On 22 September 2023, the DCMS Select Committee (the “Committee”) published its final report on the draft Media Bill (the “draft Bill”). The report follows on from the Committee’s interim report on the draft Bill’s radio measures (which was back in July), focusing on the remainder of its provisions. In this article, we explore the Committee’s findings in respect of the new prominence regime (set out in Part 2 of the draft Bill).
In the report, the Committee makes four recommendations:
1. The draft Bill should be revised to provide that regulated television selection services (“RTSS”) give “significant” prominence to PSBs, rather than an “appropriate degree of prominence”.
This recommendation follows “a considerable difference of opinion over whether the use of “appropriate” was suitable in an on-demand context”. The Committee concluded that, due to the variety of ways in which user interfaces for connected devices can be designed, “significant” would be less open to interpretation than “appropriate”.
2. The draft Bill should allow Ofcom to de-designate legacy devices so that they are no longer subject to the provisions on prominence.
Both PSBs and platforms raised concerns about how legacy devices - those devices which contain software which has been superseded by later models – should be treated. The Committee has concluded that, whilst it is in the interests of both PSBs and platforms that the draft Bill enables legacy devices to be exempted from requirements, it is important that any exemption is not exploited. By allowing Ofcom to exempt certain previously designated devices on legacy grounds, the Committee’s view is that both concerns will be addressed.
3. The “affirmative” Parliamentary procedure should be used when the Secretary of State designates RTSSs.
Pursuant to the draft Bill, RTSSs will be designated by the Secretary of State, with such designations only capturing services that the Secretary of State considers are used by a “significant number” of members of the public. The Secretary of State must receive a report from Ofcom before issuing regulations under this power, however these regulations are subject to the “negative procedure” (meaning that they come into force and will remain law unless either the House of Commons or House of Lords reject them within 40 sitting days). The Committee has recommended that designation of RTSSs should be subject to greater Parliamentary scrutiny (by the more standard “affirmative process”), given the fact that Ofcom’s recommendations can be disregarded.
4. The Government should examine the principles on which existing successful carriage deals have been negotiated and use this to improve the drafting of must-offer must-carry agreement objectives in the draft Bill.
Designated Internet Programme Services (“DIPS”) - internet programme services provided by PSBs that Ofcom designates - are obliged under the draft Bill to offer (“must offer”) their services to RTSS providers and providers of RTSS are in turn required to carry (“must carry”) DIPS. The draft Bill sets three “agreement objectives”, which both sides should use when negotiating their agreements regarding the same. One such objective is that arrangements must be “consistent with [platforms] being able to meet costs reasonably incurred in fulfilling the public service remit for the licensed public service channel in question”. Responding to concerns raised that the objectives are too ambiguous (and the fact that that successful deals already exist – for example between ITV and Sky – suggesting that agreeing mutually acceptable principles is possible), the Committee has called for them to be clarified.
The CMS view – surprise score 7 / 10
If adopted, the Committee’s recommendations will offer some clarity to crucial areas of the draft Bill.
The recommendation of the Committee to provide that prominence should be “significant” will be welcomed by PSBs, whilst one can expect that RTSS’ will be far less welcoming of the change. The Committee’s conclusion that “significant” is less open to interpretation than “appropriate”, whilst true, appears to be founded on a view by the Committee that DIPS should be easily discoverable, in much the same way as linear services. However, the change itself does appear (excuse the pun) significant and a shift from the original position set out in the draft Bill.
Although arguably it does reflect the actual intent of Government which in its White Paper (on the “Government's vision for the broadcasting sector") provided that PSB content should be “easy to find on designated TV platforms”.
We are watching the 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.