Broadcasting Act 1990
The constitutional framework for UK commercial terrestrial television and local radio sectors during the 1980s was provided by the Broadcasting Act 1980 and consolidated in the Broadcasting Act 1981. The Cable and Broadcasting Act 1984 established the Cable Authority which was responsible both for promoting and regulating the new cable industry. The Independent Broadcasting Authority (IBA) had the function of providing television and radio services additional to those of the BBC and acted as both broadcaster and regulator. It did this by entering into contractual arrangements with ITV and Independent Local Radio franchisees whereby the contractors agreed to supply programmes for their regions and the IBA agreed to transmit them. The IBA had wide powers to preview programmes and approve schedules in advance of transmission. The IBA was also responsible for providing the service on Channel 4, its subsidiary, which was set up as a commissioning body, rather than a programme-maker, whose remit included catering for tastes and interests not generally provided for by ITV.
The Broadcasting Bill was published in December 1989 and the Broadcasting Act 1990 received Royal Assent in November 1990. The Act is complex and long, with 204 sections and 22 schedules. The Bill was heavily amended in its passage through Parliament; 2,673 amendments were discussed and 1,356 amendments were made, many during the House of Lords stage of the Bill.
The main changes effected by the 1990 Act, which repealed the broadcasting legislation of 1981 and 1984, in relation to UK commercial television are as follows:
Regulatory bodies. Two new regulatory bodies, the Independent Television Commission (ITC) and the Radio Authority, replaced the IBA and the Cable Authority. The ITC was made responsible for licensing and regulating (but not broadcasting) all commercial television services (including terrestrial, satellite and cable) except for S4C in Wales.
Licensing system. The previous contract-based regulatory system was replaced by a licensing system, with each licence subject to certain conditions with penalties for non-compliance. Licences for certain services were to be awarded by competitive tender to the highest bidder after a ‘quality threshold’ and sustainability test had been passed, except in ‘exceptional circumstances’. Cable and satellite programme licences were to be issued virtually on demand for services complying with the consumer protection requirements in ITC codes.
Transmission. The part of the IBA which was formerly responsible for the transmission of commercial broadcasting services was transferred to a separate company, National Transcommunications Ltd (NTL), prior to being privatised.
EC Directive. The Act implemented the EC Directive of 3 October 1989 on Television Broadcasting Television without frontiers which sets common minimum requirements on the basis of which transmission from one member state to another may not be interrupted by the receiving state except in limited circumstances. Article 4 of the Directive requires member states to ensure that “where practicable... broadcasters reserve for European works.. a majority proportion of their transmission time”.
Competition. The ITC has to ensure a general statutory duty to ensure fair and effective competition in the provision of services and that a wide range of services is available throughout the UK.
Channel 4 was to be provided by a new non-profit making body, the Channel Four Corporation, under licence from the ITC.
Channel 5. Provision was made for the licensing of a new terrestrial television service, Channel 5.
Ownership. Complex restrictions were introduced under Schedule 2 to the Act (and in subsequent secondary legislation) on who may hold television licences.
Independent production. Channel 3 licensees were required to transmit at least 25 per cent of their output from independent producers.
Programmes. Channel 3 licensees were required to provide (and give a “sufficient amount of time” to) high quality news and current affairs programmes as well as children’s, regional and religious programmes. Positive programming requirements also apply to Channel 5 and to the public teletext service.
Gaelic programmes. A new Gaelic Television Committee was set up to oversee the making of television programmes in Gaelic primarily for broadcasting on Channel 3 in Scotland.
Broadcasting Standards Council (BSC) was set up on a statutory basis.
Welsh Authority. The Welsh Fourth Channel Authority (S4C) had to provide a high quality television service in Wales, including Welsh language programmes in peak-time, which would be funded by the Government.
News provision. The ITC was required to nominate a body or bodies to provide news services on Channel 3.
Archives. The Act provided for the ITC to nominate a body to maintain a national television archive and assess the amount of contribution to its expenses by the Channel 3/5 licensees.
Obscene Publications Act 1959. Broadcasting was now included within the ambit of the Act.
THE BROADCASTING ACT 1996
The Broadcasting Act 1996 which was given Royal Assent on 24 July, amended and replaced certain elements of the 1990 Act. The main provisions were:
· to legislate for digital terrestrial TV
· to relax ownership provisions
· to regulate cross-media (newspaper and television) ownership arrangements;
· to introduce a ‘restricted television service’ licence;
· to strengthen provisions protecting C3 regional programming;
· to alter the C4 funding formula;
· to allow the ITC to regulate commercial services provided by the BBC;
· to merge the BSC and the BCC;
· to introduce a code for the acquisition of rights to listed events.
The Commencement Order for most of the Act’s provisions was published on 13 August 1996.
Main provisions of the 1996 Act
Parts I and II of the Act established a regulatory framework for the development of digital terrestrial broadcasting; Part I for television and Part II for radio.
Part III deals with changes to the 1990 Act. These include:
- altering the mechanism for appointment by Channel 3 of the nominated news provider
- strengthening powers for the ITC to protect regional programming following change in control of a C3 licensee
- strengthening of the ITC’s powers with regard to the approval of networking arrangements
- amending to the funding formulae for Channel 4 and S4C
- introducing of a new class of licence for restricted services
- extending “must carry” provisions to digital cable networks where the Commission considers it appropriate.
Part IV contains provisions to ensure availability of live coverage of certain listed sporting events to free-to-air television, to be enforced by the ITC.
Part V merges the Broadcasting Standards Council and the Broadcasting Complaints Commission to form the Broadcasting Standards Commission.
Part VI covers the transfer of property, rights and liabilities relating to the BBC transmission network.
Part VII concerns copyright and related matters.
Part VIII contains miscellaneous provisions including new standards for transmission systems and new criteria for disqualification from the holding of licences.
The new limits on media ownership are contained in Schedule 2 to the Act.
ITC notes 2-38 cover all aspects of the ITC’s functions and activities
Broadcasting Act 1990. London: HMSO, 1990
Broadcasting Act 1996. London: HMSO, 1996