between behaviour patterns associated with computers versus televisions).
It is the logic of technology supply, however, that has driven the new regulatory system, in which the Office of Communications (Ofcom) will replace five different bodies regulating television, radio, telephony and allocation of the radio spectrum. The two main bodies involved in the merger – the Independent Television Commission, which oversaw commercial public service television, and Oftel which oversaw telephony – emerged out of very different and largely incompatible cultures of regulation.
In the policy statement which accompanied publication of the Bill, the government states its belief that in today’s global economy “deregulation brings benefits for consumers and for businesses”. In the telecommunications industry, global experience and practice suggests that this is true. In the broadcasting sector, however, experience suggests exactly the opposite: that less regulation and more unfettered competition leads inexorably to a poorer service for consumers and an impoverished creative and cultural environment.
There are a number of reasons, mostly centred on the economics of free-to-air broadcasting. It is, for example, cheaper to import ready-made programmes from America than invest in original production in the UK, even though most viewers prefer domestic programmes. It is much less risky financially to exploit well-known names, re-use familiar formats or re-package current successes. Certain genres of programmes, like quiz shows, soaps or police dramas, are easier to promote and more likely to generate big audiences than factual or arts programmes – although the vast majority of viewers like to watch some ‘minority’ programmes. It is cheaper to employ fewer journalists working abroad and therefore to reduce news coverage of international affairs.
The narrowing range of programmes, the reduced level of innovation, the tendency towards uniformity and the reduced opportunities for new creative talent are all potentially significant consumer losses. In more general terms, the duty on Ofcom to “secure light touch regulation”, and to withdraw from its regulatory duties where possible, owe more to a traditional economic model of regulation which may well be appropriate for the telecoms sector. For broadcasting, it is a much riskier approach.
This leads to the second related tension, which has long been inherent in communications policy, between commerce and culture. The commerce argument is founded on the need for a dynamic, profitable and expanding British communications industry, to compete on the world stage with other media conglomerates. The culture argument is based on prioritising a thriving and innovative creative community, and on trying to ensure that the reach and power of broadcasting is exploited for the nation’s cultural and democratic benefit.
Much of the rhetoric in both the White Paper and the policy documents that followed, as well as in ministerial speeches, stressed the need for a ‘light touch’, to allow for deregulation and liberalisation as a means of promoting corporate expansion. In fact, there are many ways in which the final Act attempts to square the commerce-culture circle by spelling out some important content interventions which Ofcom will be expected to make.
There is, for example, a public service framework spelt out for the commercial free to air channels which is more coherent and comprehensive than the relatively fragmented set of obligations which currently exists. Ofcom will have the power to ensure that the commercial channels deliver against that framework and will be reporting every three years on the state of public service broadcasting.
Television news has been singled out for special treatment. The existing ITV requirement – to take its news from a provider nominated by the regulator and to schedule regular bulletins in peak-time – is extended to ensure that ITV “provides adequate financial support”. How this will be calculated and whose definition of ‘adequate’ will prevail will no doubt be one of the many tests faced by Ofcom, but this is a positive step towards retaining a strong, commercially viable news competitor to the BBC.
The most contentious area of the Act, which was not concluded until the very last Commons reading, was on ownership. The government has been committed to opening up British broadcasting to American buyers, and to relaxing the ban on major newspaper proprietors from owning a terrestrial TV channel (while maintaining the ban for ITV). Under huge pressure from the House of Lords, and in particular from a band of New Labour peers led by Lord Puttnam, the government finally acceded to a ‘public interest plurality’ clause which allows the Secretary of State to block any deals which may compromise media pluralism. How this is defined, and more importantly whether government ministers will have the political courage to thwart the corporate ambitions of powerful newspaper proprietors, remains to be seen. There are many critics who are pessimistic about the ability of regulators and politicians to stand in the way of media consolidation.
The decision not to place the BBC fully under Ofcom has been criticised, although the decision will be revisited in the run-up to charter review. It is certainly the right decision. Ofcom could not realistically oversee commercial broadcasters while passing impartial judgement on BBC decisions – such as scheduling or new programme initiatives – which would have direct financial consequences for commercial competitors.
Furthermore, in the interests of pluralism, it cannot be right to subject the whole of British broadcasting to a single group of government-appointed individuals. Given the choice between one body or two charged with defining and looking after the public interest, democracy is better served by having two. In its current form, the balance is probably right: allowing Ofcom to comment on the BBC’s perfomance, but leaving editorial and programming responsibility with the governors as trustees of the public interest – and accountable ultimately to Parliament.
A huge burden is being placed on the converged regulator at a time when, throughout the world, the relentless forces of competition and consolidation are having a less than beneficial impact on programming. The irony is that, in terms of Britain’s broadcasting culture, much seems to depend on a heavy hand being exercised by a regulator designed to be ‘light touch’.
© 2003 Steven Barnett - University of Westminster
Steven Barnett is professor of communication at the University of Westminster and co-author of Westminster Tales: the 21st century crisis in political journalism, published in 2001. He writes frequently on media issues, and has a fortnightly column in the Observer on broadcasting.