In this article, we explore a section of the draft Media Bill that has so far attracted interest from the large parts of the industry: “Part 6 – Regulation of Radio Selection Services”.
Certain smart speaker platforms to be required to carry UK licensed radio stations
The draft Media Bill provides that simulcasts of UK licensed radio stations shall be made available on certain designated voice-activated connected audio devices at no cost to the radio station provider itself. Such devices have seen rapid growth of audio listening in recent years, and the UK Government is of the view that the “must-carry” obligation is required to ensure that UK licensed radio stations are available to audiences as listening habits migrate from FM/AM/DAB to over the internet. In addition, designated voice-activated connected audio devices will not be permitted to interrupt radio station transmissions (i.e. designated voice-activated connected audio devices-initiated pre-roll or interstitial advertising is prohibited).
Who does it apply to?
The relevant provisions in the draft Media Bill apply to so-called regulated radio selection services that will be obliged to carry so-called relevant internet radio services.
(1) Regulated radio selection services
The draft Media Bill provides two relevant definitions:
- “radio selection services”, which is broadly defined as an internet-based service which allows for internet radio to be played by spoken commands. The definition would therefore capture not just smart speakers but also other “smart” devices including connected car media systems; and
- “regulated radio selection services”, which are those radio selection services that are designated as such by the Secretary of State either explicitly or as a result of falling within a definition of “regulated radio selection services” as mandated by the Secretary of State from time to time. This flexibility seems to be an approach the current Government is in favour of to ensure it can react quickly to changes in technology and changes to the media environment. For example, a similar “designation” approach currently applies with respect to those services designated by the Secretary of State as “regulated EPGs”. The only constraint is that the Secretary of State has to be satisfied that the service is used by a significant number of members of the public in the United Kingdom.
The “must carry” obligation applies to regulated radio selection services only. Therefore, it is currently less clear which “services” will have to comply with the “must carry” obligations as no designations have been made and we would not expect them to be until after the draft Media Bill becomes law. However, the Government’s Press Release on the draft Media Bill provides us with an insight into the types of platforms that the Government may have in mind will be designated. In fact, the Government calls out two such services specifically, “Google and Amazon”.
(2) Relevant internet radio services
The simplest way to think of a “relevant internet radio service” is a UK licensed commercial radio station (AM or FM or DAB) or BBC radio station a simulcast of which is also made available over the internet. For simplicity, we will refer to these services herein as “radio stations”. The draft Media Bill suggests that it should also largely carry the same ads (thus limiting the ability for radio stations to monetise their internet audiences through targeted advertising).
How will this all work?
A regulated radio selection service (e.g. an Alexa or a Google Nest) will either be designated explicitly or will be required to notify Ofcom that it qualifies as such where it fulfils the Secretary of State criteria. Whereas a radio station will be required to notify Ofcom if it wishes to be included in the list of stations that will be subject to the “must carry” obligation.
From there, it is not clear on the face of the draft Media Bill how the parties will be expected to proceed and negotiate. Although given that radio stations will not be charged for carriage and regulated radio selection services will not be able to interrupt transmissions, it is hard to envisage that negotiations between them will be too difficult unless negotiations centre around prominence and access requirements.
The Media Bill also gives significant discretion to the radio stations to determine how such radio stations are played (for example, the BBC could request that BBC Radio 1 is played through BBC Sounds). This is likely to be a highly controversial topic with regulated radio selection services as it may lead to additional cost and development time.
What is the role of Ofcom?
Unsurprisingly, Ofcom will administer the two lists of relevant internet radio services and radio stations and will be given powers to levy annual fees on such persons as a contribution to cover Ofcom’s costs of administering its function. The amount of such levy will be determined by Ofcom.
Ofcom will also be required to publish a code of practice on the topic and will provide input and make recommendations to the Secretary of State as to the designation of regulated radio selection services.
In addition, Ofcom will be granted the power to deal with complaints related to the regime, investigate potential breaches, and enforce its compliance (including by levying fines).
The CMS view – surprise score 8/10
As previously noted, we were somewhat surprised to see this covered in the draft Media Bill. Although access to radio has been on the UK Government’s agenda, the only previously published commitment was about radio listings on TV EPGs, so it is somewhat surprising that the UK Government appears to have taken such a broad approach.
It is safe to say that the changes suggested are likely to be very popular with UK radio, and decidedly less popular with smart-speaker type providers. As such, we would expect that this topic will continue to dominate the press and will be a topic which both the House of Commons and the House of Lords spend some time debating. Given the attention this section of the draft Media Bill will inevitably attract, this is likely to increase the difficulty of getting the draft Media Bill into law before the next election.
A few questions also remain, some of which are listed above (e.g. amounts of levies and Secretary of State designation) however a key issue to be considered will be the extent to which a device can interrupt the radio stream. The draft Media Bill states that, where triggered, “the service [must] cause only the relevant internet radio service to play” but this would suggest that transmission cannot be interrupted to provide the user with helpful notifications, such as deliveries, emergency notifications, messages from friends or a doorbell ringing.
We will be watching this Media Bill closely as it passes through Parliament, so keep an eye out for our updates on our dedicated CMS Media Bill webpage. If you would like to discuss any aspect of the Media Bill or how it may affect you, please get in touch.