In a consultation document published on 14 October 2004, Ofcom sought views, on the guidance that it proposed to issue to television broadcasters in relation to their licence obligations to comply with Articles 4 and 5 of the Television without Frontiers (TWF) Directive. These require, amongst other things, that, where practicable, European production should account for over 50% of the transmission hours of each broadcaster established in the UK, subject to certain exclusions. European independent productions must account for at least 10% of transmission hours; of these, an 'adequate proportion' must be works transmitted within five years of production.
Until the end of last year, compliance with the TWF Directive was monitored by the Department of Culture, Media and Sport (DCMS). In December last year, the Secretary of State notified Ofcom of the UK's obligations under Articles 4 and 5 of the TWF Directive, triggering a requirement under section 335 of the Communications Act 2003 on Ofcom to make compliance a licence obligation of television broadcasters. In anticipation of this, Ofcom had consulted on proposals to amend licences, and relevant changes were made in licences issued at the end of the year.
In its consultation document, Ofcom proposed to continue the approach taken by DCMS to assessing the obligations of broadcasters. For example, in assessing the extent to which compliance is or is not 'practicable' in terms of the TWF Directive, Ofcom said that it expected to take account of the same factors advanced by DCMS in its periodic reports to the European Commission (e.g. the specialist nature of some channels). However, as the circumstances in which these factors are relevant will differ from broadcaster to broadcaster, and because there may be other relevant circumstances bearing on practicability, Ofcom did not consider that it would be prudent to fetter its discretion by being unduly prescriptive as to the range of factors or the circumstances that it would take into account. The text of the original consultation document is available on the Ofcom website.
In the light of both the non-confidential and confidential responses to the consultation, Ofcom has concluded that it should publish guidance along the lines it proposed, and this is set out in Annex 1. However, a few changes will be made to the detail of the guidance in the light of comments made. Ofcom's response to the points made by consultees is set out in Section 2.