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14|02|05

Minutes of the 3rd meeting of the Ofcom Advisory Committee on Older and Disabled People, 13 October 2004

Present:

In attendance (*for parts of the meeting)

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1. Welcome and introductions

1.1 There was a roll-call of attendees. Apologies were received from Sally Greengross and Fred Heddell. Prior to the meeting the fire alarm had been set off by a smoke detector. Bradley Brady explained that an intermittent alarm meant standby. If followed by a continuous alarm everyone would be required to immediately evacuate the building. This raised the issue of personal evacuation plans for members of the committee who were unable to use the stairs. Bradley Brady would contact members about evacuation plans.

AP1 Bradley Brady to discuss personal evacuation plans with members, plans to be in place by the next meeting.

2. Minutes/Matters arising

2.1 There was brief discussion of the format of minutes. They were not intended to be verbatim reports of meetings but should capture the main issues discussed and any action points. Members were invited to advise the Secretary when they felt that something was missing from minutes. On most occasions there would be a speech to text transcript and this could be made available upon request.

2.2 A member asked for confirmation that Consumer Panel consumer research would be shared with the committee. Bob Twitchin confirmed that was the intention.

2.3 The minutes of the previous meeting were agreed and signed by the Chairman.

3. Television Access Services/Electronic Programme Guides (EPGs)

3.1 A written update from Peter Bourton had been circulated. A member welcomed the requirement for some music channels to provide subtitling but questioned that requirement when at the same time there were certain non-music channels missing from the prescribed list (in the Ofcom statement on the Code on Television Access Services) because they did not meet the 0.05% audience share of UK households. They had in mind the omission of channels that were possibly of more value to hearing impaired people and highlighted the position of Time Warner. It was probably the biggest media company in the world and yet some of its channels were not obliged to provide subtitles.

3.2 Kevin Carey said that in discussion with the Content Board he had been adamant that music channels should not be allowed to avoid obligations on subtitling, despite arguments about copyright. It was not permissible to remove some channels with obligations from the list and add others with no obligations. Such a practice would suggest 'trading'. The 0.05% figure had been the best achievable threshold. Bradley Brady commented that the channels required to provide access services would be kept under review.

3.3 A member raised use of icons on EPGs and research conducted by ETSI. At the previous committee meeting it was said that icons were not technically feasible. ETSI's research could lead to progress. Kevin Carey had discussed this with the Content Board and objected to use of abbreviations prior to use of symbols or icons and had argued that they should be considered in parallel. He had also objected to the assumption that abbreviations should be on the top of descriptor pages for programmes rather than on the EPG itself. Broadcasters had argued that there would be insufficient room for abbreviations for access services to which his reply had been that until abbreviations had been agreed objections could not be raised, based on their length. A member commented that there would be difficulties because of programme duration, eg short news bulletins on Sky appeared as a block of one character and a button had to be pressed to find out the name of the programme. Kevin Carey said that he had not been willing to concede that in all cases symbols should be in the back description. There were EPGs other than Sky and EPG makers were constantly upgrading their systems and improving resolution that could allow use of different fonts. He did not want to give away a principle because of the limits of current technology. EPGs were high on the Content Board agenda.

3.4 A member commented that it would be useful to have access via EPGs based on standardization of the numbering system, ie the same numbers on different EPG systems. Kevin Carey said that this would not be feasible for several reasons: for holders of EPGs, position was considered part of their brokering power; consideration was being given to use of position on EPGs as a designator of public service broadcasting (PSB), ie the more PSB output, the higher the position on the EPG; it would be complex to achieve; and there could be competition issues. The member welcomed the Content Board's interest in EPGs and urged that Ofcom raise issues with NDS, a News Corporation subsidiary and developer of the Sky EPG.

3.5 Ofcom would be consulting on EPG abbreviations and members were encouraged to respond. A member commented on Ofcom's consultation documents and website and how intelligible they were to different audiences. Bradley Brady said that Ofcom tried to ensure that its publications were accessible but welcomed any further suggestions for improvements. The Chairman said a message from the committee was that Ofcom should do all that was necessary to ensure its documents were 'readable'. He was aware that there was pressure on Ofcom to produce more succinct documents.

4. Future Planning

4.1 The Chairman briefly reviewed the committee's team building session held on 19 July 2004. The event had identified issues that members felt were important and how the committee could best work as a group. On 7 October the Chairman and Lydia Thomas had attended an Ofcom Strategy 'Away Day' and given an opportunity to influence the strategy. The committee would have the chance to comment further when the Ofcom plan appeared.

4.2 Lydia Thomas reported in some detail on the strategy day. There had been an opportunity to engage with the Ofcom Board and executives, the Content Board, the other advisory committees, the Spectrum Advisory Board and the Consumer Panel. The committees' dual roles as critical friends to Ofcom and as sources of expert advice were emphasized. Important decisions would be required during the next six months to implement the outcomes of Ofcom's strategic reviews. In 2005 Ofcom would build on work during its foundation, with a clear rationale for intervention and the importance of regulatory impact statements was stressed. Future challenges would include a shifting agenda in content regulation, including food and alcohol advertising; training in broadcasting; codes and PSB. The advisory committees for the nations spoke about their work to date and their current concerns, eg digital switchover (DSO), mobile roaming; and raised issues around their working arrangements, eg the frequency of meetings. The Consumer Panel reported on priorities in its work programme, its consumer research project and the report it was preparing for DCMS on vulnerable consumers and DSO. The Panel was eager to work closely with the advisory committees, to focus on issues around information for consumers and to develop a 'tool kit' to 'audit' how well Ofcom considered the consumer interest in its regulatory decision making. Plenary sessions were followed by 'breakout' groups that looked at driving switchover and broadband; promotion of effective competition; empowerment of citizens and consumers; preparations for the future; and options for regulatory withdrawal.

4.3 The Chairman commented that the strategy day slide presentations would be useful for members and copies were distributed. Summary feedback documents from the strategy day would be available to committee members. There was a need for improved consumer information. A member referred to details in small print that were not picked up by consumers and consumer confusion about how to pursue complaints about premium rate services. The Chairman commented that views coming into Ofcom's Contact Centre needed to be 'joined-up' with responses to consultations. Another member said that there would be positive value in collaboration with other committees and the Consumer Panel. A mechanism was required to bring together the five advisory committees, eg observer status at each others' meetings. The Chairman said that it would be important to interact with the industry and other groups, eg NGOs, and proposed informal sessions to follow future committee meetings beginning in April. Members were invited to make other suggestions. From feedback a member had received, broadcasters and disability groups appeared to expect the committee to be more open with them. Bradley Brady said that in his ongoing relationships with stakeholders he made it clear what the roll of the advisory committee was, ie as part of Ofcom's internal governance and committee structure. The informal sessions proposed by the Chairman would be a good way to establish a dialogue.

4.4 Members had received a paper prepared by the Chairman and Bradley Brady that included a suggested mission statement, proposed committee working arrangements and priorities for 2005. There was discussion of the mission statement, including comments about 'communications needs' and whether this was intended to mean electronic communications or was to be used in a wider sense, eg how Ofcom dealt with issues around sign language; whether it should refer to 'advice' or a wider role for the committee; whether the committee's concerns were rights rather than needs; and whether they should be represented rather than considered. Bob Twitchin suggested two additions to the paper, that the section on working arrangements include reference to maintaining close links with other Ofcom committees and key Ofcom departments and that the priorities section include something similar in the section on 'preparing for the future', including building links with the Consumer Panel. The Chairman was a firm believer in the value of mission statements and said that the paper, and the mission statement in particular, would be redrafted in the light of discussion and re-circulated to members for comment. Once agreed it would appear on the committee's section of the Ofcom website. The committee's annual report was raised, this would be published as a section in Ofcom's annual report. 'Easy Read' versions of meeting papers could be made available to members upon request.

4.4 Members would forward to Bradley Brady their nominations for a Vice-Chairman for the committee and confirm whether they themselves were willing to take on the role if nominated.

AP2 Bradley Brady to redraft mission statement and paper.
AP3 Members to forward Bradley Brady Vice-Chairman nominations, with an indication of their own willingness to take on the role.

5. PSB Review

5.1 Members had received copies of Ofcom's Phase 2 PSB consultation. Alex Towers summarized the main issues. In the digital age the existing analogue model of PSB was going to break down and the current PSB obligations required of ITV and Channel 5 would not be sustainable. Channel 4 would be doing less PSB, as it balanced commercial pressures and its PSB remit. With no action by Ofcom the BBC would end up as a near monopoly provider of PSB. That would not be desirable. Ofcom's view was that a range of PSB providers was important, to provide competition for ideas, spur innovation and serve different audiences. That was the current system, where different channels provided different sorts of services, even in the same genre, eg current affairs. That was a benefit to viewers and worth sustaining.

5.2 Work done on audience research and analysis of the economics of broadcasting suggested that funding for PSB should be kept at current levels. This was what viewers said they wanted and there did not appear to be a 'crowding out' effect, ie the amount of public funding put into the system did not appear to have an adverse effect on the amount of advertising or subscription funding. There was an issue: at present there was direct funding from the license fee but there is also indirect funding in the form of free or subsidised analogue spectrum. That indirect funding would disappear at switchover and there would be a gap of about £400 million to consider filling.

5.3 Challenges were being posed by the emergence of a whole range of new technologies offering new ways of delivering content. It would be important in the future for PSB to make use of those new technologies and the public service content would not be delivered just over traditional TV channels but in a variety of new ways over new platforms. That was an opportunity for PSB as well as a challenge. All these themes have been tied together in the core proposal of a Public Service Publisher (PSP) to provide a degree of plurality alongside the BBC in a digital world. This would not be in a traditional terrestrial sense, as a single linear TV channel, but as a distributor of content across broadband and on-demand networks as a competitor to the BBC.

5.4 The Chairman invited members to raise questions. One member asked for clarification of different types of current affairs. Alex Towers explained that there were different formats aimed at different audiences and with different perspectives. Another member asked whether a PSP would result in higher PSB funding and if legislation would be required. In summary, it was less a matter of additional funding but more to do with funding being generated in a different way. Currently there was implicit funding, with £400M subsidies to commercial broadcasters in the form of tax revenues foregone as a result of the way spectrum was allocated. The £400M could be found in a number of ways, for example by raising the level of the TV licence fee. Decisions would be for Government to take and this route would require legislation.

5.5 A member was concerned that there had been a dilution of the principle of inclusion that had appeared in the Phase 1 consultation. Alex Towers argued that the ambition to support a tolerant and inclusive society had not changed, only its expression. Another member shared this concern, arguing that training and education were crucial to ensure that disabled people were employed in the broadcasting sector and able to influence thinking. Alex Towers said that the PSB document was about the economics of broadcasting and a rationale for investment of £3B of public money. He felt that there was a separate question about how much the industry did to support inclusion and it was not a specific focus in the PSB review.

5.6 A member asked whether consideration had been given to the idea of an alternative licence fee with monies shared out amongst all broadcasters to fulfil the PSB remit and whether the 'reach' of PSB would be national, as currently. The answer to the second question was that the detail had not been worked out. There could be a risk in setting up a PSP with a relatively small sum of money, compared to that received by the BBC. The idea of a 'pot of money' contestable by every broadcaster had been rejected. There would be problems: bureaucracy in setting up a new entity to oversee funding decisions; the separation of commissioning decisions from the broadcaster putting programmes to the body that would run the service; and separation of genuine and non-serious bids, some broadcasters could have an incentive to bid to fund programmes that they already made without public subsidy. There was concern that viewers could end up with only the BBC and the PCP. This was unlikely since Channel 4 should sustain itself as a PSB provider.

5.7 A member was concerned about representation of disabled people in the context of the PSP. Alex Towers commented that the PSB review was a blank sheet in terms of content and would welcome views. In answer to a question he clarified the current broadcast spectrum regime, where commercial broadcasters paid a spectrum charge at a level that did not reflect a market rate. He confirmed that Ofcom's view was that the BBC should remain as the cornerstone of PSB. Another member raised the issue of access services and the PSP. As a viable alternative to the BBC it would need to be fully accessible to disabled people. That would involve a high financial commitment that would be competing with limited funding for programme making. Alex Towers said that the intention was for a PSP to provide access services on a par with the BBC and the committees views on how to achieve that would be welcomed.

5.8 A member returned to the theme of a shared 'pot' and bids. They suggested that it did need not have to be applied on a programme by programme basis. It could be based on a broadcast strand of so many hours and left to broadcasters to manage. Alex Towers commented that it would remain difficult to force commercial broadcasters to take part in PSB. The PSB document argued for a range of broadcasters who were committed. Another member raised video on demand (VOD). These were not regulated services but we could soon be entering a phase of individual programming on demand, as opposed to traditional linear TV channels. He argued that VOD should be included in the next phase of PSB research and that the committee should form a link with the body regulating VOD to ensure that there were access services. Alex Tower's view was that the individual programming described remained some way off. Ofcom had no role in regulation of VOD but that that could change in the future. A member asked whether PSB broadcasters were obliged to conduct research or whether the obligation was on Ofcom. Alex Towers explained that the Communications Act had introduced a degree of self-regulation. It was left to broadcasters to measure performance, including some audience tracking. Ofcom would carry out analysis of how well the market was working and would determine whether broadcasters' self-assessment could be relied on.

5.9 In the course of the discussion that followed new points were made and others were fashioned for inclusion in a committee submission:

5.10 The committee's PSB sub-group would draft a submission to Ofcom. The consultation would close on 24 November. Members would be given an opportunity to comment on the draft.

AP4 PSB sub-group to draft a submission to Ofcom and allow members an opportunity to comment.

6. Broadcasting codes

6.1 Fran O'Brien spoke about broadcast codes. She explained the position under the legacy regulators and under the Communications Act and the move to principles and rules. A public consultation on draft codes had closed on 5 October. The project team was evaluating the approximately 900 responses and would re-write the code for publication in the New Year. Consumer research projects had already been set up on religion, sexually explicit material on television and offensive language. There had been research with school children. The code would try to do what could be done to protect the under 18s before 9pm and thereafter give broadcasters more leeway to differentiate their services for their respective audiences. From next year Ofcom would take into account who the audiences were and the kinds of warnings they required in complaints of harm and offence.

6.2 A member raised two issues. The first was under section 10 on fairness, their view was that there should be reference to portrayal of disabled people on the screen. The second related to offensive language, there were several disability related words which were regarded as offensive. They argued that the latter issue should be built into Ofcom's research. Fran O'Brien said that there would be portrayal guidance on disability but it could not be written until the code had been agreed. Research included words to do with disability, one reason being that a number of complaints had been made to Ofcom about use of negative terms. A response from the BBC had expressed concern about restrictions on language if applied in a way that prevented ground breaking comedy series, challenging generally accepted standards or quoting from them. This was something to watch out for in comedy. Ofcom did not want to stop people provoking changes of attitude.

6.3 A member asked how Ofcom distinguished between what could be described as mainstream programming and programmes which because of their nature had to contain offensive material. The answer was that context, likely expectation and the size of the audience all came into play. It was expected that editorial justification would cover this. Draft guidance on portrayal of disability would be shown to the committee for comment. The Chairman commented that he had not found a reference to portrayal in the code. Fran O'Brien said that the term may not have been used but was covered by 'discriminatory treatment or language'. Another member asked how the code would handle the issue of people with disabilities making jokes about disability. Fran O'Brien reported that a similar question had arisen about the use of 'chink' by Chinese actors. Ofcom would need to consider these matters in the light of any complaints that arose. A member pointed out that use of terms like 'the elderly' and 'the disabled' was not acceptable. These were terms often used by 'the man in the street' but Ofcom expected higher standards from broadcasters. Fran O'Brien explained that complaints were handled by Ofcom's Contact Centre, with a third referred to the Content and Standards team. Sometimes responses were sought from broadcasters and when complaints were upheld the broadcaster was required to publish the decision. Where fairness or privacy complaints were upheld there was the option of a requirement to broadcast decisions at a time or to an audience similar to that of the programme complained about. It was likely that from 2005 all broadcasters would be required to advise viewers on how to complain.

6.4 A member raised an issue for the section on dealing fairly with contributors. They proposed addition of a requirement to ask contributors whether they required any reasonable adjustments in order to facilitate their participation in a programme, eg provision of an interpreter. In such circumstances the onus should be on the broadcaster to make reasonable adjustments. This was unlikely to be covered by the Disability Discrimination Act since it was about a contributor seeking an adjustment rather than the situation of someone seeking a service from a service provider. Nor was it an employment relationship. If it was not a PSB it would not be covered by new public function duties. Fran O'Brien was happy to look at that but Ofcom would only be able to act if it resulted in unfairness to the person in the broadcasting of the programme. If the relevant adjustment was not made but there was no unfairness to the person concerned, Ofcom would not have the locus to act. The member suggested that in all likelihood there would be unfairness and raised the issue of informed consent and reasonable adjustments, to ensure that it could be given. Fran O'Brien welcomed advice in this area. She was advised also to take note of the direction on new disability discrimination legislation that was going through parliament.

6.5 Bob Twitchin asked where responsibility lay to ensure that people had information about how to complain and whether this related to the code. Fran O'Brien said that it was part of Ofcom's duties to enable citizen's to know how to complain. There had not been any perceived reduction in complaint levels since Ofcom had gained its powers and the regulator appeared to have a higher media profile than the predecessor regulators, ie consumers appeared to know how and where to complain.

6.6 A member raised due impartiality and instances where a disability issue arose in a programme but was not perceived as a disability issue by the programme maker. They had in mind a recent documentary and treatment of the issue of premature babies and those likely to be born with a disability. There was discussion of balance within a programme and over time. The member suggested that this was an issue for inclusion in guidance.

6.7 It was agreed that the points from discussion would be submitted to Ofcom as a committee response to the draft code. A member requested that this include general points about how to complain.

AP5 Bradley Brady to draft a note to Ofcom on broadcasting codes.

7.1 Alex Blowers gave an update on the telecoms review. The aim was to publish the Phase 2 consultation document in mid-November, it would set out broad principles and Ofcom's conceptual approach. A Phase 3 statement was expected to appear in the first quarter of 2005. There had been more than 100 responses to the Phase 1 consultation, with a number of important messages. Ofcom had to consider both citizen and consumer dimensions to telecoms regulation and we were no longer in the 'one size fits all' world that prevailed prior to BT privatization. It had been expected that regulation would gradually wither away, instead it had increased. There was no 'quick fix' but ways could be found to reduce the regulatory burden. Phase 1 had raised structural separation of BT. In Phase 2, Ofcom would look at a range of options including the option of imposing genuine equivalence for third parties, ie requiring that the same terms that BT's wholesale business offered to its retail operation were offered to third parties , and Ofcom would signal a willingness to withdraw from regulation wherever possible . BT appeared to recognize the need to address equivalence and had appointed a Director of Equivalence. Regulatory policy had tended to have legal and economic drivers and policies to 'fix' the supply side. Ofcom recognized that more was required on the demand side if consumers were to make informed decisions. Although there would be a separate consultation on universal service, the Phase 2 document would say that universal service needed to change over time with societal expectations. He confirmed that it was not within Ofcom's gift to change universal service obligations. This was a matter for the European Commission but there would be an EU review in 2005. He commented that Ofcom's consumer research indicated that there remained a significant number of people including many older and disabled people that were not benefiting from the services enjoyed by the majority.

7.2 Members raised a number of telecoms related concerns. A member mentioned consumers' difficulties with silent calls generated by power dialers and nuisance calls telling consumers they had won prizes and directing them to call high charging premium rate numbers. Another member believed that BT should be required to phase out old technology, eg remaining hard-wired phones and ISDN, and promote use of newer technology that was more likely to be accessible to disabled people. A further member was concerned about BT plans to withdraw public payphones.

7.3 On scams and abuses, Ofcom was aware of them and was taking steps to close loopholes. BT had plans to roll out an IP-based 'twenty-first century' network over the next few years. All customers would be migrated to that network and there would be real benefits, ie scope for far more service innovation, including applications to address specific niche requirements. Bob Twitchin commented that there would still remain a need to protect the functionality of current services for disabled people. A member suggested that Ofcom could produce guidelines to ensure that systems were not changed in a way that would disadvantage certain groups. Withdrawal of public payphones would be raised in discussion of Ofcom's consultation on universal service.

8. Universal Service Review

8.1 Neil Buckley gave an update on Ofcom's review of universal service. Recommendations had been made to the Ofcom Board and the aim was to publish the consultation in November. A number of issues would be cross-referenced with Phase 2 of the telecoms review and the two consultations would appear at roughly the same time. Public payphones were already high on the political agenda and Ofcom would be consulting on a new BT social telephony product. The consultation would be longer than usual, to take account of the Christmas period.

8.2 A member asked whether Ofcom was aware of the development of a line card that could be used for Voice over IP (VoIP) services. The card would automatically 'power up' and avoid a current problem with VoIP services, ie the inability to contact the emergency services during a power cut. Another member raised concern about withdrawal of public payphones, since it was a universal services issue. A further member commented that in the context of emerging VoIP services the review appeared to be backward looking, ie based on traditional fixed telephony.

8.3 Neil Buckley commented that Ofcom was consulting on VoIP services, calling them 'New voice services'. The current suggestion was that they would not be the subject of additional regulation since they were not publicly available telephone services. The consultation raised consumer protection issues. BT had a clear legal obligation to provide public payphones and Ofcom would welcome views on how that obligation should be interpreted. It was agreed that the question about the line card would be taken 'off line'.

8.4 Bob Twitchin said that the consultation would be helped by Ofcom's decision to post responses on its website as soon as they were received. He reported that members of the Telecoms Industry Forum on Disability and Ageing were keen to meet with consumer stakeholders to discuss the review.

8.5 Bradley Brady would set up meetings for the committees' subgroups on the telecoms and the universal reviews. Each group would produce a paper for discussion at the next meeting, alongside discussion of the two consultation documents.

AP6 Frank Phillips to follow up Jonathan Kaye's question about a VoIP line card.
AP7 Bradley Brady to set up telecoms and universal service sub-group meetings; each sub-group to submit a paper for discussion at the next meeting.

9. Ofcom website accessibility

9.1 A new version of Ofcom's website would go live on 15 October, with the ability to change font sizes and contrasts. More work to improve the site would be done in the coming months. The Ofcom web team would welcome comments from members of the committee.

10. Any other business

10.1 A member wished to raise Ofcom's duties under Section 27 of the Communications Act 2003 related to equality of opportunity in training and employment, including equalisation of opportunities for people who were disabled. Bradley Brady said that Ofcom was gathering relevant statistics, it was working on a 'tool kit' for broadcasters to provide different forms of guidance on how to increase the diversity of their workforces and Ofcom's Juliette Brown would be invited to discuss this with the committee in January.

10.2 A member expressed surprise that Ofcom's New Voice Services consultation had not been on the agenda. Bradley Brady said that the committee had received an information note at the July meeting and agreed to keep a 'watching brief'. It had been raised in the committee's monthly bulletin but there had been no comment from members. As the committee had indicated that it wished to have shorter agendas, it was not possible to cover every current issue at a meeting. However, if there had been a request from members to discuss the New voice services consultation it would have been on the agenda.

10.3 There was a brief review of the meeting. There had been no PowerPoint presentations and members were happy not to have slide presentations unless necessary. A member commented that because of the long intervals between meetings it would be useful to summarise previous discussion at the start of agenda items. The acoustics had made discussion difficult and thought should be given to improve this.

AP8 Bradley Brady to invite Juliette Brown to the January meeting.

Chairman


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