12 May 2009
At its meetings on 28 April and 5 May 2008, Ofcom’s Radio Licensing Committee (RLC) considered and approved the Format change request submitted by Bauer Radio regarding City Talk 105.9 in Liverpool (105.9 FM).
Having considered the request, the responses to the consultation, the relevant statutory criteria and Ofcom’s Format change policy, the RLC approved the request on the grounds that the criterion in s.106 (1A) (b) is met and on the basis that approving the change would ensure the continuation of a local speech-based Format in Liverpool, whose overall direction would be maintained (at peak broadcasting times in particular). However, this is conditional on City Talk not simulcasting any programming with Bauer’s Magic 1548 station and on additional commitments to the proportion of speech to be broadcast during non-peak daytime not generally falling below 50%, the provision of a Saturday afternoon sports programme and a late night phone-in programme five nights a week.
Bauer’s request was set out in a public, four-week consultation which ended on 31 March. It was to continue to provide all-speech programming at peaktime (i.e. at weekday breakfast and drivetime, plus weekend late breakfast), but with mixed music and speech output permitted during other weekday daytime hours. The type of music played would be soft pop-led. Outside of weekday daytime, the requested new Format would have allowed City Talk to share programming with Bauer’s other two stations in Liverpool, Magic 1548 and Radio City 96.7.
Ofcom has the ability to consent to such changes under conditions included in the City Talk licence, in accordance with Sections 106 (1A) of the Broadcasting Act 1990 (the 1990 Act) if it is satisfied that at least one of the following criteria is satisfied:
- the departure would not substantially alter the character of the service;
- the change would not narrow the range of programmes available in the area by way of relevant independent radio services;
- the change would be conducive to the maintenance or promotion of fair and effective competition; or
- there is evidence that, amongst persons living in the affected areas, there is a significant demand for, or significant support for, the change.
In this case, Ofcom regarded the proposed changes to the character of service as substantial, so criterion (a) above is not satisfied and the change could only be approved if one of criteria (b) to (d) is met. In these circumstances, Ofcom was required to carry out a public consultation (under section 106ZA of the 1990 Act).
Where one of these criteria is met, Ofcom has discretion to agree a Format change request. It has published a Format change policy setting out factors it may take into account in deciding whether to do so (see http://www.ofcom.org.uk/radio/ifi/rbl/formats/formats/fc/changeregs/ (although Ofcom has now decided that requests may be granted within 2 years of a station coming on air)).
Ofcom received 42 responses to the consultation:
- 13 (all from individuals) in favour of the request being granted; and
- 29 (26 individuals and 3 local radio licensees) against.
Non-confidential responses can be viewed at http://www.ofcom.org.uk/consult/condocs/citytalk/responses/
Those in favour said it would be better to maintain a service offering speech at peak times rather than to lose the City Talk service altogether. Some said the station had provided a valuable contribution to public debate in the area and that it was worth adding in some music to maintain viability, and others that the addition of music would broaden its appeal and make the station more popular, while maintaining its distinctive elements.
Of those against, the majority of the individuals replying to the consultation (25) said Bauer should hand back the licence. They made two main points: (1) that music would diminish choice; and (2) that if Bauer did not want the station, it should be re-advertised to allow competitors to have a go. Some also argued that the change would strengthen Bauer’s already strong competitive position in Liverpool and so should not be allowed.
Of the radio licensees who responded, one objected to the change on the grounds:
- allowing ‘soft-pop’ on the new Format would let Bauer ring-fence Formats in Liverpool by ‘owning’ pop, chart and speech;
- soft pop is already available in Liverpool;
- by applying for a speech Format originally, Bauer was simply trying to protect its heritage station (Radio City) from challenge; and
- the original Bauer research is still valid, so it should stick with speech or hand the licence back.
- adding soft pop in Liverpool narrows the range of programmes available, because Magic can already be heard on AM;
- there is no support for the change;
- the current City Talk Format has not been seen to fail;
- Bauer may have applied for all-speech to gain the widest opportunities for advertising when sold with Radio City; and
- there is no reason to assume the proposed Format would succeed.
A third said:
- the requested change will narrow the range of available programming;
- to sanction the proposed change would give Bauer an unfair advantage to the significant detriment of other commercial operators in the area;
- Bauer has not presented any evidence that there is significant demand or support for the change in their request;
- with the format change, it (the respondent licensee) may become non-viable; and
- it would be grossly unfair to competing applicants, listeners, and other commercial operators to waive a key tenet of City Talk’s application after such a short period on air.
The request went first to Ofcom’s Content Board for advice, and then to RLC. Both took the view that the request should be granted. The RLC decided to grant it subject to additional commitments to the proportion of speech to be broadcast during non-peak daytime not generally falling below 50%, the provision of a Saturday afternoon sports programme and a late night phone-in programme five nights a week, and to there being no simulcasting of programming with Magic 1548.
In reaching its decision the RLC took the view that:
- the criterion in s.106 (1A) (b) is met: the change would not narrow the range of programmes available in the area by way of relevant independent radio services, provided that programmes would not be shared with Magic 1548. City Talk would still be the only station in the area offering 100% speech programming at the peak-times of breakfast and drive. During the rest of daytime, it would be offering a unique mix of local speech (at least 50% of output on average) and soft-pop music. This is not available on any other service in the area. So, overall, the breadth of the range of programmes would be maintained even if the precise nature and content of some programmes would change;
- the potential simulcasting of Magic 1548 was important: it would narrow the range of programmes available and should not be allowed;
- in terms of the extent of the impact of the change on the character of service, there would still be a significant element of local speech on the station;
- this local speech would include 100% at the peak broadcasting times of breakfast and drive-time, which Bauer report accounts for 55% of all weekday daytime listening hours, and where the change might otherwise have the most impact on listeners and other stations;
- there would still be broad consistency with the commitments to local speech that Bauer made at the time the licence was awarded to it, with a strong focus on news, information, features and discussion enshrined in the station’s Format ;
- although the Format change would be occurring within two years of City Talk going on air, the overall direction of the station would be maintained, which is consistent with Ofcom’s reason for changing its policy on Format changes within that two year period;
- it was important to sustain a commercial local radio service offering substantial amounts of locally-relevant speech at key listening times, which the consultation responses showed listeners valued (even if they did not demonstrate significant demand or support for the change), and to maintain choice and diversity for listeners.
- the consideration immediately above was felt to outweigh any concerns for the time being that Bauer’s competitive position would be strengthened. The RLC considered that it did not have sufficient information to decide whether the statutory criterion in section 106 (1A) (c) of the 1990 Act was met or not. However, only one of the statutory criterion need be met and the RLC did not approve the request on the basis of that in sub-section (c). In any event, the RLC noted that any conduct by Bauer that is contrary to fair and effective competition would be restrained by its licence conditions and/or general competition law;
- the change would substantially maintain the station’s output of local material generally;
- the change was therefore consistent with Ofcom’s:
- general statutory duties in section 3 of the Communications Act 2003 (the 2003 Act) to secure the availability throughout the UK of a wide range of radio services which (taken as a whole) are both of high quality and calculated to appeal to a variety of tastes and interests and in section 85 of the 1990 Act to secure the provision of a range and diversity of local radio services; and
- more specific duty as to localness in section 314 of the 2003 Act
The RLC therefore decided that City Talk be allowed to change its Format as follows:
“A SERVICE OF SPEECH AND SOFT POP-LED MUSIC PROGRAMMING FOCUSED ON THE INTERESTS OF THE PEOPLE OF LIVERPOOL AND SURROUNDING AREAS.
THE SERVICE WILL BE 100% SPEECH DURING PEAK TIMES, FOCUSING ON NEWS, INFORMATION, FEATURES AND DISCUSSION.
DURING THE REST OF WEEKDAY DAYTIME THERE WILL BE A MIX OF SPEECH FEATURES AND PHONE INS AND SOFT POP-LED MUSIC. DURING WEEKDAY DAYTIME SPEECH CONTENT WILL GENERALLY NOT FALL BELOW 50%.
THERE WILL BE A LATE NIGHT PHONE IN SHOW FIVE NIGHTS A WEEK, AND A LONG-FORM SATURDAY SPORT PROGRAMME WHICH WILL CARRY DEDICATED LIVE MATCH COMMENTARY (i.e. SEPARATE FROM RADIO CITY) WHEN APPROPRIATE. LATE NIGHT PROGRAMMES AND THE SATURDAY AFTERNOON SPORT PROGRAMME MAY BE SHARED WITH RADIO CITY.”