Onset of the digital age leaves industry in regulatory minefield

Remember the Cable Authority? It was set up under the 1984 Cable & Broadcasting Act to oversee the “wiring of Britain”, which the then technology minister Kenneth Baker saw as a way of kick-starting the British economy.

In those days, cable was “the future” (and satellite a distinctly flaky prospect), which forecasters predicted would operate on a pan-European basis, rather than UK-wide. Satellite – such as it was – was a matter for the Independent Broadcasting Authority (remember that?). Cable wasn’t, much to the IBA’s annoyance.

A few years later, the Cable Authority was abolished by the 1990 Broadcasting Act, and its powers handed to the new Independent Television Commission. Radio, which had been a matter for the IBA, was to come under a new Radio Authority. And taste and decency, overseen by the ITC and the new Radio Authority (not to mention the BBC board of governors), also became matters for a new Broadcasting Standards Council.

Remember the Broadcasting Complaints Commission? That was set up under the 1980 Broadcasting Act to consider fairness and privacy in broadcasting. It has now been merged with the BSC into a new Broadcasting Standards Commission which considers fairness and privacy, and taste and decency.

For those watchdogs that have survived, this is a nervous time. Some or all could find themselves banished to Battersea (or some other home for unwanted watchdogs), as the Government ponders how best to regulate broadcasting in the digital age.

Already the ITC and Radio Authority have found their remits being nibbled away by their economic counterparts – the Office of Fair Trading, Oftel and the Monopolies & Mergers Commission – as the convergence of broadcasting, telecoms and computers leads regulators on to each other’s territory.

The ITC has crossed swords with both Oftel, over issues such as multichannel pay-TV “bundling” or electronic programme guides, and the Broadcasting Standards Commission, over taste and decency complaints.

This week the National Consumer Council called on the Government to abolish the lot of them in favour of a single communications regulator, which it would call Ofcom.

The NCC’s proposal comes in response to the Government’s green paper on regulating communications in the digital world. It is not the first organisation to respond but, to my knowledge, it is the first to call for a single regulator for the whole of the broadcasting and telecommunications sector. Others have followed the Government’s line, which is to wait and see how the markets develop.

ITC chief executive Peter Rodgers says: “There are undoubtedly issues in broadcasting regulation which need to be addressed, including the role of the BSC and the transparency of BBC regulation, particularly in relation to its commercial activities. But we think the resolution of these will be of greater value to broadcasters and viewers than changing regulatory boundaries and structures in the area where television and telecoms overlap.”

The Institute of Practitioners in Advertising is also opposed to the idea of a “super-regulator”. So are the BSC and the Radio Authority. So why is the NCC so keen on it?

“The regulatory framework we have now is messy, unclear and ineffective,” says its director Anna Bradley. “Full convergence may not be here yet, as the Government says, but we need a coherent system in place during the process of convergence.”

The NCC wants Ofcom not just to co-ordinate the roles of the ten existing regulatory bodies – including the BBC board of governors – but to take over from them. It should guard against anti-competitive behaviour, ensure that networks and services are “inter-operable” (so consumers don’t get left with incompatible equipment), and make sure there is open access, real choice and diversity, quality and fair terms and conditions.

It also wants the Government to set up a Communications Consumer Council to represent consumers’ interests. This would handle complaints and conduct research, much along the lines of the Gas Consumer Council, while formal adjudication would be left to Ofcom (as it is with the gas regulator, Ofgas).

One problem with the proposal is that the BSC already fulfils much of this consumer function, handling complaints and conducting research, while leaving the formal adjudication to the official regulators, the ITC and the Radio Authority.

And, of course, broadcasting is a lot less straightforward than gas. TV consumers have differing ideas about what they want to see on screen. How will one body represent them all?

Perhaps the biggest problem for a single regulator would be overwork and lack of focus. When the IBA handled both TV and radio, the radio companies felt they were being neglected. Imagine how a single board would cope with Channels 3, 4 and 5,200 cable and satellite channels, the BBC’s public services and commercial activities, 250 radio stations and dozens of telecoms suppliers and online services.

But the NCC has greater backing in calling for the BBC to be put under an independent regulator. The ITC has already offered to oversee many of the Corporation’s activities, while the IPA, the Radio Authority and the independent radio companies all claim the BBC is less tightly regulated than its commercial competitors.

At the moment, the Government is happy to leave BBC regulation as it is. For how long is less clear. Could the BBC governors one day go the way of the Cable Authority?