Under the Broadcasting Acts 1990 and 1996, the main instruments of the ITC’s regulation of its licensees are the ITC codes and the conditions in each licence, which may be enforced by sanctions. Unlike its predecessor, the Independent Broadcasting Authority (IBA), the ITC is not the broadcaster and no longer previews programmes or requires advance schedule information. Decisions on whether the codes or licence conditions have been breached are made after the programmes or advertisements have been transmitted. The ITC’s licensees are responsible for editorial content, within the framework of their licences and codes. The ITC’s main task, after the award of licences, is to ensure that the licensees’ programming promises are delivered and that licence and code requirements are adhered to.
Programme Code
All ITC licensees, including cable and satellite channels, are subject to the ITC programme code, although in a few areas it makes different provisions for different services. The code includes both mandatory requirements and more general guidance on matters such as the portrayal of violence, taste and offence, due impartiality and accuracy. These are known as the ‘consumer protection’ requirements which apply to all services. The code is not a comprehensive set of rules and guidance for all circumstances. Since the rules on programme content often require subjective interpretation, the supporting guidance is made as clear as possible. The ITC will also give advice on general principles or particular rules in the light of precedents, audience research and viewer reactions. The code is subject to periodic review in the light of viewers’ changing tastes and attitudes. The Code has recently been revised with a new version coming into force in January 2002.
Advertising and Sponsorship Codes
The ITC’s regulatory role in relation to advertising and sponsorship involves keeping the advertising and sponsorship codes and rules on advertising breaks under review, consulting externally about them, providing guidance to licensees on code application and by intervening, where necessary, to ensure that the codes are observed. The ITC’s main standard-setting forum is the Advertising Advisory Committee (AAC) whose members represent strong consumer interests as well as both advertising and television companies.
The Broadcast Advertising Clearance Centre (BACC) is a television industry self-regulatory body which pre-vets commercials and is responsible for ensuring that they comply with ITC codes and guidelines. It performs this duty on behalf of the Channel 3 (ITV) companies, Channel 4, Channel 5, BSkyB and some other satellite channels. Licensees not affiliated to the BACC are responsible for their own copy clearance arrangements. There is no central clearance machinery for sponsorship. The ITC Advertising Standards Code was revised in September 2002 and the ITC Code of Programme Sponsorship in autumn 2000.
Licence Conditions
The ITC codes do not cover the full range of matters with which licensees have to comply although there are different obligations attaching to different types of licence.
Positive programme requirements. For Channel 3 and Channel 5 these derive mainly from Section 16 of the Broadcasting Act 1990 and are incorporated in the Channel 3 and Channel 5 licences. They include high quality and diversity; specified amounts of time allocated to different strands of programmes; minimum percentages of original programming, independent production and European programmes.
For Channel 4, the positive programme requirements derive mainly from Section 25 of the Act and include requirements for Channel 4 programmes to contain a suitable proportion of material which will appeal to tastes and interests not generally catered for by ITV; to be innovative and experimental; to have a wide range in subject matter and that Channel 4 should be provided as a public service for disseminating information, education and entertainment and generally have a distinctive character of its own. Section 8 of the Broadcasting Act 1996 requires a digital multiplex operator to provide a service to appeal to a variety of tastes and interests.
Programme-related matters. These derive from various parts of the Act and for Channel 3 (ITV) include networking arrangements, training, equal opportunities, provision for the deaf and hard of hearing, regional facilities and staff, the national TV archive, Party Political Broadcasts, Government directions and the handling of complaints.
Directions
The ITC may issue directions to its licensees for various purposes. For instance, the ITC has the power to require its licensees to discontinue a non-complying advertisement or sponsorship and may impose scheduling restrictions on advertisements. It also has regulatory responsibilities in relation to television advertising sales matters, notably the requirements for ‘fair and effective competition’ and ‘no unreasonable discrimination’. The ITC may direct its licensees not to repeat a programme or to broadcast an apology.
Monitoring Performance
The ITC draws on various sources of information to assess licensees’ performance. These include regular staff monitoring of programmes both centrally and in the regions; viewers’ complaints to the ITC and to licensees; ITC audience research; and post-transmission data from licensees describing the type, duration and source of each programme. A comprehensive performance review of all Channel 3 (ITV) companies, Channel 4, Channel 5 and Teletext Ltd is undertaken annually. A summary of these performance reviews is published in the ITC annual report and accounts. Under the Broadcasting Act 1996, a digital multiplex service licensee is required to show a range of programming across the multiplex. The ITC is responsible for monitoring this requirement. The ITC has no powers to require quality and diversity within cable and satellite channels.
Sanctions
The ITC has wider powers than its predecessor the IBA to enforce licence conditions and codes. In the case of serious breaches of ITC codes or licence conditions, the ITC has a range of sanctions at its disposal. The Commission may issue a formal warning, require on-screen apologies, forbid a repeat, impose financial penalties, shorten or (in extreme circumstances) revoke a company’s licence.
Fines for Channel 3, Channel 4, Channel 5 and local delivery services licensees may be imposed of up to 3% of the licensee’s annual qualifying revenue (advertising, sponsorship and subscription income), or up to 5% for subsequent breaches. Under the Broadcasting Act 1996, satellite and licensable programme services are subject to financial penalties of up to £50,000 or up to 3% of ‘qualifying revenue’, and in the case of a second or subsequent offence, up to 5%, whichever is the greater. Fines for digital multiplex and digital programme service licences may be imposed in a similar way as for cable and satellite licensees.
Accountability
The ITC’s powers derive from the Broadcasting Act 1990 and Broadcasting Act 1996 and the ITC presents its report and accounts annually to Parliament. Before the award of new licences, the issuing of new codes (or revisions to existing ones) and Invitations to Apply, the ITC invites comments from the public. Details of applications (except for the confidential business plans) for licences awarded by competitive tender are made available for public scrutiny in the ITC Information Centre and regional offices and, if appropriate, selected UK major libraries.
Details of significant interventions made by the ITC, whether or not on the basis of viewers’ complaints about programmes or advertisements, are published together with statistics in the fortnightly Television advertising complaints report and the Programme complaints and finding report. The ITC review of Channel 3 companies, Channel 4, Channel 5 and Teletext Ltd is published annually in the ITC Annual Report.
The use by the ITC of its discretionary powers under the Broadcasting Act 1990 may be subject to challenge by means of application for judicial review. In 1995, Virgin Television, one of the unsuccessful applicants for Channel 5, applied for judicial review of the ITC’s decision to award the Channel 5 licence to C5 Broadcasting Ltd. Virgin TV was granted judicial review, but on 26 January 1996 the challenge failed. The High Court found that there was no illegality or unfairness in the ITC’s award of the licence. The judgement stated: ‘It is quite plain that the Commission approached its task of evaluating the application and the evidence provided by Virgin to support it with model care’.
This was the second time the ITC had been taken to judicial review on matters of licensing. It has been successful on each occasion. Since then it has also successfully defended its decision to prohibit Minimum Carriage Requirements in the packaging of channels to consumers and to refuse consent for TV Danmark to broadcast exclusive live coverage of football World Cup qualifying matches in 2002.
Further References
ITC Publications*
ITC Library bibliographies: Censorship and the media and Ethics and the media
ITC Annual Report 2001. ITC 2002
Codes and Guidelines.
ITC Programme code (2001), Code of advertising standards and practice (1998), Rules on the amount and scheduling of advertising (1998), Code of programme sponsorship (2000), Technical performance code (2000), Code for Text Services (1998), Guidance on standards for subtitling (2001), Outline procedure of statutory sanctions (2001).
Complaints Reports.
Monthly Advertising complaints report
Monthly Programme complaints and interventions report
Licences, Invitations to Apply, Guidance for applicants.
All available from the ITC. Copies of Channel 3, Channel 4 and Channel 5 licences cost £10.
July 2003
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