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09|10|06

Minutes Of The Forty Third Meeting Of The Ofcom Content Board Held At Riverside House, London On 9 & 10 October 2006

Present

Philip Graf Chairman
Adam Singer Deputy Chairman
Millie Banerjee Member
Richard Ayre Member (minutes 1 to 13 & 22 to 54 only)
Sue Balsom Member
Pam Giddy Member
Anthony Lilley Member (minute 1 to 20 only)
Kip Meek Chief Policy Partner (Ofcom) (minute 4 to 43 only)
Paul Moore Member
Tim Suter Partner, Content and Standards (Ofcom)
Joyce Taylor Member
Kath Worrall Member

In Attendance

Graham Howell Secretary to the Corporation (minute 4 to 20 & 30 to 54 only)
[witheld from published minutes] Advisory Committee for Older & Disabled People (ACOD) (minute 47 to 49 only)
[witheld from published minutes] Member, Advisory Committee for Older & Disabled People (ACOD) (minute 47 to 49 only)
[witheld from published minutes] Acting Chair, Advisory Committee for Older & Disabled People (ACOD) (minute 47 to 49 only)
[witheld from published minutes] Acting Chair, Broadcast Training & Skills Regulator (BTSR) (minute 44 to 46 only)
[witheld from published minutes] Broadcast Training & Skills Regulator (BTSR) (minute 44 to 46 only)
Other Ofcom Colleagues

Strategic Framework Project

1. Members RECIEVED a presentation on the policy aspects of the Strategic Framework Review – regulating for convergence – which considered the consumer and market trends within the sector, the implications for Ofcom’s approach to regulation and priorities for the next three years.

2. Members NOTED that the project had been estabished to provide a clear focus for the next three years of Ofcom’s work and to help in developing the priorities for 2007/08. In addition Members NOTED that the questions raised within the project would be looked at further during the annual planning and Star Chamber processes.

3. As a result of the presentation Members posed the following questions or comments:

One Member REQUESTED further information regarding the %’s highlighted on Slide 28.
It was QUERIED whether or not Ofcom’s assumption regarding broadband speed availability was correct.
It was SUGGESTED that the vocabulary be changed from ‘social outcome’ to ‘citizenship’. This was NOTED.
One Member HIGHLIGHTED the importance of access and content and that the focus should be moved to this from platforms. Further it was SUGGESTED that access and content be divided into two debates. These points were NOTED. In response it was stated that the project must consider platforms as this was what the current regulatory and statutory framework was based on.
Members HIGHLIGHTED the ongoing need for adequate protection against harm and offence. Members ACKNOWLEDGED that the need for media literacy was likely to become more important to allow consumers to feel empowered and protected.

4. Members were REQUESTED to offer any further comments regarding the project to the Project Team outside of the meeting, and Content Board members would also be attending the Strategy Day planned for 18 October.

Convergent Media

5. Members RECEIVED a presentation which looked at how the current model of content regulation should evolve to reflect the pressures of convergence and proposed a new approach, and possible implications, to the regulation of AV services.

6. As a result of the presentation, Members made the following comments:

Members QUESTIONED why it was proposed to only have statutory regulation for free-to-air channels. It was NOTED in response that these channels had similar characteristics i.e. no PINs or EPGs and that these channels required management, particularly with regard to the risks of harmful content.
Members QUESTIONED why there was no reference to demonstrating impartiality in news. It was NOTED in response that impartiality was a key quality outcome which Ofcom needed to consider how to appropriately apply and to whom. It was further NOTED that this was an important aspect of the ongoing ‘Future of News’ project which was currently underway and would be presented to the Content Board in the near future.

7. Members particularly NOTED the implications of the approach to regulating for harm and offence as well as securing future fairness and privacy protection. Members NOTED the emphasis that would need to be placed on media literacy and ACKNOWLEDGED that securing public literacy would not protect those who remained vulnerable or who are literate but chose not to exercise their knowledge. Members NOTED that at present many viewers managed their viewing choices using the published programme schedule; however this may not be a suitable method in the future.

8. Following discussion, Members were SUPPORTIVE of the proposal for a new regulatory framework.

Media Literacy

9. Members RECEIVED a paper on the proposed first piece of qualitative research arising from the findings of the media literacy audit. Members NOTED that soundings had been taken from industry and many comments had been received back from stakeholders. Members also NOTED how this project fitted with the work being undertaken on convergent media.

10. Members commented on the scope and methodology as requested:

Members were pleased to see brands included in the research and ASKED why brands online would be explored. It was NOTED in response that there was much brand transference i.e. BBC on television and the BBC website and that many people do use both and have expectations for brand equivalence online.
Members ASKED whether it was possible to ascertain people’s views on free-to-air content regulation against online. This was NOTED.
Members COMMENTED that consumers and contributors needed to be considered within the research particularly with regard to the internet as some do not see themselves as users of the internet, but driving it. This was NOTED.
Members ASKED whether the research would include people’s understanding of the law i.e. copyright, pornography etc. It was RESPONDED that it would.
Members ASKED whether it was possible to look at why people treat newspapers in a different way to the internet and whether this could be tracked to see if views were changing. It was NOTED in response that the team would ascertain if any such work had been carried out before and, if not, would include it in the scope of the tracking exercise.

Participation TV

11. Members RECEIVED a paper highlighting a proposal to consult on whether the changing nature of Participation TV (quizzes, babe-style services and psychic TV), with its increasing reliance on (and in some cases dominance) by premium-rate telephony, meant that Ofcom should consider re-categorising some of these television services from programming (editorial) to teleshopping.

12. Members NOTED that the consultation would focus on the line drawn between programming and teleshopping. Members were BRIEFED on the routes available for broadcasters. If, after the consultation, these services, as currently run, should be classified as teleshopping then the licensees would have two options. They could either be re-designated and be regulated under the Advertising Code by the ASA or change the way they are produced and fall under Ofcom’s remit under the Broadcasting Code. Members NOTED the difficulties some services would have with complying with the Advertising Code as, for example, the advertising of live psychic services and adult sex lines unencrypted is prohibited. The consequence would be that these broadcast services, if re-designated as teleshopping, could not continue to broadcast as currently formatted. If these channels were fundamentally about financial transactions it was NOTED that the Advertising Code would give greater consumer protection and may be a more appropriate way of regulating them. It was also NOTED that since some of these services could not be advertised, it was arguable that the broadcasters were circumventing the advertising rules. Colleagues also explained that other competitors had complained to Ofcom that some Participation TV services were skewing the regulatory environment causing an unlevel playing field.

13. Following the discussion, Members AGREED that Ofcom should publish a consultation paper exploring further the issues raised.

Food & Drink Advertising to Children on Television

14. Members RECEIVED an update on the current consultation and the discussion held at the 5 September Ofcom Board. Members NOTED that since the last meeting of the Content Board colleagues had completed both the analysis of responses and substantive economic analysis. Further, Members NOTED that the Ofcom Board was due to consider all proposals at their meeting later in October with a view to pubishing a Statement or further consultation later in the Autumn.

15. Members RECEIVED a copy of the economic analysis and were provided with an explanation of what the analysis showed. Members NOTED that the highest impact on PSB channels and music channels was in the early evening and dedicated children’s channels have a high impact throughout the day.

16. Members also NOTED that the Executive had developed and analysed a further potential policy package – modified option 1 – which addressed a number of the issues raised within the deliberative research and is positioned between Ofcom’s ‘Option 1’ and the OLR options and includes tougher content rules, the use of nutrient profiling, the exclusion of HFSS advertising in preschool children’s programmes and programmes of particular appeal to children aged 4-15. It was NOTED that the ‘modified Option 1’ had significantly greater child impacts but less costs.

17. Members NOTED that the Ofcom Board felt that the modified option may better fulfill Ofcom’s regulatory objectives and that legal advice was currently being sought regarding consultation.

18. Members NOTED that their views on the Content Rules, discussed at the last meeting, were passed back to the main Ofcom Board and that subsequent meetings with BCAP had been held. Members NOTED that BCAP felt that they had done a sufficient amount to meet Ofcom’s requirements and were reluctant to undertake more. If Ofcom wished BCAP to strengthen the Content Rules further it may mean directing them.

19. As a result of the options presented, Members raised the following questions / comments:

Members NOTED that if Ofcom was minded to go for indexing for 4-15 year olds, it may be sensible to align this to the Content Rules. Members DISCUSSED whether any inconsistencies between indexing and the Content Rules would cause further difficulties and it was CONSIDERED that even though there was logic in aligning the two it would not be overly problematic if they were not aligned.
Clarification of whether BCAP had categorically rejected nutrient profiling was requested. This was CONFIRMED.
Members COMMENTED on Rule 8.3.1 (c) of the ‘hybrid option’ and CONSIDERED that it was necessary to include an age range rather than stating ‘…at pre-school or primary children’ as this varies across the UK. Members reflected back to their comments made at the September Content Board meeting regarding age ranges.
Members COMMENTED on the use of brand equity and licensed characters and again reflected on their comments made at the September Content Board meeting. Members CONSIDERED that it was necessary to ensure that licensed characters could also endorse healthy foods.
Members ASKED whether broadcasters could use sponsorship to circumnavigate the advertising rules for HFSS foods. It was RESPONDED that the sponsorship rules would track the HFSS rules and therefore this would be prohibited.

20. Following discussion, Members CONSIDERED that the focus on what was best for the consumer needed to remain at the forefront of whatever further direction Ofcom took. Members CONSIDERED that the ‘hybrid’ proposal was best placed to serve the comments and concerns raised to date, with the EXCEPTION of Rule 8.3.1 (c) which Members CONSIDERED should not include the wording ‘…at pre-school or primary children’ but should include a defined age range.

21. It was AGREED that these comments would be fed back to the Ofcom Board at their next meeting.

BBC Memorandum of Understanding

22. Members RECEIVED the draft Memorandum of Understanding between Ofcom and the new BBC Trust.

23. Members NOTED the role and responsibilities of the Joint Steering Group, the new requirement for a ‘Public Value Test’ which the BBC Trust would be required to apply prior to making decisions involving significant changes to their UK public broadcasting services, and the provision of a Market Impact Assessment whenever a Public Value Test was to be applied.

24. Members NOTED that the first Market Impact Assessment was currently underway – for the BBC iplayer. The process had highlighted a number of issues, which included concerns raised by some about the short timescale to complete and respond to the consultation. Members NOTED that the consultation for the ‘iplayer’ had been extended by two weeks to allow longer response time and that in future timescales it could varied on a case by case basis.

25. Members ASKED whether the minutes of the Joint Steering Group meetings would be made public. It was CONFIRMED that once the minutes had been agreed by both the BBC Trust and Ofcom they would be published. Members also NOTED that Ofcom had received its first request under the Freedom of Information Act from Sky regarding the Market Impact Assessment for the iplayer.

26. As a result of the discussion, Members AGREED their formal advice to the Ofcom Board – that the Memorandum of Understanding between BBC Trust and Ofcom be approved. Members THANKED colleagues for the work undertaken in preparing the Memorandum.

Channel 5

27. Members RECIEVED a request from Five to reduce its annual quota requirement for original productions from 55% to 53% from next year and a reduction in the quota requirement for original productions transmitted in peak time from 42% to 40%. Members NOTED the main arguments both in favour and against each of the proposals.

28. Members made the following comments:

Members asked what the ‘system errors’ referred to on page two concerned. It was NOTED in response that Five had run a number of programmes which were counted as original productions on first transmission but when they were repeated the definition had changed which resulted in the programmes being miscounted. It was NOTED that Five narrrowly missed their quota by 1%.
Members asked whether there was an argument for redefining the term ‘peak’. It was NOTED in response that ‘peak’ was an industry standard.

29. Following discussion, Members AGREED their formal advice to the Ofcom Board – that the request to reduce the annual quota requirement for original productions from 55% to 53% from next year be APRROVED, taking into account the benefits, particularly those for the consumer, raised within the paper. Members AGREED that the request to reduce the quota requirement for original productions transmitted in peak time from 42% to 40% be DENIED, taking into account the disadvantages raised within the paper.

Gaelic Media Service Corporate Plan 2006/07

30. Members RECEIVED the GMS Corporate Plan for 2006/07 and NOTED an update from Vicki Nash on the recent meeting of the Gaelic Broadcasting Group which was overseeing the progress towards a new digital service in Scotland. It was NOTED that the Digital Service project forms an addendum to the Corporate Plan.

31. Members NOTED that the BBC would be required to undertake a Public Value Test and subsequent Market Impact Assessment on the Gaelic Digital Service.

32. [withheld from published minutes].

33. As a result of the discussion, Members AGREED their formal advice to the Ofcom Board – that the Gaelic Media Service Corporate Plan for 2006/07 should BE APPROVED subject to the nature of the governance arrangements between the BBC and the GMS being clarified (which should include issues relating to editorial policy and an exit strategy.)

Standards Report

34. The Content Board RECEIVED an update on programmes which had been attracting complaints, as well as an update on the status of current Fairness and Content Sanctions cases.

Content and Standards Group Report

35. Members were UPDATED in relation to current Content and Standards people and policy issues.

Members’ Interests

36. Richard Ayre reminded the Content Board that he was a member of the Food Standards Agency and would not participate in any discussions regarding the ongoing consultation into the advertising of food and drink products to children.

37. There were no other declarations for the Register.

Minutes of the Meeting held on 19 July 2006 (Content Board Minutes 41(06)) and Matters Arising

38. The minutes of the Content Board meeting held on 19 July 2006 were AGREED, with no amendments.

39. There were no matters arising from these minutes.

Rolling Forward Plan of Content Board Agendas

40. Members NOTED the schedule given to them which set out the rolling forward plan of the Content Board agenda to the end of December 2006.

41. Members were encouraged to contact the Executive if they felt that there were any other subjects / issues which they felt would be useful to discuss.

Current Ofcom Issues

42. Members RECEIVED a report on the current Ofcom issues and NOTED the minutes of Ofcom Board meetings held on 25 July and 5 September 2006.

Radio Licensing Committee Update

43. Members RECEIVED a report on the current issues discussed at the Radio Licensing Committee. There were no minutes for noting.

Broadcast Training & Skills Regulator (BTSR): activities and plans – 6 month update

44. Members RECEIVED an update on the work of the BTSR from [witheld from published minutes] and [witheld from published minutes] since they last attended the Content Board in April 2006. The following was fed back:

Diversity – Members NOTED that the Communications Act provided a duty to promote equal opportunities. While it was not part of the BTSR’s role to require broadcasters to undertake specific types of training, the BTSR would consider raising the issue of diversity training with broadcasters.
Compliance – Members NOTED that many broadcasters felt that compliance was a normal part of an employee’s competencies and should form part of his or her induction. Ofcom also organised workshops on compliance with the Broadcasting Code. The BTSR would consider whether these activities could be incorporated into the self-evaluation ‘grid’ which the BTSR asked broadcasters to complete regarding the training provided to their staff.
Self Evaluation ‘Grid’ – Members NOTED that the self-evaluation process was used to highlight what training / retraining and development opportunities are offered to staff in light of the organisation’s business plan, and the impact of these. Two rounds of consultation had been undertaken and four half-day workshops were planned to work through examples and explain terms used within the process to ensure that the first self evaluation round was as successful as possible. The BTSR AGREED to circulate the self-evaluation grid to Members for their information.
Awards Scheme – Members NOTED that the BTSR had explored a number of options to develop this scheme including building their own brand and ‘piggybacking’ onto an existing scheme e.g. the BAFTA’s or National Television Awards. It was NOTED that the National Training Awards were felt to be most appropriate and that the BTSR would have some control over the judging process. The detail of how it could work in practice was being discussed.

45. Members also NOTED an update on the recruitment of a new permanent Chairman with interviews taking place on 12 October 2006.

46. Members THANKED the BTSR for the informative update and AGREED a six monthly reporting cycle for the future as the co-regulatory relationship progressed.

Advisory Committee on Older and Disabled People (ACOD): Annual Report 2006/07

47. Members RECEIVED a presentation from [witheld from published minutes], [witheld from published minutes] and [witheld from published minutes] from the Advisory Committee on Older and Disabled People (ACOD) which highlighted ACOD’s main areas of work over the past twelve months, the new Disability Equality Duty which would come into effect from December 2006, the priorities identified by the Disability Equality Scheme and key challenges and questions for the future.

48. As a result of the presentation, Members made the following comments:

Members ASKED what research ACOD planned to publish in Spring 2007. It was NOTED in response that the research was qualitative into older and disabled people and their understanding of the impact of digital switchover. The research would build on earlier survey data gathered across the country on views towards digital switchover. It was planned that the research will begin in about a months time and aim for publication in April / May 2007. Members NOTED that the research would be partly paid for by Ofcom with additional funding from DigitalUK.
Members ASKED about ACOD’s strategy for engaging stakeholders. It was NOTED that the Committee was currently working on an Engagement strategy for implementation over the coming year, but that due to the nature of many ACOD Members’ employment, a successful network with stakeholders was already established.
Members CONSIDERED the third question raised in the presentation which asked “how do we [Ofcom] ensure disabled and older people are appropriately represented across television rather than in earmarked programming?”. Members AGREED that this cut to the heart of what it was possible for a regulator to achieve where it does not have regulatory purchase. Members NOTED that both TV and radio were still integral to society even in a world where the internet is now so widely available, and it could be argued were better media for dealing with such representation.

49. The Content Board THANKED the Members of ACOD for the presentation.

Papers for Information

50. Members NOTED the following papers for information:

ITV Regional Production Fund: update
Financial Review of Channel 4: scope of the review
Matters for external communication
Whitehaven and Channel 3 region changes

51. [withheld from published minutes].

Minutes for Noting

52. Members NOTED the minutes of the following meeting:

Consumer Panel – 18 July 2006

Any Other Business

53. There was no other business for discussion.

Date of Next Meeting

54. The next meeting of the Content Board was planned for Tuesday 7 November 2006 at Riverside House, London.

11 October 2006