Ofcom & Licence Revocation – Empty Threat?

Fines go to central government funds via Ofcom - they don't get to keep the money.

Look4Love had (I think) already gone out of business. The licence recovation was basically for not paying a fine, albeit a huge one, so it isn't a relevant example. What matters is if Ofcom could go straight to licence revocation, or revoke a licence even after a channel paid up.

Ofcom's status is probably the same as Tribunals - informal but basically acting as a lower civil court, roughly equivalent to a Crown Court. It has been clearly established that Tribunal decisions can be appealed at the next level in the court system, the High Court. Also decisions of any public body can be subject to Judicial Review, but only to see if they are sane and rational. Decisions could be rejected if there was bias, lack of impartiality, a failure to take account of evidence or arguments, or a failure to follow published rules. Even the Home Secretary cannot make on the spur arbitrary decisions, and Home Secretaries have been repeatedly over-ruled on immigration and terrorism cases. The courts would have no difficulty telling a pipsqueak organisation like Ofcom where to get off.

The problem is that it could take 1-2 years to get a full court hearing. During that time an initerim ruling might prevent more borderline material being shown - and breaking a High Court order really would be bad news. The best a channel could hope for would be a ruling that a particular type of material was legal for all channels - including their cometitors. Unless they were challenging a fine, in which case they might get their money back, after 2 years.

Also it might be difficult to get a barrister without being certain of paying them, so a small channel might be unable to guarantee £200,000 in 2 years time.

Even worse, if Ofcom appealed it could take years and cost a packet to go even higher.

More interestingly, junior courts cannot establish precedent. They should be reasonably consistent, but each case should be judged on it's merits, and one case does not rewrite or even clarify boundaries for the next one. Ofcom claims it has repeatedly issues clear guidance in previous Broadcast Bulletins. These are not part of the Broadcast Code - do they have any status or significance whatsoever?

(15-03-2010 03:25 )H-H Wrote:  Look4Love had (I think) already gone out of business. The licence recovation was basically for not paying a fine, albeit a huge one, so it isn't a relevant example. What matters is if Ofcom could go straight to licence revocation, or revoke a licence even after a channel paid up.

In your opinion it's not a relevant example. The facts suggest otherwise... It's a classic example of how not to run a channel (explicit content excluded). When things like this happen, the regulations tighten and other channels suffer as a consequence.

The same thing happened in the racing industry with ICSTIS/PhonepayPlus regarding premium rate services... Somebody gets out of line, the regulations tighten, the heat gets turned up and causes inconvenience to others in the industry.

You have made a lot of good points about OFCOM though, so keep up the good posts...

(15-03-2010 03:25 )H-H Wrote:  Look4Love had (I think) already gone out of business. The licence recovation was basically for not paying a fine, albeit a huge one, so it isn't a relevant example. What matters is if Ofcom could go straight to licence revocation, or revoke a licence even after a channel paid up.

I'm not sure that they had gone out of business. I thought they carried on broadcasting until the licence was revoked.

(14-03-2010 13:46 )gray warden Wrote:  who does ofcom answer to.can a channel challange ofcoms ruling who do they go to or is it back to ofcom.

Ofcom is an independent regulator, whose powers derive from the Communications Act 2003. If you're into reading legal statute, then here gives you the functions and general powers of Ofcom.

There's too much detail to go into here, but as an example, you'll see from the link that:

"(2) The things which OFCOM are required to secure in the carrying out of their functions include, in particular, each of the following -

(e) the application, in the case of all television and radio services, of standards that provide adequate protection to members of the public from the inclusion of offensive and harmful material in such services;

(4) OFCOM must also have regard, in performing those duties, to such of the following as appear to them to be relevant in the circumstances -

(g) the need to secure that the application in the case of television and radio services of standards falling within subsection (2)(e) and (f) is in the manner that best guarantees an appropriate level of freedom of expression;

(h) the vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection;

(k) the opinions of consumers in relevant markets and of members of the public generally;"

Lots to debate here!

The question was who do Ofcom answer to and can their decisions be challenged, not what are their powers.

Independent yes, but that does not mean a law to themselves. At the very least an aggrieved party can take them to the High Court for judicial review. It's slow and expensive, but it would be interesting to see if the Board resigned if they lost.

If the House of Commons passed a vote of no-confidence, the Board would be obliged to resign and their careers would be impaired.

Any employee who knowingly acted illegally or against a Court order would be in serious trouble.

The usual arrangement in public bodies is that if they act illegally, unreasonably or recklessly, the people in charge can be BILLED. If your Council sends out Council Tax bills based on a 5% increase, having been warned that increases will be capped at 2.5%, then the officers or elected councillors who ordered that can (ultmately) be billed the £20,000 it costs to send out updated bills 2 months later. The usual protection is to get their pet solicitor to advise whether something is legal and reasonable, or against legal advice. No sane elected councillor will act against legal advice, not since Westminster Councillors were billed millions for cemetrary sales and council house sales that improved their election prospects allegedly.

So - if a channel can put forward a convincing legal argument that such and such is legal, and if Ofcom's own lawyers are unable to disagree, then Ofcom might cave in. But that will only happen if their own lawyers agree with the channel, and you know how slippery lawyers can be. (I have a lubed up blonde trainee paralegal here right now. Nice, but difficult to grab hold of).

Then there are the Auditors. Is public money being spent wisely? Effectively? Efficiently? Don't expect Auditors to get involved in political decisions, such as how important it is to police "offence", but they might get excited about 1 complaint re babe channel sex on a channel with perhaps 10,000 viewers taking up 100 hours time, while 20 complaints about the F word on Glastonbury in daytime TV, or the Alan Titchmarsh lunchtime Dildo Show, both watched by millions, taking perhaps 10 hours staff time. An Auditor might be interested in the hugely different complaints/hours or audience/hours ratios. Or might not.

I am not sure what powers an Auditor (or the Audit Commission) have, apart from saying a quango is inefficient. Also it is difficult to get their attention except at audit time.

Likewise the Government Statistical Service has no qualms about rubbishing poor research, but does not seem to have much clout.

Finally Ofcom are probably answerable to the Minister for Trade and Industry (I think responsibility was passed from Culture). The Minister won't rock the boat, but probably has powers to sack them. A recent example was the Chair of a drugs advice panel who said something unpopular and ended up resigning.

(19-03-2010 22:52 )Sootbag1 Wrote:  

(14-03-2010 13:46 )gray warden Wrote:  who does ofcom answer to.can a channel challange ofcoms ruling who do they go to or is it back to ofcom.

Ofcom is an independent regulator, whose powers derive from the Communications Act 2003. If you're into reading legal statute, then here gives you the functions and general powers of Ofcom.

There's too much detail to go into here, but as an example, you'll see from the link that:

"(2) The things which OFCOM are required to secure in the carrying out of their functions include, in particular, each of the following -

(e) the application, in the case of all television and radio services, of standards that provide adequate protection to members of the public from the inclusion of offensive and harmful material in such services;

Well 'offensive' material is categorised in terms of sexist or racist material in TVWF/AVMS. That which causes mere offence as a matter of subjective opinion is not 'offensive' material per se.

As for harmful material, Ofcom have stated that with regard TVWF 22(1) - 'serious impairment to minors' - and 22(2) 'impairment to minors' that there were no grounds and no evidence to allow a ban on R18 material.

Quote:(4) OFCOM must also have regard, in performing those duties, to such of the following as appear to them to be relevant in the circumstances -

(g) the need to secure that the application in the case of television and radio services of standards falling within subsection (2)(e) and (f) is in the manner that best guarantees an appropriate level of freedom of expression;

Freedom of Expression exists for the pupose of causing offence - "to impart information and ideas that are not favourably received". There can be no purpose in protecting freedom of expression if everything we say, write, film, paint, sing, scream and shout is always gracefully accepted. Only when someone tries to stop us saying something, showing something, writing something, then and only then does Freedom of Expression apply stringent tests to ensure our legal right to be seen and heard or, indeed, to see and hear that which is being supressed is protected. And one of those protections is a test that demands PROOF OF HARM, not the sham of a '(pre)cautionary' excuse.

Quote:(h) the vulnerability of children and of others whose circumstances appear to OFCOM to put them in need of special protection;

Yep, Khyra Ishaq and Baby Peter wouldn't be alive today without Ofcom's special protection. Or did I miss something?

Quote:(k) the opinions of consumers in relevant markets and of members of the public generally;"

Oh, yes, we had a poll and found out what 200 viewers of these channels feel in terms of the output meeting their expectations (that's significantly more than Ofcom have ever done on the subject). Nearly 50% of people aren't satisfied at all.

And I know from past ITC/BSC public surveys that 75% of the population of the UK think that "people who want to view particularly sexually explicit material on TV should be allowed to do so". Only 22% thought such material should be banned.

Public opinion is pretty clear-cut I'd say.

There's a fair amount of nonsense in H-H's response, some of which I'll answer below.

I know that the question was "Who does Ofcom answer to?", but that is the same question as "Where do they get their powers from?". In other words, they are answerable to the body that gives them their powers ie. Parliament. There is no legal process by which the House of Commons can pass a vote of no confidence in a statutory body. If it wished to amend the powers of Ofcom, it would do so by amending the Communications Act 2003.

He then goes on to talk about surcharging/capping powers, and gets very confused. 'Capping' is a specific power the Secretary of State has in respect of local authority precepts, and so is irrelevant in respect of Ofcom. The power to surcharging councillors also only applies to local authorities, or it did before the power was removed by the Local Government Act 2000.

Ofcom is subject to audit by the National Audit Office, which audits government departments and agencies to ensure value for money is being obtained by the public. The NAO has no remit to comment on how Ofcom discharges its responsibilities as set out in the Communications Act 2003, only that in doing so, it achieves value for money.

Ofcom isn't answerable to the Minister for Trade and Industry (not least because no such ministerial post exists). It is answerable to Parliament, and it does so by producing an annual report each year, all of which can be viewed here.

(20-03-2010 14:02 )Sootbag1 Wrote:  There's a fair amount of nonsense in H-H's response, some of which I'll answer below.

I probably rabbited on a bit, but happy to draw out important points...

Quote:I know that the question was "Who does Ofcom answer to?", but that is the same question as "Where do they get their powers from?". In other words, they are answerable to the body that gives them their powers ie. Parliament.

No, not the same at all. For example, Parliament passes laws creating local councils, but they are answerable to the local electorate.

Quote: There is no legal process by which the House of Commons can pass a vote of no confidence in a statutory body.

Perhaps not, but any public body that had a vote of no confidence passed against it would be in an impossible position, and honour bound to resign.
Also Ofcom themselves say "We answer to the UK Parliament but we are independent of the UK Government. The Government Departments that sponsor us are the Department for Business and Regulatory Reform and the Department for Culture, Media and Sport." http://www.ofcom.org.uk/consumeradvice/guide/
Sponsorship = power.

Quote:If it wished to amend the powers of Ofcom, it would do so by amending the Communications Act 2003.

Ofcom was established by the Office of Communications Act 2002 http://www.opsi.gov.uk/acts/acts2002/ukp..._en_1#l1g1 and this makes multiple references to powers of the Secretary of State, including the power of the Secretary of State to present a draft winding up Order to Parliament. As far as I can see, the Communications Act 2003 did not repeal that power. On a day to day basis it is the Secretary of State who wields real power.

Quote:He then goes on to talk about surcharging/capping powers, and gets very confused. 'Capping' is a specific power the Secretary of State has in respect of local authority precepts, and so is irrelevant in respect of Ofcom. The power to surcharging councillors also only applies to local authorities, or it did before the power was removed by the Local Government Act 2000.

Perhaps I wasn't clear. What I was trying to say was that if officials of a public body - Ofcom or a council - knowingly go against advice of their own solicitor (or Secretary) they loose immunity and can personally be sued for all resulting costs, whether it is printing and posting new council tax bills, lost asset values or fines.

Quote:Ofcom is subject to audit by the National Audit Office, which audits government departments and agencies to ensure value for money is being obtained by the public. The NAO has no remit to comment on how Ofcom discharges its responsibilities as set out in the Communications Act 2003, only that in doing so, it achieves value for money.

Quite possibly. I am not sure where they draw the line. But certainly any money spent on unauthorised activity would be deemed "ultra vires" and illegal. As for excessive and imbalanced pursuit of one small area of their remit? Difficult to say.

Quote:Ofcom isn't answerable to the Minister for Trade and Industry (not least because no such ministerial post exists). It is answerable to Parliament, and it does so by producing an annual report each year, all of which can be viewed here.

Correct. I was going from memory. But it answerable, in the first instance, to the Secretary of State for Trade and Industry (see, close, just a few words out) as was, now apparently the "Secretary of State for Business, Innovation and Skills ". The 2003-4 Annual Report confirms that "Ofcom had initial loan funding of £52.3m from the Secretary of State for Trade and Industry to fund its establishment and running costs prior to the vesting of powers to set licence and administrative fees under the Communications Act 2003.", a pretty clear indication of whose pocket Ofcom is in.

Lord Mandelson.

H-H, you're a gent!

Empty threat, we now know that it happens. If you read the latest bulletin you will see other broadcasters now under threat. Playboy and Just4Us are being called in by Ofc@m for a final warning.

In light of the above and Ofcom‟s recent concerns with Just4Us and Playboy‟s compliance, Ofcom is now requiring the licensees to attend a meeting at Ofcom to discuss its compliance procedures. Ofcom also puts Just4Us and Playboy on notice that it must take all necessary and appropriate measures to ensure its channels comply with the BCAP Code in the future. Ofcom will not expect further breaches of this nature to occur again.

Expect about 6 channels to go down if Ofc@m receive further complaints and starts revocation procedures again. It's been said before Ofc@m wants rid of these ftv channels.

http://stakeholders.ofcom.org.uk/binarie...sue174.pdf