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12|09|05

Minutes Of The Thirtieth Meeting Of The Ofcom Content Board Held At Riverside House On 12 and 13 September 2005

Present

Richard Hooper - Chairman
Sara Nathan Deputy - Chairman
Sue Balsom - Member
Floella Benjamin - Member
Kevin Carey - Member
Jonathan Edwards - Member
Pam Giddy - Member
Rosemary Kelly - Member
Matthew MacIver - Member
Kath Worrall - Member
Kip Meek - Senior Partner, Competition and Content (Ofcom) (minutes 15 – 56)
Adam Singer - Member (minutes 1 – 51)
Tim Suter - Partner, Content and Standards (Ofcom) (minutes 1-13, 15–28 & 35-58)

In Attendance

[Withheld from published minutes]

Radio Review: Phase II Report

1. [Withheld from published minutes] and [Withheld from published minutes] presented paper CB 99(05) which gave the Content Board an overview of the findings of the audience research undertaken for phase 2 of the Radio Review and proposed roles for each sector – BBC, national commercial, local commercial and community. Content Board Members were reminded of the conclusions from the phase 1 of the Radio Review in relation to analogue commercial, digital radio, the proposed strategic framework and public purposes.

2. In relation to the strategic framework, Members NOTED that the aim was to allow for the market to provide as wide a range of sound radio services as possible and develop complementary new and innovative multimedia services to serve consumers’ needs. Members NOTED that it was felt that this would allow Ofcom to withdraw from regulation wherever possible, while ensuring the provision of those services valued by society, which the market may not provide fully. It was NOTED that the framework was intended:

3. The Content Board NOTED that the six public purposes proposed were:

It was NOTED that these public purposes would apply to the radio market as a whole, but would not be delivered by every sector. It was NOTED that these were specific areas which the executive felt may require market intervention in order to ensure plurality of provision.

4. The Content Board NOTED what the radio market might look like in 10-15 years:

5. The Content Board considered this future view of the radio market and queried whether the requirement for RSLs for other purposes (e.g. radio enthusiasts) should also be included; although it was felt that this requirement might diminish over time. Consideration was given to what types of commercial national stations there might be, and it was NOTED that the commercial national stations would need to fit with the public purposes and have a plurality of provision. [Withheld from published minutes]. Members SUGGESTED that the paper should be re-drafted in certain areas to focus on the issues of devolution more fully. It was confirmed that the radio review would identify present gaps in provision, such as children’s radio, with the intention, as far as possible, of encouraging the market to make such provision. Members considered the possible effects of future technology on the provision of radio, and it was SUGGESTED that more account be taken of these possible effects by the executive. Some caution was expressed concerning the wording of the review on page 98, where it was felt the drafting had become more specific than elsewhere in the review.

6. Members considered what would need to be done in order to facilitate the future state of the radio market as presented. Members NOTED that the commercial radio industry itself would need to innovate and adapt if it was to take advantage of the opportunities offered by the strategy, but that there were some specific things that Ofcom and Government would need to do to make the strategy possible. In relation to spectrum it was NOTED that Ofcom would need to allocate more spectrum to allow for more national UK and community stations and to allow for every area of the UK to have the potential for a local DAB multiplex. In addition it was felt that DRM technology should be investigated. In relation to content regulation, it was NOTED that the regulatory framework would need to adapt over time to ensure that it protected the public purposes of commercial radio, particularly the provision of local programming. [Withheld from published minutes]. In addition, Members NOTED that as plurality of provision for some of the purposes may require intervention to ensure delivery, it had been suggested that the Public Service Publisher should include consideration of radio. Members were supportive of giving consideration to a PSP which encompassed radio. It was FELT that changes in technology and the strength of the BBC could put strain on the successfulness of commercial stations and could prove to be barriers to entry into the market. In such areas it was felt that a PSP would be beneficial to the marketplace.

7. Following consideration of the issues identified in the paper and presentation Members were requested to send any particular comments in relation to the drafting of the report to [Withheld from published minutes] by 13 September 2005.

ITV, Five and GMTV change of control reviews

8. [Withheld from published minutes] presented paper CB 103(05) which updated Members in relation to the conclusions of the change of control reviews for Channel 3 regional licensees, Channel 5 and GMTV. Members NOTED that Ofcom was required to review the effects or likely effects of the changes of control on various matters listed in the Act including original production, news, current affairs and in the case of ITV the quality and range of programmes made available by licensees to the network. It was NOTED that if Ofcom was to find that a change of control is or would be prejudicial to any of the items in the Act it must, or in some cases may, vary the relevant licence to safeguard the position which existed before the change of control.

9. In relation to ITV, Members NOTED that the Ofcom Board had considered the initial conclusions of the Channel 3 reviews in October 2004 and endorsed the view that, with one possible exception, the merger of Carlton and Granada was not prejudicial. [Withheld from published minutes]. Members NOTED that following discussion with ITV plc, receipt of assurances from ITV plc, receipt of further legal advice and a review of all the available evidence, it had been concluded that there was insufficient evidence to conclude that the changes had clearly resulted from the merger as opposed to being the result of the ongoing rationalisation of facilities within ITV. It had also been noted that new measures had been announced as a result of the PSB review which are designed to increase the amount and geographical spread of network production outside the M25 including increases in quotas and the creation of a new Regional Partnership Fund. The Content Board NOTED that it had therefore been concluded that the merger of Carlton and Granada was not prejudicial to the quality and range of programmes made available by Central and Meridian to the network. In response to a query, Members NOTED that in relation to the Regional Partnership Fund ITV plc had conducted a round of regional roadshows to inform independent producers, and the first network commissions had been made.

10. In relation to Five, Members NOTED that RTL had given assurances that the change of control would not be prejudicial in any way to Five, or to the quality, range and character of its service; and that any changes in the service would be made as a result of editorial decisions and not as a result of the change of control. The Content Board NOTED that having taken the assurances and other evidence into consideration it had been concluded that there were no grounds for believing that RTL’s consolidated ownership would adversely affect the service.

11. In relation to GMTV, Members NOTED that ITV plc had given assurances that no material change in any of the areas covered by the Act had taken place so far compared with the period before the change of control; nor was any such change planned. The Content Board NOTED that having taken the assurances and other evidence into consideration it had been concluded that there were no grounds for believing that the change in ownership would adversely affect the service.

12. The Content Board NOTED that the reports to be published on the reviews had been drafted which would be shown to ITV plc and RTL as appropriate to check their factual accuracy, prior to publication in October 2005.

DRM/DAB

13. The Content Board NOTED a presentation and demonstration of DRM/DAB technology given by [Withheld from published minutes] and [Withheld from published minutes].

High Definition Television

14. The Content Board NOTED a presentation and demonstration of high definition television given by [Withheld from published minutes] and [Withheld from published minutes]. The presentation explored how Sky’s choice of HDTV technology might affect other content creators, broadcasters, and consumer equipment manufacturers and how a growth in HDTV services and flat panel displays might affect limited capacity DTT and IPTV platforms, which may be unable to support HDTV in the short to medium term, and the potential impact of Sky HDTV services on other stakeholders in the digital television industry.

Minutes of the Meetings held on 18 &19 July 2005 (Content Board Minutes 29(05)) and Matters Arising

15. The minutes of the Content Board meeting held on 18/19 July 2005 were AGREED. [Withheld from published minutes].

Content and Standards Group Report

16. Tim Suter updated Members in relation to current Content and Standards people and policy issues. Members NOTED an update in relation to progress which had been made with the Ofcom restructuring announced at the July Content Board and a number of new colleagues who had joined the Content and Standards group. In relation to policy, Members NOTED that the TWF Conference was to be held shortly in Liverpool. In response to a query, it was AGREED that Tim Suter would investigate Ofcom’s involvement in the Creative Economy Conference to be held in early October 2005. It was NOTED that the group was working hard on the 2005/6 business plan, which would include areas such as the future funding of television, local television, the role of EPGs and a review of the Access Services Code.

17. Members NOTED that a number of colleagues were currently working on preparing a case study, instigated by the Better Regulation Taskforce, on how Ofcom was set-up and how it worked, including any lessons learnt throughout the process. Members were REQUESTED to feed any comments they would like to contribute to the case study to Tim Suter. Members NOTED an update from Kevin Carey and Sue Balsom in relation to a discussion at the Ofcom Board on TWF, which they had attended. [Withheld from published minutes].

Rolling Forward Plan of Content Board Agendas

18. Members NOTED the schedule CB 101(05) which set out the rolling forward plan of the Content Board agenda to December 2005. Members NOTED that only two of the forthcoming items for consideration by the Content Board were items for decision.

Ofcom Board Meetings of 28 June and 12 July 2005

19. Kip Meek reported on the Ofcom Board meetings held on 28 June and 12 July 2005. The main points to note were that: [Withheld from published minutes]

20. Members raised a number of queries in relation to the Board discussion held on 12 July 2005 concerning the annual reports from the Advisory Committees and the Content Board. [Withheld from published minutes].

21. Members NOTED that a considerable amount of time had been set aside for a discussion and review of the Content Board at the Content Board away day in November 2005. However Members expressed some reservations at the length of time before this discussion would take place. It was NOTED that the facilitator for this awayday item would use the time to speak to all of the Members and prepare for the meeting. It was AGREED that the Chairman would send a note to the facilitator, the Ofcom Chairman and Chief Executive, to apprise them of the views which had been expressed by Members. It was NOTED that the facilitator would be requested to take on these views in preparation for the awayday.

Members’ Interests

22. No Member interests were declared for incorporation into the register of interests. The following Member interests were declared, not for incorporation into the register of interests:
[Withheld from published minutes].

Local Television and Interactive Services

23. [Withheld from published minutes] and [Withheld from published minutes] presented paper CB 102(05) which raised a number of issues for review in relation to the proposed approach and early thinking on digital local television and interactive services. Members NOTED that there was some potential for digital local television and interactive services, but that there were also problems. It was NOTED that digital technologies would create opportunities to provide richer, more engaging television and interactive services at local level and that these services could have substantial consumer and citizen value: enhanced access to local news and services; increased participation in community activity; greater community cohesion; employment and training. In addition, research suggested that audiences would be interested in more local services. However, Members NOTED that it was uncertain whether services that delivered these benefits would be commercially self-sustaining and that the true audience demand would be difficult to predict. In addition, the regulator’s role was unclear as DTT may not be the most effective delivery mechanism and Ofcom’s policy was that the use of spectrum should be determined through market mechanisms. Members NOTED that the executive had therefore concluded that further work was needed to determine the potential of digital local television and interactive services and the most appropriate way of delivering them in the context of Ofcom’s stated policies on PSB and spectrum management.

24. The Content Board NOTED that digital local television and interactive services could deliver a range of public benefits and that there were a number of reasons why Ofcom should think about the provision of such services now. It was NOTED that any policy with potential implications for spectrum allocation should be determined in time to feed into preparations for the Regional Radio Conference in 2006. Members NOTED that in order to determine Ofcom’s specific recommendation on DTT, it should be informed by an analysis of public value, alternative distribution options and commercial viability as well as competing uses for spectrum. The Content Board NOTED that there were several sources of interest in this area, from commercial operators, community media and local authorities/RDAs.

25. Members gave consideration to what would be the best way of providing local television and interactive services and considered the suitability of different platforms for delivering local television and interactive services. It was NOTED that DTT was not ideal for delivering local television and interactive services as there was insufficient interactive capability, too many competing uses, coverage areas were driven by transmitter location and not real community boundaries and it could require expensive upgrades to existing transmitter equipment. Members NOTED that cable and broadband could provide much richer interactivity and on-demand capability and that satellite had potential although might prove to be expensive. However, Members NOTED that the executive felt that DTT might still be an important part of delivering public value and had concluded that further work needed to be done to evaluate costs and benefits of alternative distribution platforms.

26. Members considered the options for market intervention. It was NOTED that in relation to access to spectrum for digital terrestrial transmission, there was a requirement to be consistent with Ofcom policy on spectrum management, and therefore the market should determine use wherever possible. Members were divided in their views as to whether they felt the market would require intervention in order to ensure provision of services. It was felt that there were good reasons for intervening in the market to ensure provision, which could be achieved through direct public funding or through licence privileges. Members queried whether there was an opportunity for the Government to establish a Community Media Fund, similar to the Community Radio Fund which had already been established. Members NOTED a number of arguments against intervention, such as: that the market could deliver such services; that there may be alternative uses of public resources, including spectrum, with greater value; that intervention was not justified by audience demand, especially in a fully digital world; and that DTT was not the most effective tool for delivering public purposes. It was NOTED that the executive was considering a number of questions which needed to be considered in this area and their thoughts on possible early answers to those questions.

27. In relation to the intended work plan of the executive in this area, Members NOTED that the executive intended to:

It was NOTED that the executive intended to bring the policy options to the Content Board for consideration in November, with the report being published before Christmas. Members NOTED that they would be invited to take part in the stakeholder seminar on 1 November.

28. In response to a query, Members NOTED that the focus of the project was digital local media services, with linear local television being one possibility but not the sole focus of the project. It was AGREED that any future documentation/presentation would seek to make this distinction clear at every point, and avoid use of the term 'local tv' as a descriptor on its own of the project. It was NOTED that a decision had been made to focus the project on visual content, and not to cover radio, which was dealt with separately. It was NOTED that the project’s intention was to open up the debate on a range of services in this area. In response to a query, Members NOTED that the executive were engaging with a number of higher education bodies in relation to the project. Members NOTED that the BBC was imminently launching a West Midlands pilot for local services. Ofcom’s knowledge of the BBC’s plans in Scotland to work with higher education bodies was QUERIED.

Production Sector Review: Results of independent production sector survey

29. [Withheld from published minutes] and [Withheld from published minutes] presented paper CB 106(05) which advised Members of the results of the statistical analysis of the UK TV production sector, carried out as part of the Television Production Sector Review (TPSR) – drawing on a major census carried out jointly with Pact, and data collected from broadcasters. Members NOTED that the aim of the executive was to fill the evidence gap in the production sector, and develop the first comprehensive view of industry activity and trends. Members NOTED that a number of propositions had been developed by the executive on the basis of the work undertaken so far, which were outlined in the paper.

30. In relation to the results of the statistical analysis, Members NOTED a number of key conclusions. In respect of the general market overview it was NOTED that: [Withheld from published minutes]

31. In respect of the external production sector it was NOTED that: [Withheld from published minutes]

32. In respect of out of London production, it was NOTED that: [Withheld from published minutes]

33. Members NOTED the next steps which were being undertaken in developing conclusions of the review. It was NOTED that the project team would return to the Content Board to discuss the substantive policy proposals in October 2005.

34. The Members considered the information contained within the presentation and gave their feedback on the analysis to the executive. Members gave consideration to the case for market interference in this area, and NOTED that Ofcom would need to have a policy justification for market interference. [Withheld from published minutes].

35. [Withheld from published minutes].

36. [Withheld from published minutes].

37. The Content Board gave consideration to the possible effect of a broadcaster moving its commissioning base out of London. It was NOTED that the conclusion of the Ofcom expert panel in this area was that a sustainable position for out of London production could not be achieved unless a broadcaster moved its base out of London. Members NOTED that the executive believed that such a change would make a large difference for the industry. It was NOTED that an out of London based broadcaster would bring about other social gains, such as taking advantage of local media, as well as ensuring regionally orientated programming. It was REQUESTED that a separate summary for Wales be produced as part of the analysis. In response to a query, it was NOTED that the executive had not given consideration to the current 25% quota requirement in relation to independent production.

38. [Withheld from published minutes].

Media Literacy: Six Month Report

39. Tim Suter and [Withheld from published minutes] presented paper CB 107(05) which informed Members of the activity undertaken in relation to the promotion of media literacy during the first half of the 2005/6 year. Members NOTED the contents of the report and felt that it was an interesting and useful document. In response to a query, it was NOTED that, in respect of labelling, the methodology had been developed and the pilot was being undertaken to identify how people use labelling in their homes. It was NOTED that a full analysis of the pilot would be brought to the Content Board in December 2005.

40. The Content Board NOTED that a commissioned research report on drivers for change of the coming years would be circulated to Content Board Members for information. Members were pleased to note that [Withheld from published minutes] would be giving a presentation on media literacy at the Education Technology Conference. It was AGREED that a copy of the ‘Now Press the Red Button’ booklet and the media literacy bulletin would be circulated to Content Board Members on a regular basis. It was AGREED that some thought would be given to involving members in media literacy events. It was REQUESTED that the reference to the Advisory Committees on page 9 of the report be amended to include reference to the Content Board.

41. In response to a query, the Content Board NOTED that there were a number of valuable elements to the media literacy work which were all being kept under review. It was recognised that there were risks with this approach and that the situation would be kept under review. In response to a query, it was NOTED that it was important to the media literacy project to ensure that the views, needs and ultimately ways of addressing the needs of culturally diverse groups were identified. It was NOTED that the project team had tried to embed cultural issues in all of the media literacy work and that an analysis should be conducted to identify to what extent this had been achieved. It was AGREED that Floella Benjamin would provide feedback to the project team in this area.

42. In response to a query, Members NOTED that in order to evaluate how effective the nations and regions Help the Aged workshops had been, the provider of the workshop had been requested to ask the delegates for feedback in relation to the success of the day and what they have done since. It was NOTED that this evaluation was currently being completed and would be available after the last workshop to be held in London. In response to a query, it was NOTED that a representative of each of the National offices had been recruited as a multi media champion.

Content and Standards Report

43. [Withheld from published minutes] updated the Content Board on programmes which had been attracting complaints. The Content Board was also updated on the status of current Fairness and Content Sanctions cases.

Fairness and Privacy Procedures

44. [Withheld from published minutes] and [Withheld from published minutes] presented paper CB 108(05) which had been drafted in relation to Ofcom’s specific duty to apply adequate protection against unfairness or the unwarranted infringement of privacy. Members NOTED that the current procedures for the consideration and adjudication of fairness and privacy complaints had been, to some extent, inherited from the predecessor regulators with some significant modifications. These guidelines were adopted on an interim basis having been approved by the Boards early in 2004 following a short public consultation and on the understanding that Ofcom would conduct a full consultation at a later stage (having had the benefit of experiencing how the procedures work in practice). It was NOTED that these procedures were perceived by some to be cumbersome and therefore the executive were seeking to identify in what areas they were effective and less effective, and then propose and finally implement appropriate new procedures. It was NOTED that the intention of the executive was to prepare a paper for consultation with stakeholders based on the recommendations of the Content Board in respect of the current guidelines and a number of issues which required consideration.

45. Members gave some consideration to the current guidelines and the issues identified in the paper and gave their feedback to the executive. In respect of alternative resolution, Members considered whether Ofcom should consult on a more formal procedure for the appropriate resolution of complaints at the beginning of the complaints handling procedure. Members NOTED that there was no specific statutory provision for this, however recognised that it would provide an opportunity to resolve complaints, by way of an apology or correction or other subsequent action taken by the broadcaster to provide redress or remedy if it were appropriate, without the need for adjudication by Ofcom. Members considered carefully the advantages and disadvantages of such a procedure and RECOMMENDED that Ofcom should consult on a more formal procedure for the appropriate resolution of complaints at the beginning of the complaints handling procedure. However, Members recommended that if such a procedure were put in place, published timeframes would need to be set and adhered to. [Withheld from published minutes]

46. In respect of the procedure for reviews of executive adjudications, Members NOTED that both parties are provided with a ‘Provisional Adjudication’ and that if a party requests a review of the provisional adjudication, a more senior member of the executive considered whether or not the decision should be reviewed. It was NOTED that if that member of the executive considered that the decision may be potentially flawed it would be referred to Fairness Committee for review. Members RECOMMENDED that the consultation should advocate this practice remain.

47. In respect of the procedure for entertainment decisions, Members NOTED that almost all were made by the executive, with the aid of legal advice where necessary. It was NOTED that if a party requested a review of an entertainment decision, a more senior member of the executive considered whether or not the decision should be reviewed by the Fairness Committee. It was NOTED that if that member of the executive considered that the decision may be potentially flawed it was referred to Fairness Committee for review, which can cause delay during the early stages of the consideration process. Members NOTED that the suggestion of the executive was that a senior member of the executive (not already involved in the case) might in certain circumstances (where it was obvious that the original decision was flawed) be able to review an entertainment decision (without the need to refer to the Fairness Committee). Members considered that such cases were very rare and felt that dissatisfied parties welcomed the role of the Fairness Committee (Ofcom's most senior decision making body with regard to fairness and privacy cases) in reviewing decisions of the executive. Therefore, Members RECOMMENDED that this practice should not be changed in the proposed consultation. Members also considered how the guidelines described the grounds for review, and NOTED that the current “judicial review” grounds had proved confusing to most parties. Members RECOMMENDED that different grounds for review should be considered in the consultation.

48. In respect of the procedure for written submissions, Members considered whether Ofcom should take a firmer line on limiting written submissions to two rounds in all but the most exceptional cases. The Content Board NOTED that currently complainants tended to make unsolicited submissions following the close of the written stages, which were admitted for consideration if they appeared to be relevant, significant and could not have been produced earlier. Members considered carefully the advantages and disadvantages of limiting written submissions and RECOMMENDED that written submissions be limited to two rounds in all but the most exceptional cases and that this limit be made clear in the guidelines.

49. The Content Board gave consideration to whether a verbatim transcript should be produced for each Fairness and Privacy Hearing. [Withheld from published minutes]. As an alternative method of recording the outcome of the meeting, Members considered whether a formal minute should be prepared. It was NOTED that all current attendees at the meeting had a role to fulfil and were not in a position to draft minutes. Members felt that the attendance of a formal minute taker would be less intrusive and therefore RECOMMENDED that if it was necessary for an independent record of the meeting to be made a member of the Secretariat should attend to record a formal minute.

50. Members considered whether the parties to a complaint should always (even if there was no hearing) be given a bound set of all papers that would be before the Fairness Committee or Executive Fairness Group (including covering case note but excluding legal advice). Members NOTED that currently papers were only provided for use by parties at a hearing. [Withheld from published minutes]. It was therefore RECOMMENDED that the consultation would propose that the situation would remain, where papers were only provided for use by parties at a hearing.

51. The Content Board NOTED that the executive planned to have a pre-consultation meeting with stakeholders later in September 2005 before going out to full consultation. It was NOTED that following the pre-consultation discussions, a draft consultation document, including proposed procedures, would be presented to the Content Board for sign off in October 2005.

Radio Licensing Committee (25 July & 5 September 2005)

52. Pam Giddy and Matthew MacIver updated Members on the Radio Licensing Committee (RLC) meetings held on 25 July and 5 September 2005; when a decision had been made on the award of the Solent, Torbay and Swindon local commercial FM radio licences. In addition the Committee had made an initial consideration of the applications for the Barrow-in-Furness local commercial FM radio licence. A decision was made on the West Yorkshire Area and the Greater Manchester Area Community radio licences and preliminary discussions were held on the Greater London Area, West Midlands Area and Northern Ireland Community radio licences. The Committee had also made a decision on two format change requests for Kix 96 (Coventry) and Galaxy 102.2 (Birmingham) and noted a new format change request from BCR & Quay West (Somerset). In addition Members NOTED that Kath Worrall had attended the draw for RSL licences for Ramadan, which had been organised due to the over subscription.

Matters for External Communication

53. [Withheld from published minutes] outlined Ofcom’s recent activities and forthcoming announcements.

Any other business

a) Quiz Channels

54. A request was made that if possible Members viewed some content broadcast by the satellite Quiz channels.

b) General Election Paper

55. A Member expressed their interest in the contents of the General Election paper which had been circulated to Members in relation to content and media literacy issues, and REQUESTED that some time be made available at a future Content Board for consideration of the issues raised.

c) Pat Loughrey Lunch

56. Members NOTED that the Nations and Regions Content Board Members had attended a lunch with the BBC and NOTED that the discussed had centred on the production sector survey. It was REQUESTED that Ofcom hosted a similar lunch in the future.

Media Regulation in Germany

57. [Withheld from published minutes], Assistant to the President of the Bavarian broadcasting regulator presented paper CB 116(05) which updated Members in relation to Broadcasting Regulation in Germany, focusing on topics with clear current relevance in the UK: internet, digital switchover and broadcast standards and highlighting differences between Germany and the UK. It was NOTED that the major issues in regulation in Germany currently were maintaining programme standards, the regulation of advertising, the funding of commercial broadcasting, digitisation, the control of spectrum and globalisation. In addition, Members NOTED that a key area of major concern was controlling the internet in relation to the protection of minors and human dignity. Members were interested to NOTE that the internet was regulated in Germany and how the German regulator was attempting to undertake this regulation. The Content Board thanked [Withheld from published minutes] for an interesting and thought provoking presentation.

Date of next meeting

58. It was NOTED that the next meeting would be held on Monday 10 and Tuesday 11 October 2005 at Riverside House and would commence at 3pm.

19 September 2005


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