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In its consultation statement of January 2006, following “Radio – Preparing for the Future (Phase Two): Implementing the Framework”, Ofcom outlined the principles involved in the regulation of local commercial radio Format changes.

Although a regime based on Formats is simple and transparent, there will always be occasions on which Formats need to change. Radio is a dynamic industry and Ofcom would want to see station Formats evolve in parallel with listeners’ changing preferences and interests, so long as the overall character of the service was not compromised. This is not to say that Ofcom will not also consider more fundamental changes, as required by statute. Local commercial radio stations are, by their nature, commercial businesses and if a Format fails to deliver a commercial return to the owner there may be a need to allow a more fundamental change.

The Broadcasting Act 1990 (as amended) sets out the circumstances in which Ofcom may consent to a departure from the Format of a service. One of four grounds specified in the Act must be met for Ofcom to be able to consent to the change:

a. that the departure would not substantially alter the character of the service. (Note: The legislation requires Ofcom to have regard to the selection of spoken material and music in programmes when determining what the character of the service in question is.);

b. that the departure would not narrow the range of programmes available by way of relevant independent radio services to persons living in the area or locality for which the service is licensed to be provided;

c. that, in the case of a local licence, the departure would be conducive to the maintenance or promotion of fair and effective competition in that area or locality; or

d. that, in the case of a local licence, there is evidence that, amongst persons living in that area or locality, there is a significant demand for, or significant support for, the change that would result from the departure.

We have developed a proposed framework for dealing with Format change requests. The internal Ofcom process follows a different path depending upon whether or not the request is for a substantial change. It is difficult to provide exact definitions of substantial in this context but, as a guide, the simplest test for a substantial change would be if the Character of Service, as defined in the Format, required a change in wording. This would undoubtedly signal such a fundamental change, but that should not be the only type of change that could be regarded as substantial.

If the change is substantial, Ofcom will consult on it (as required by the legislation) before passing it to the Ofcom Content Board for comment. The Radio Licensing Committee will take into account the Content Board’s comments in reaching a decision.

If the change is not substantial, Ofcom will not consult on it, but instead Ofcom colleagues may report to the Content Board for noting or comment. If required, the Radio Licensing Committee will take into account the report and any comments made by the Content Board before a decision is made.

It is important to note that the legislation leaves to Ofcom’s judgement the decision as to whether to permit a change, even if one of the statutory criteria is satisfied.

If one of the four statutory criteria is met, Ofcom applies the following criteria against which to judge whether a request should be approved or not:

The extent of the impact of the change on the character of the service . The judgement will be made on the basis of the overall “sound” of the station. Making this assessment may require the station’s content to be evaluated in detail in the context of the Format.

The time elapsed since the licence was awarded . Ofcom recognises that audiences change over time and stations need to adapt in parallel. Consequently, long established stations’ requests to modify their format are likely in general to be considered positively in the light of changing listener demands. However, a change soon after award would be inconsistent with the licensing process whereby stations define their own Formats in their licence application. As a general rule therefore no format changes will be permitted in the first two years after a station is launched and, in the period subsequent to that and up to five years after launch, only changes which do not substantially alter the station’s character will be permitted. After a five year period since launch, stations will be considered long established and so it is likely that in general a proposed change, where there is a strong evidentially-based argument for it, will be entertained. However, even in these circumstances applicants and licensees should not assume that they will be permitted to dispense with the fundamental proposition on which the licence award was based. If a substantial change is permitted at any stage, the RLC will, in general, reset the clock i.e. to measure ‘time since award’ as starting from the time when the substantial change is implemented. None of the above guidelines will be affected by any changes in ownership of a radio station.

• Considerations taken into account in making the original award. Where the original decision to make the award depended heavily on a specific commitment in the proposed Format, then Ofcom is likely to be reluctant to allow the change.
• The views of listeners and stakeholders. Where Ofcom issues a consultation about a proposed change, the views of listeners and stakeholders will be fully taken into account.
• The avoidance of ‘Format creep’. Ofcom will be alert to the possibility that a series of small changes to a Format could in aggregate amount to a substantial alteration to the character of a service. Consequently Ofcom will take into account the effect of a proposed change in the context of previous changes.
• Whether the station broadcasts on AM or FM. Ofcom has long recognised that AM stations are at a disadvantage in retaining listeners because of the relatively poor quality of the medium. Changes, including substantial changes, to AM station formats, will therefore be more willingly agreed than would be the case for FM stations.
• Whether the Format is one issued by the Radio Authority . Licences granted by the RAu may include formats which need to be brought up to date in the light of current Ofcom practice. We will take account of the history of such formats when considering change requests.

In addition, Ofcom may need to consider other statutory obligations in relation to a particular decision. For example, a proposed change that affects the amount of local material or locally-made programming would have to be considered in light of Ofcom's localness obligations under section 314 of the Communications Act.

If a station is considering applying to change its Format, it may wish to contact the Ofcom colleagues for advice as to what specific information would be required to support its case for change. This is likely to vary on a case-by-case basis.

In addition, each year the RLC will review the entire process of Format change. As well as assessing the way in which the process operates generally, the RLC will be examining two issues in particular – firstly, that licensees do not make a series of apparently minor changes to Formats which in aggregate constitute a substantial change which has not been properly scrutinised; and, secondly, that decisions on Format change made outside the RLC were properly made. The Content Board will also be informed of the outcome of this review.

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