In the first article of our 7-part series, we explore Part 1 of the draft Media Bill, which aims to futureproof the obligations of public service broadcasters, and make it easier for these obligations to be met in an age where linear channels are becoming gradually less relevant.
The current public service broadcasters (we will, with apologies, refer to them as public service media owners, or “PSMOs”) include the statutory corporations of the BBC and S4C, and the providers of the licensed public service channels (“LPSCs”) that provide nationwide Channel 3 services, Channel 4 (also a statutory corporation, but regulated in a different manner to S4C) and Channel 5.
The current public service remit is set out in the Communications Act 2003 (the “Act”) as a set of programming purposes and objectives for PSMOs. The Act requires PSMOs to provide a wide range of socially valuable programming that is high-quality, balanced, educational and representative, and meets the needs of the wider public. Public service content should also be accessible to most of the population on a free-to-air basis.
To encourage diversity of content and suppliers and to help promote television production in the regions, the Act also requires that PSMOs fulfil certain quotas to ensure that a suitable proportion of their network programmes consist of independent, original and regional productions.
Currently, the only content that can be credited towards the fulfilment of each PSMO’s remit and quotas is content shown on their respective main linear television channels.
However, almost 20 years after the Act came into force, the television landscape has changed significantly. Changes in technology and consumer viewing habits mean that the days of majority content viewership through linear channels are quickly fading. The British viewing public is increasingly sourcing content across multiple formats (e.g. OTT, VoD, IPTV, Connected TV) and from multiple providers, with global players such as Netflix, Disney+ and Apple TV growing their market share year-on-year.
Following Ofcom’s strategic review of public service broadcasting, the government concluded that the legal framework for PSMOs needed a refresh to address the challenges of the evolving landscape.
What changes are proposed by the Media Bill?
The government’s aim in this part of the draft Bill is to ease the statutory burden on PSMOs and to ensure that they continue to thrive despite the increasing pluralisation of the UK’s media landscape.
Part 1 simplifies and updates the public service remit and is intended to give PSMOs greater freedom and flexibility on how they meet their public service obligations. An unashamedly functional part of the draft Bill, Part 1 achieves this through a series of amendments to the Act and other existing broadcasting legislation. We look at some of the key changes below.
The draft Bill allows PSMOs to fulfil their public service remit by making available audiovisual content through “relevant audiovisual services”. Rather than having to rely on the provision of television services through their primary linear channels to fulfil their remit obligations, PSMOs can now use licensed TV content, digital programming, internet programming and other editorialised internet content, as well as TV broadcasting, to do so. In practice, this means the BBC iPlayer and its commercial counterparts will likely be deployed as the primary means of propagating some public service content.
The draft Bill replaces the existing fourteen programming purposes and objectives with a streamlined remit and sets out the types of public service content which count towards a PSMO’s contribution to the remit, requiring that PSMOs must provide: “comprehensive and authoritative” coverage of news and current affairs that facilitates “fair and well-informed” debate; distinctively British content (in other words, content that “reflects the lives and concerns of different communities and cultural interests and traditions” within the UK), including content in recognised regional or minority languages of the UK (such as Welsh or Cornish); programming aimed at children and young people in the UK; and original, independent and regional productions.
Content will not contribute to the remit unless the PSMO has taken steps to ensure that the content can be received or accessed by as much of its intended audience as is reasonably practicable, in an intelligible form and free of charge. Where content is provided by an on-demand service, it will not contribute to the remit unless it is available for viewing for at least 30 days.
Where Ofcom believes that an LPSC has failed to fulfil its remit, its enforcement powers under the Act now extend to any audiovisual services which the LPSC has indicated (in its statement of programme policy) it is using to fulfil its remit.
In a similar vein to the updated remit, LPSCs have been granted greater flexibility in how they meet their production “quotas”, with the requirement to allocate time “in the channel” to the broadcasting of independent, original and regional productions replaced with a more general requirement to make available content, including independent, original and regional productions, through “qualifying audiovisual services”. “Qualifying audiovisual services” include TV broadcasting services, on-demand services and other “relevant audiovisual services”. Services such as iPlayer, ITVX, or All4 (including when distributed by another provider, such as on Sky, Virgin or connected TV platforms) and wider internet content will now be able to contribute to the quotas.
Content will not count towards the “independent production” quota unless it has been commissioned in accordance with the LPSC’s commissioning code of practice, which importantly means that the “Terms of Trade” will apply to public service content for whatever platform it is commissioned by a PSMO). The Secretary of State may also authorise Ofcom to exclude certain types of content from counting towards the “original production” quota. Where it is deemed that a particular type of programming has not been made available to audiences, the Secretary of State can give Ofcom the power to require PSMOs to provide more of that type of programming.
To help LPSCs manage quotas across these diverse services, fulfilment will now be assessed by reference to content duration (i.e. number of hours), rather than proportion (such as a percentage of channel time). The Secretary of State has been tasked with setting the level of the quota for independent productions. Ofcom is responsible for setting the level of the quota for original and regional productions and assessing whether it would be appropriate to require that some of those hours of original productions are provided at peak viewing times.
Where the same or substantially the same content is made available across multiple services, the draft Bill does not make clear the extent to which ‘repeats’ of the content can count towards the quotas. Instead, the draft Bill leaves it to the Secretary of State to provide for this and, in turn, the Secretary of State may require Ofcom to determine the answer to this (other than in relation to the “independent production” quota).
Comparable provisions on quota obligations are set out for the BBC and S4C in Schedule 1 of the draft Bill, reflecting the somewhat different way in which these services are regulated, compared with the LPSCs.
iii) Statements of programme policy and commissioning code
LPSCs will need to update their statements of programme policy, which set out how they intend to fulfil their remit, to identify which relevant audiovisual services they will use to fulfil their remit and the proposed contribution by each of those services.
Similarly, LPSCs will need to update their codes of practice for commissioning independent productions to cover the commissioning of independent productions for other qualifying audiovisual services where the LPSC wishes to count these towards the “independent production” quota.
iv) Ofcom powers
The draft Bill grants Ofcom new powers to issue information notices, requiring PSMOs (other than the BBC, which is covered by an existing provision in the Act) to provide information needed for carrying out Ofcom’s updated functions, and to impose financial penalties for contravention of a notice up to a maximum of £500 per day or £250,000 overall.
Part 1 also repeals provisions relating to the public teletext provider, saying an official goodbye to the service 14 years after it was last active.
CMS View – Surprise Score 1/10
The need to modernise the framework governing PSMOs has long been acknowledged by the government and industry stakeholders and was a key facet of the government’s white paper published last year and the preceding Ofcom PSB review. In the light of that white paper, the contents of Part 1 of the draft Bill are largely as expected. The changes proposed in Part 1 will allow PSMOs to deliver on their remit and quota obligations using the diversity of services that they operate. Whether these changes are sufficient to ensure their survival in the UK’s audiovisual future remains to be seen. As mentioned above, further clarity is still required as to the complex but key question of how content made available multiple times across multiple services should be treated.
While we were not surprised by the approach for PSMOs, our surprise score comes from the repeal of the public teletext provisions which, despite prompting a trip down memory lane to the days of Ceefax, was not mentioned in last year’s white paper.
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 draft Media Bill or how it may affect you, please get in touch.