Ofcom Consultations

Consultations Round Up

"Dispute Resolution Guidelines - Ofcom’s guidelines for the handling of regulatory disputes" - 17 Dec to 11 Feb - no Responses published yet.

"Revising the penalty guidelines" - 17 Dec to 11 Feb - same 5 responses as yesterday (Sky, BT, Virgin, Channel TV, Talk Talk).

"Review of procedures for handling broadcasting complaints, investigations and sanctions" - 17 Dec to 11 Feb - no Responses published yet.

"Procedures for handling appeals on scope and for imposing sanctions in relation to On-Demand Programme Services" - 17 Dec to 11 Feb - no option to view responses, response page still open.

(23-02-2011 20:30 )bigguy01 Wrote:  most public bodies have scrutiny committee which examines the desicions made the by body.

It is a legal requirement for all local authorities to have a overview and scrutiny committee under the Local Government Act 2000. Such committee would oversee and ensure that the council are meeting their legal obligations, providing essential services and ensuring that services are cost effective to local tax payer (residential and commercial). They will also ensure that council committees and sub-committees are proportionally represented by the elected parties.

I'm sure Ofc@m have something similar at the top of their tree.

Whilst the O&S committee will want to ensure the authority operates in a fair and transparent manner it does NOT get involved with individual enforcement decisions taken at delegated officer level. This would normally be a team managers function with high profile decisions discussed at director/legal level.

So no, i still have no confidence in Ofc@m's proposed enforcement/sanctioning structure and await to see the responses of the broadcasters and other stakeholders.

With the scope of the Freedom of Information Act being further broadened sometime in the near future such regulators will have to ensure transparency, accountability and proportionality in all decisions as well as consistency.

(23-02-2011 08:54 )Jay39 Wrote:  Legislative background and the Broadcasting Code

The requirement for regulating content by generally accepted standards is set out in legislation. The Communications Act 2003 (“the Act) requires that “generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection of members of the public from the inclusion in such services of harmful and/or offensive material”

(http://stakeholders.ofcom.org.uk/binarie...ndix1.pdf)

This requirement in the Act is therefore explicitly set out in the Broadcasting Code in Rule 2.1 which directly repeats the legal requirement in the Act:

Rule 2.1: Generally accepted standards must be applied to the contents of television and radio services so as to provide adequate protection for members of the public from the inclusion in such services of harmful and/or offensive material.

OFCOM caught lying as usual. The Comms Act 2003 states “generally accepted standards are applied to the contents of television and radio services so as to provide adequate protection to members of the public from the inclusion in such services of offensive and harmful material”. (emphesis added)

The law does not say OFCOM can simply and INCORRECTLY requote the legislation. The law requires that OFCOM's Code "Ensures generally accepted standards are applied to the contents of television and radio services to provide adequate protection to members of the public from the inclusion in such services of offensive and harmful material".

Now, to ensure adequate protection to the public the Code MUST necessarily state
a) what is considered "offensive and harmful material" according to 'generally accepted standards' and,
b) how this material is to be excluded from transmission.

But no. OFCOM go one better and not only misquote the law in rule 2.1 they even BREAK IT in rule 2.3 by ALLOWING THE INCLUSION of offensive material IF its supposedly "justified by the context".

Last time I checked this was supposed to be a democratic nation. What that means is, for something to be considered 'offensive' and/or 'harmful', more than 50% of the population must agree. Indeed, if a jury in a court of law were to decide if something was 'offensive and/or harmful' then more than 75% (9 out of 12) would have to agree.

The whole point of the HRA is to ensure minorities are not persecuted, that their inherant, immutable, inalienable Rights are PROTECTED from fascist little gits that don't like the colour of their skin or the type of materials they like to watch. To that end, any Expression that is to be banned MUST be shown to be harmful.

OFCOM haven't produced any evidence that porn is in any way harmful to anyone of any age. They stated categorically in 2004/5 that there was no evidence whatsoever to support a ban on R18-type material or, indeed, any reason to place undo restrictions on its broadcast. However, in an unfathomable, unjustified and unreaonable leap, they suddenly claimed that they had to ban sexual material to protect some other unidentified 'vulnerable people'. WHO are these folks? WHAT are they? Do these rather convenient and fabled 'vulnerable people' even exist? And WHERE is the EVIDENCE they actually NEED protecting from sexual material at the rather disproportionate expense of EVERYONE ELSE'S Freedom of Expression?

OFCOM only BELIEVE there's an issue with porn. And although the HRA protects everyone's Right to hold beliefs it DOES NOT allow for those unsubstantiated beliefs, myths, phobias and fairytales to be used to restrict any other person's Fundamental Human Rights- that's THE LAW.

Quite clearly, OFCOM have NOT chosen to read The Comms Act 2003 "in a way which makes it compatible with the Case Law of the ECHR and the Articles of the HRA 1998" as the LAW OF THE LAND REQUIRES. OFCOM are thus BREAKING THE LAW.

Indeed, restricting our Right to watch legally harmless material without proper cause or reason is far more offensive and harmful to society than anything ever complained about on TV. And of course, the ONLY REASON people have anything to complain about on TV is BECAUSE OFCOM allow people to broadcast so-called 'offensive' material in the first place.

Offensive and harmful material is by definition that which attacks, harms, slanders and maligns. It is legally defined as racist, sexist, 'hate speech' and there are laws against it. Equally, there are laws against 'extreme porn', child porn and other harmful obscenity (e.g bestiality) but, R18 is NOT one of them. It is EXACTLY THIS type of offensive and harmful material the Comms Act refers to (else it cannot be HRA compliant!) and, moreover, WHAT OFCOM were supposed to ADEQUATELY PROTECT THE PUBLIC FROM IN THEIR CODE.

Moreover, the Comms Act doesn't permit OFCOM to decide what is or isn't offensive and harmful. Indeed, it demands they do what they feel is necessary to achieve the stated aims. As OFCOM are constantly printing fortnightly bullshitting after fortnightly bullshitting for supposed compliance failures resulting from over-sensitive pricks watching what they alone deem to be 'offensive' material then, one can only conclude that OFCOM don't know what the fuck they're doing, that their Code is a pile of shit and, that their licensees are completely out of their control. And why?...because OFCOM have chosen to read 'offensive and/or harmful material' as being anything which causes harm and/or offence to ANY raving lunatic in the land irrespective of whether it ACTUALLY 'IS' harmful AND offensive according to the law, scientific fact or, the MAJORITY OF THE PUBLIC (THE ONLY arbiters of OUR NATION's Generally Accepted Standards!).

Ofcom has has just published responses to 2 broadcasting related consultations both of which closed on 11 Feb almost 3 months ago. To date it has not published new procedures.

Responses to the consultation on “Procedures for handling appeals on scope and for imposing sanctions in relation to On-Demand Programme Services”

Various blue chip broadcasters have criticised details of the proposed procedure. Common threads are that timescales are too short, some powers seem unnecessary or draconian, and details are unclear.

ATVOD
This organisation is the independent co-regulator for TV On Demand. The substance of their submission is that while Ofcom proposed to inform “interested parties” that an appeal has been requested, the proposed regulations do not provide for the co-regulator to be informed of the content of the appeal in advance of the appeal hearing itself. This is staggering. One would expect co-regulators to coordinate on new procedures, but in this case either there has been no coordination, or Ofcom has dismissed ATVODs comments so they have decided to go public, or there has been a serious misunderstanding at senior level.

BBC Worldwide
Points out that there are 2 very different types of Video On Demand, catchup services like the BBC runs and standalone services. This could result in catchup services being punished twice for the same offence, first under the Broadcast Code, then under VOD rules. The BBC also queries the definition of qualifying revenue, used as a basic for calculating fines. Their point is that they derive no additional revenue from VOD unlike subscription services. They also query an aspect of the appeal process.

BT
This large and growing content deliverer considers the 10 day limit for submitting appeals too short, and suggests 30 days instead, with discretion to extend it. (Authors comment: 10 days is not long to digest the regulators decision, formulate a legally watertight response, collect evidence and formally write it all up. In some circumstances the principle people who would be central to building a reply could be on 2 weeks holiday or in hospital).
BT also disagrees with the proposed 15 days for building a formal written response to a sanctions case. Apparently the consultation even suggests this could be cut to 24 hours. BT proposes 30 days.
Thirdly BT suggests that where the contravention is minor, the provider should notify the authorities and have an informal discussion about remedies, rather than jumping straight into formal proceedings.

Channel 4
This large state broadcaster refers Ofcom to comments it made on broadcasting procedures rather than submit another document with very similar content. In a way it is worrying that an organisation of this size does not appear to have the resources to respond to both consultations. Is this an indication of too many consultations, or just an administrative shortcut? Is Ofcom bound to take notice of an indirect response like this?
C4 disputes ATVODs right to limit the timeframe for an appeal to less than 10 days where they consider the service could lead to crime or disorder. C4 point out that by law only Ofcom has relevant powers, not the ATVOD.
They state there is no indication of how Ofcom will decide whether or not to grant an appeal.
C4 claims there is no legal basis for deciding enforcement activity in relation to material that might lead to crime or disorder.
Third parties can submit representations to appeals. C4 says the broadcaster should be able to respond to new representations.
C4 complains that Ofcoms “preliminary view” is more of a “preliminary decision”.
Ofcom states that parties to an appeal must observe confidentiality until the appeal is heard. In itself this is a bit worrying and seems to go beyond rules for court cases, but C4 query how the terms of say the Environment Information Regulations 2004 are relevant and point out that this rule may be in conflict with obligations under the Freedom of Information Act and section 233 of the Communications Act.
C4 queries who at Ofcom will take various decisions about sanctions, a fairly important point.
They also note that there is no legal power for ATVOD to suspend a service.
C4 disputes the proposed sanctions notification process: Ofcom proposes that the broadcaster is only notified of a financial penalty immediately before publication, and says this would not allow time to prepare a response to hostile press queries.
C4 criticises the absence of any appeal process: “Ofcom’s proposal not to have any appellate procedures within these procedures is contrary to natural justice and a remarkable proposal for a regulator to make. For example, other regulators such as the Advertising Standards Authority, PhonePayPlus, the Information Commissioner, Financial Services Authority, and the Press Complaints Commission all have such procedures. A system without such appellate procedures would be an unreasonable system for Ofcom adopt when judged against comparable regulators and accepted standards of regulatory practice.” And recommends “The sanction decision is taken by Ofcom with a right of appeal to a separately constituted panel consisting of members of Ofcom who have not had any involvement in the previous procedure.”

Information TV Ltd
This response is very negative, and points out that while ATVOD was initially supposed to regulate about 150 organisations the indications are that they are pursuing many small organisations, and potentially could cover over 10,000 organisations. They claim that the EU definition is used but without the EU context. They state that ATVOD has only started to define its standards.

Person 1
Clarification of timescales would be helpful.
The document states that Ofcoms decision is final. This person says there should be mention of external legal processes such as the Administrative Court and European Court.
It is suggested that the regulations could be in breach of EU law on the free movement of services.

News International (NI)
This response is on behalf of Times Newspapers and New Group Newspapers, rather than Sky.
NI is concerned that 10 days may not be long enough to lodge an appeal. It also makes the point that there is a difference between 10 days after Ofcom reaching a decision, and 10 days after a broadcaster being notified “If time were to run from the date of
the decision, as Ofcom proposes, the time available to the appellant would be
reduced by an arbitrary amount which would be unfair and inappropriate”
NI argues that 10 days may not be enough time to prepare a full appeal case.
The procedure refers to written evidence. NI suggests video material should be allowed.

Universal Networks (a division of NBC)
UNI operates 25 subscription based TV channels with Ofcom licences plus various other services.
They suggest a minor tweak to the 10 days in which an appeal can be launched.

Virgin Media
Virgin Media is a Board Member of ATVOD, the coregulator.
Ofcom states that if they depart from normal procedure Ofcom will explain its reasons. Virgin asks if the explanation will be before or after and says the affected party should be able to comment on this departure from procedure.
The consultation says the procedures may be amended at any time. Virgin assumes that this will not apply to appeals already under way.
10 days to appeal: Like NI, Virgin says this should run from delivery of notification, not from the decision date.
Virgin criticises the short timescale for requesting appeals. Not only do they say appeals may be “incomplete or unclear” they also posit the risk that broadcasters may request appeals on a protective basis, so the short timescale could result in MORE appeals than a longer one.
They note that most appeals will be non-urgent and that Ofcom has 30 days to reach a decision – Virgin suggests broadcasters should 20 days to request an appeal, not 10.
Virgin says the grounds for appeals should be wider.
Ofcoms proposal says the request for appeal must include all evidence to be taken into account. Virgin say it may not be possible to supply all the information in detail up front.
Ofcom says it may reduce the timescale for an appeal where a case requires urgent attention, including cases that could lead to crime or disorder. Virgin says the power is “draconian”. They point out that a separate rule permits immediate interim action, rendering reduced timescales unnecessary.
“Proposal: where Ofcom receives a request for an appeal any enforcement action will usually be suspended until such time as Ofcom decides that the appeal has been resolved.”
Virgin queries vague and undefined use of the word “usually”. (Authors note: Again Ofcom show that they are complete amateurs with no concept of legally watertight processes).
The proposal is unclear about whether third parties would be fully informed. One scenario is that there could be dispute about who the actual service provider is.
Virgin propose 2 days notice before enforcement action takes place. (Authors note: Stopping a service, let alone changing it, adding new controls or training staff takes time. As written enforcement action might legally take effect the minute a decision is reached inside Riverside House. Ofcom already has a track record of slightly retrospective rules, saying new Broadcasting Code rules take effect the day they are published – ie from midnight – despite only being published after 9am).
15 days to reply to a sanctions proposal – Virgin suggests 20 days.
Virgin sees to reason to reduce the timescale for sanctions to 24 hours. Taking down offensive material yes, imposing a fine no.
Ofcom proposes omitting the amount of a fine from advance notification supplied to the broadcaster. Virgin sees no reason to keep this secret.

Ofcom has has just published responses to 2 broadcasting related consultations both of which closed on 11 Feb almost 3 months ago. To date it has not published new procedures.

PART 2 Responses to the consultation on Review of procedures for handling broadcasting complaints, investigations and sanctions

There are 10 published responses to this, some more detailed than others.
There are serious reservations about whether streamlined procedures would preserve fairness, the level of decision making and reduced appeal/review processes. Several respondents suggest procedures may run into trouble with the European Human Rights Conventions. Most respondent want existing Checks and Balances retained. Several suggest that bulk mediastorm complaints should be given less priority.

Bauer Media
No idea who these people are. “Bauer Media fully supports Ofcom's proposals for new procedures for handling broadcasting complaints, investigations and sanctions.”

BBC
The BBC welcomes the new “preliminary view”
They believe that removing the internal review mechanism given the new preliminary view, provided reasonable representations are still accommodated. The procedure is unclear on this point.
The BBC welcomes removing Broadcasting Sanctions Committee on the grounds that Ofcom Executive is better placed to ensure consistency and proportionality.
The BBC dislikes the reduced timescale to respond to a fairness complaint, from 20 to 15 days.
The BBC has “strong reservations” about a change introduced on 16 Dec 2009 without consultation: in some circumstances Ofcom can launch a fairness or privacy investigation without a complaint from the person affected. Apparently complaints were put to Ofcom on behalf of the BBC, ITV, C4 and Five supported by detailed legal argument in a letter dated 26 Feb 2010. Five months later, 30 July 2010, Ofcom replied saying that the broadcasters “construction” was “wrong”. Strong stuff apparently dismissed out of hand. The BBC uses this opportunity to formally raise the issue.

Channel 4
There is a detailed 21 page response from C4, too much to detail here. Highlights will be listed.
Like the BBC C4 mentions the new fairness procedure introduced “without any attempt to consult or notify licensees”. Harsh words, particularly as C4s board are appointed by Ofcom.
C4 say they are sympathetic to streamlined procedures but say “Ofcom should not jettison principles of natural justice” and they are concerned that changed procedures may “operate unjustly”.
C4 takes issue with the proposal to “depart from procedures” saying they create “risk of procedural incompetence or unfairness”. Harsh words.
Regarding anonymous complaints, C4 says powerful interests including foreign governments have tried to hide behind a veil on anonymity. They also state that Ofcom complaints can be a way of gathering pre-trial information without going through court protocols. This is a serious and well thought out legal point and illustrates exactly why regulators should follow proper consultation processes.
C4 says that the new pre-assessment process means the broadcaster only begins to “make representations once the complaint has been pre-judged”. There is a difference between deciding there is a case to answer and having already formed a preliminary view (of guilt) before receiving any representations from the licensee. “unjust, unreasonable, unfair”
All reference to Ofcom timescales are removed. As C4 point out, delay may mean that memories have faded and staff have moved on. (This seems one sided.)
C4 criticise the proposal to shorten timescales at Ofcoms whim.
Removing the opportunity to preview Decisions for inaccuracy and typographical errors “could have consequences for Ofcom”. Beyond the reference to “publication of inaccurate material” this point is not explained, but it may be a warning that Ofcom could be sued for libel.
The absence of a review mechanism means “even the most fundamental and easily corrected errors” can only be corrected by Judicial Review.
C4 say that the removal of appeal procedures is “contrary to natural justice and a remarkable proposal for a regular to make” and lists other regulators with appeal procedures. The absence an argued reason for this is highlighted and it is suggested that this is no more than a cost saving measure.
C4 points out that overall the impact may be more expensive due to more court proceedings.
The non-disclosure rules are queried.
Regarding fairness and privacy, Ofcoms suggested power to vary its procedures when it sees fit is disputed. They refer to articles 6 and 10 of the European Charter of Human Rights.
Like the BBC, C4 notes that the fairness procedure was unilaterally changed to allow investigations without complaints from the subject. This may or may not be connected with the Ross/Brand investigation: If memory serves correctly the elderly actor pilloried and his grand daughter took a dignified stance and did not complain.

Interestingly C4 note that “Ofcom’s duty to protect under Section 3(2) (f) of the Act is not an absolute duty to protect. It is in fact a qualified duty to provide ‘adequate protection’. Ofcom’s duty under Section 3(2) (f) is therefore more than adequately met by” (lists old legislation). Section 3/2/f relates to unfair treatment and privacy, but the same phrase provide ‘adequate protection’ referring to a qualified duty is used in section 3/2/e regarding offensive and harmful material. Legal opinion from C4 on how far to take protection.

C4 goes on to say that they do not believe Ofcom has complied with its duty to ensure freedom of expression and that the proposed power is not set out in law (“prescribed”) necessary or proportionate. This is in relation to privacy and fairness but is interesting stuff.

C4 go on to point out a conflict of interest. In the absence of a complaint from the subject of a broadcast, Ofcom would be both the complainant and assessor. Again C4 refer to the Human Rights Charter (right to an impartial trial).

The proposed process removes an existing mechanism for “resolution of complaints by, for example; the publication of clarificatory statements, apologies or corrections in writing, editing or undertakings not to repeat broadcasts” (paras 18 and 19). (This appears to remove a very useful mechanism and significantly reduce they ways in which Ofcom can act to just In Breach findings, Fines and Suspensions.)

C4 opposes abolition of the Sanctions Committee, noting that the pool of potential adjudicators would be spread wide. It notes that under the current system there is a balance of skills including lay members.

Channel 5
Fives says that forming a Preliminary View (before involving the broadcaster) is fraught with procedural dangers.
They say it is a “fundamental tenet of legal and quasi-judicial procedures for there to be a proper (appeals) procedure through which decisions can be challenged” and point out that grounds for appeals are already limited.
Five points out that in practice there are very few appeals. (Authors note: So what does Ofcom have to gain from abolishing the procedure? Unless it expects more appeals once it introduces Preliminary Views.)
Five then goes on to give the example of Sex: How To Do Everything. Ofcom found 3 separate breaches of the Broadcasting Code. Five appealed, argued context and pointed out some factual errors. All 3 In Breach findings were overturned.
“The new procedures Ofcom is putting forward are likely to mean that under delegated powers the same individual who draws up the preliminary view will also be taking the final decision” (Authors note: even the French do not allow an Investigating Magistrate to decide Guilt or Innocence).
“Even if the preliminary view is drawn up by one officer and the final decision taken by another, both belong to the same standards department with the same (direct or ultimate) line manager - which means no-one from outside the team whose job is to take an initial view on all complaints would be taking an independent view. We strongly believe the independence of the appellate body to be essential to any bone fide appeals procedure.”
Five point out that abolishing the “appropriate resolution” procedure (probably paras 18 and 19 that C4 mention) will increase Ofcom workload and force privacy/fairness complainants to go through the full formal process even if they just want their points addressed.
Five “believe it is essential that an independent body hears appeals” and “some potential sanctions – a fine or revocation of a licence – decisions should not be taken by officers alone or by any individual members, lay or professional”
The reduced timescales are opposed.
Regarding delegated powers, Five states it is important to know the name of the caseworker making a decision and contentious and complicated cases are considered at the highest level. (Authors note: This is of course exactly what Ofcom is trying to avoid by delegating casework to lower level employees).

GMG Radio (Guardian Media Group)
GMG operates 14 radio licences and is a stakeholder in Digital Radio UK.
They support the Based compliance, forming a Preliminary View and removing the Broadcast Review Committee.
They suggest it should be easier complainants to be directed the broadcasters own complaints procedure first.
Where this has been followed and written responses obtained, the complainant should inform Ofcom when lodging a complaint.
Ofcom should take into account when the media inflate complaints to create impact by volume.

Information TV
This response notes that people feel able to complain “almost on a whim” for “no reason other than their personal view” and that it is becoming easier to complain to the regulator than make the broadcaster aware of a problem.
They feel “there is a need for a stronger sense of 'proportionality' in responding to
complaints, which takes at least some account of the standpoint of the complainant.” This point is not explained, but may be a reference to complainants with a particular agenda or world-view.
They point out that investigations are “exceedingly onerous” and imply that a small number of viewers can have a large impact. Helpfully they suggest that Ofcom assess the likely outcome up front and tailor the investigation appropriately (eg a cursory examination if the likely outcome is a slap on the wrist, detailed heavy investigation if it might result in a major fine).
They say complaints should approach the broadcaster first.

Person 1
Disagrees with Ofcoms current powers.

Person 2
Supports the Issues Based approach.
Ofcom should only investigate the segment complained about, not an entire program.
Complaints should be advised of the outcome, rather than directed to a web page.
Complaints should be advised of detailed findings, as per Better Regulation principles, not just told In Breach or Not In Breach.
The time to register a complaint about Offence should be reduced from 20 days to 7.
This will help avoid newspaper frenzies.
Anonymous complaints should not be investigated.
A Preliminary View means the caseworker has already decided something is In Breach before involving the broadcaster.
Ofcoms interpretation of harm and offence goes beyond stated case law and the Human Rights Act.
Removing the Internal Review mechanism will be detrimental (and result in inconsistency).
50 days for an Ofcom decision is excessive. It should be 10 days.
Removing the Broadcasting Sanctions Committee will lead to disproportionate (and inconsistent) sanctions. Smaller broadcasters are unfairly targeted due to their inability to see judicial review. Larger broadcasters generate the majority of complaints.
It cannot be balanced when the same person reaches an In Breach decision and decides the penalty.
The current 90 day timescale for Ofcom to reach a decision is excessive.
Although under pressure to reduce costs licence holders must be a fair and just heading in accordance with English and European law.

Person 3
Supports efficient processes and elimination of duplication.
Issue Based work must not be an excuse to set aside complaints until enough have built up to create the impression of an issue.
Says time dilutes complaints.
Complaints must be put to broadcasters in a timely fashion.
The Preliminary View will eliminate some timewasting but broadcasters must have time to respond properly.
The Internal Review Mechanism should be retained to ensure accuracy. If not Judicial Reviews will result.
Eliminating the Broadcasting Sanctions Committee would result in minimal savings. This should be retained.
If eliminated the names of caseworkers taking decisions must be published.
Controls are needed to eliminate bias. Decisions must be made by 3 people, none of whom must be on temporary contracts due to possible contract-renewal pressure.
Decisions must be made by people with formal legal qualifications.
There must be a clear separation between investigating officers and people deciding sanctions.

This person recommends that sanctions decisions are made by people who are not Ofcom employees, arguing that people who are part of the same pay and career structure cannot be independent. Also people involved in policy formation may unintentionally implement what was intended rather than follow the letter of the rules as finally implemented.

This person argues that in house decisions may breach the European Convention of Human Rights and this could eventually result in many historic decisions being overturned. They suggest that sanctions decisions are taken by a proper court or wholly independent tribunal, and suggest this model should also be used to decide if broadcasts are In Breach or not, separating Decision from Investigation.

They say broadcasters should have sufficient information to decide if complainants are genuine, malicious, campaign driven or from competitors.

The use of Restitution is encouraged whereby a broadcaster undertakes some form of compensating action rather than just getting an In Breach telling off or a substantial fine.

Complaints submitted more than a few days after broadcasts should be disregarded as should complaints from people who have not seen/heard a broadcast themselves. Complaints from people who deliberately sought out a show in order to be offended should be disregarded. (Jerry Springer? Russell Brand?)

RadioCentre
RadioCentre is the industry body for commercial radio.
“while we are keen to see a more streamlined system in place and understand the need to streamline processes in the current economic climate, we clearly do not want to see this as the expense of good judgement in the complaints process.”
Wants assurance that an Issues Based Model will not just focus on cases with the highest number of complaints, concentrating instead on seriousness.
Welcomes faster processes, but does not want to loose rigour of investigations.
Asks if informal responses to Preliminary Views will be permitted.
Objects to the reduced timetable for responses.
Urges Ofcom to complete more cases in set timeframes.
Refers to stress caused to staff by long drawn out investigations and references a case that took 15 months during which it was “very difficult for the station in question to
carry on with business as usual”.

Glad to see that my detailled response to the complaints consultation was accepted by Ofc@m as i only managed to send it with 2 minutes to spare and then i couldn't use their specific mechanism to send it.
Had to send it to their general e-mail address but included all the relevant references required to ensure acceptance, formal complaint awaited if not accepted.
Suprised that it has taken so long for them to post responses but it may be that they have already started setting out their response to the concerns raised by all parties.
Time to start reading through the other responses to see if any common ground points were raised.
Only time will tell if these responses guide Ofc@m away from their pre-desired path of reducing review provisions for the sake of saving money.
All broadcasters must have a fair and equal chance to challenge this regulator when complaints are decided upon.

Several submissions imply that Ofcoms procedures might be in conflict with requirement for an impartial trial under the European Charter of Human Rights.

(23-02-2011 23:39 )eccles Wrote:  Consultations Round Up

"Dispute Resolution Guidelines - Ofcom’s guidelines for the handling of regulatory disputes" - 17 Dec to 11 Feb - no Responses published yet.

6 responses published. No policy update.

Quote:"Revising the penalty guidelines" - 17 Dec to 11 Feb - same 5 responses as yesterday (Sky, BT, Virgin, Channel TV, Talk Talk).

Still no policy update on this.

Quote:"Review of procedures for handling broadcasting complaints, investigations and sanctions" - 17 Dec to 11 Feb - no Responses published yet.

10 responses published. No policy update.

Quote:"Procedures for handling appeals on scope and for imposing sanctions in relation to On-Demand Programme Services" - 17 Dec to 11 Feb - no option to view responses, response page still open.

9 responses published. No policy update.

These 4 consultations ended over 3 months ago. There only seem to have been a small number of responses (there may be more marked Do Not Publish), but judging by the lack of policy updates they may have raised tricky issues.

How does this compare with other consultations around the same time? The consultation immediately before, on Crown Spectum Access, closed on 28 Jan and new regulations were issued on 11 Feb and a full report, including a digest of comments and response, was published on 3 March.

The consultation on BBC coverage of the Six Nations Tournament closed on 14 Jan and no statement has been issued.

Ofcoms own Draft Annual Plan closed for consultation on 1 March, just 31 days before it should have taken effect, though it does reference a 4 year cuts plan. 39 responses have been published and no final statement has been issued. Curiously 4 responses are from Ofcoms own Advisory Committees. Another response is from the Communications Workers Union, who note that while proposing cutbacks there is no proposal to reduce its international travel and committments (para 42). "This is a relevant concern not only because consumers will see the contradiction but also because some of Ofcom’s international activities are not directed nor approved by the statutory duties of the Communications Act 2003." Verizon wants funds raised in the Telecoms sector to be spent to telecoms regulation, not broadcasting. Given the scope of the changes and legal issues (redundancy, continued regulation) it is not surprising that the comments are still being digested and a response has not been published.

Mobile Call Termination Dispute Resolution: Closed 18 Feb, 7 responses, new policy announced 5 April.

Mixed results then, with more complex policies still not wrapped up, but it is surprising that something as seemingly simple as revised penalty guidelines has not been closed off after 3 months.

Ofcom has today published its Final Statement on one of the December consultations "Review of procedures for handling broadcasting complaints, cases and sanctions"

Broadly speaking they proposed streamlining some of the decision making, taking out an internal review stage and delegating some decisions to staff instread of the Content Board. The responses were mixed and included criticism of some aspects by large reputable broadcasters. There is a lot to take in but it looks as if most of the proposed changes will go ahead, with just a bit of tinkering around the edges. Broadcasters now have 20 days instead of 15 to respond to a complaint (great if the director is on 3 weeks holiday in the Caribbean or over Christmas) and, if I have speed read correctly, serious decisions will now be rubber stamped by Board level members. On the negative side some decisions will be taken by a panel of 3, 2 of whom are specific job holders, some the same 2 people will hold the majority of votes in every single decision at that level - no court in the land has the same judges sit on every single case.

http://stakeholders.ofcom.org.uk/consult...ts-review/

Review of procedures for handling broadcasting complaints, cases and sanctions - Final statementPublished and effective 1 June 2011

A brief summary – apologies for the length

First, like most Ofcom policies this is effective immediately it Is published. How does that work? Is it backdated to midnight, a form of retrospective legislation? Or does it just apply from the second it is published, and if so where is that time recorded? More importantly, what happens to cases already being heard? Do the rules change part way through?

Back in December 2010 Ofcom published proposed changes to various procedures including this one. In part this was a periodic review, but it was also driven by a desire to cut costs by streamlining processes. The consultation closed in February and it has taken 3 full months to wade through all 13 responses, one a week, tweak the policy and get Board level approval.

There is nothing in this about disregarding newspaper campaigns, complaints from people who deliberately sought out offence, timeliness of complaints, or anti-competitive behaviour.

Another interesting point is that this is yet another example of Ofcom acting as its own arbitrator. Ofcom proposes and decides on changes to its own procedures. For proper impartiality they should not be writing their own rules. If this were a business there would be howls from the City about breaking Cadbury Rules on corporate governance.

MAIN POINTS
Move to an Issues Based investigation system.
Reach a Preliminary View early in investigations, before hearing the full defence argument.
Preliminary Views can be reached without broadcaster representations in matters of fact.
There are tight timescales for broadcasters to formulate responses.
Drop the internal review option (for a second opinion from a grown up).
Anonymous complaints will be considered.
Privacy and Fairness cases can be started without a complaint.
The Sanctions Committee is abolished.
Instead 3 senior people (2 fixed) will decide Sanctions.
It is implied that staff will carry out investigations and make decisions.
There are no Conflict-of-Interest provisions.

DETAILS
1.13 Broadcasters can comment on a Fairness & Privacy complaint early in the process. Ofcom will then form a preliminary view and present that to the complainant for comment, then the broadcaster.

In Standards cases the broadcaster can comment on a complaint during the initial assessment. Ofcom then forms a preliminary view. The broadcaster can then comment on (the more substantive) preliminary view. (Accepted with minor changes).

1.14 Concerns raised included issues about transparency and knowing who decision makers were. In effect the above proposals would create anonymous administrative judges out of salaried staff.

2.1 “Ofcom has decided to adopt the Procedures to meet our relevant statutory duties …” This really is amazing if taken at face value. It suggests the statutory regulator proposed changes that did NOT meet their statutory duties. Or perhaps I am reading too much into it.

Paragraphs 2.11 to 2.16 define “effective, efficient and fair”. Thanks Ofcom, we all needed help with that. Fairness is defined as being “fair to all relevant parties”, in other words “fair” is defined as “fair”. The BBC has criticised this kind of circular definition in the past with reference to “Competitions”. Literacy and clear thinking are not Ofcoms strong points, they major on Emotional Intellegence, or EQ. [/rant]

There is no mention of a requirement to be impartial or unprejudiced. These procedures create a clear risk that Ofcom will Pre-Judge as decision makers will have been involved with the decision that there is a case to answer and policy formation.

2.23 Ofcom retains the right to depart from its own procedures, but will explain why.

2.24-2.29 Rules about oral representations are a bit clearer so parties know in advance the procedures that will apply and to avoid “tailor[ing] procedures to particular cases in an ad hoc manner”.

2.30-2.33 Ofcom will now allow Third Party Representations in Privacy and Fairness cases, but only where directly affected.

2.34-2.40 There will be no opportunity to ask for an Internal Review. Broadcasters can make “first and last” representations. At the first representation, after the Preliminary View broadcasters can, apparently, point out errors in Fact and Law. This suggests that the Preliminary View will be quite advanced, and legally watertight by this stage, rather than simply an opinion that there might be a case worth investigating further. This is supposed to be “before Ofcom makes decisions” (2.40) but clearly the decision will already have been taken, and simply requires proofreading and signoff.

Nowhere in the Statement or Appendix B (detailed Procedure) does it state WHO will carry out an investigation. The implication is that investigation and de facto DECISIONS will be taken by low level employees, rather than specially appointed Content Board members, many of whom have senior level broadcasting experience.

(Appendix B footnote 17: “Members of Ofcom's Content Board will be provided with all Decisions before they are provided to the broadcaster.” It is not stated why, unless just for awareness. There is no suggestion that decisions have to be reviewed or endorsed.)

But Appendix B 1.23 says there may be cases where Ofcom does not need representations from the broadcaster before forming a Preliminary View. These will be cases where the breach “is a matter of objective fact” such as number adverts or flashing images. This directly contradicts the statement above about broadcasters always being able to make first representations. How long an accidental flash is ruled to be R18 as “a matter of objective fact”?

2.41-2.44 Fairness and Privacy complaints can now be heard “in exceptional circumstances” without the individual complaining. Who? When? Why?

2.45-2.56 Broadcasters will now get 20 working days to respond to complaints instead of 15. In this time they must “fully research, draft and finalise statements”. Have you ever tried to get senior managers to sign off a document in a large bureaucracy, even without lawyers being involved? In August? Privacy complainants then get 10 days to respond to the Preliminary View, then the Broadcaster gets 10 days.

There is no mention of how long Ofcom gets to form a View, or complainants who wait a month to say they were offended. (Appendix B 1.13 Complaints about Content should ordinarily be submitted within 20 working days of the broadcast. Note this is 20 working days – 4 weeks.)

(Appendix B 1.21 Ofcom aims to complete an Initial Assessment in 15 working days. That’s only an (undefined) Initial Assessment, and even that is only an aim.
1.24 says Ofcom “aims” to complete cases it takes forward for investigation in 50 days, but that generous timescale is only an aim, unlike the hard time limit imposed on broadcasters with demanding schedules.)

One respondent said “it is misconceived that Ofcom should take a preliminary view on the merits of a complaint before representations are closed.” (2.56). The Kennel Club complaint against the BBC springs to mind, where it is rumoured that during initial stages of the investigation Ofcom “asked odd questions” and the BBC was not aware of the nature of the complaint it was answering. It is rumoured that they threatened to take Ofcom to court over defective procedures, but the BBC themselves maintain a dignified silence on this.

2.65-2.68 The scope of Standards procedures has been narrowed from “breaches of broadcast licences” to Content Standards as defined in section 319 of the 2003 Communications Act. Er, right, Contents Procedures now relate to Content. Administrative issues (presumably recordings, de facto ownership, type of licence and so on) will be dealt with under a new Procedure, just as soon as Ofcom write it.

At present there does not seem to be any Procedure for dealing with Administrative matters.

2.69-2.77 Ofcom drops the existing rule about not considering complaints from anonymous complainants. “issues of complainants’ credibility and motives, which might otherwise be reason for disclosure of their identities, do not appear to Ofcom to be particularly relevant … . Nor does Ofcom see why a broadcaster would … need to know a complainant’s identity … to defend its position on the question of whether a Standards requirement has been breached.” (2.74).

2.87- Ofcom proposed that the Sanctions Committee be abolished and anyone with delegated authority could issue Sanctions. They now say the identity of decision makers should be known in advance, they should have relevant expertise and seniority and are consistent. For Content cases this will be a committee of 3 “Ofcom’s Director of Standards and the Group Director of Ofcom’s Content, International and Regulatory Development Group together with a Non-Executive member of Ofcom’s Content Board”.

2.92 The idea that Sanctions should be heard by people not involved in the original decision is rejected.