One of the most important issues to be raised at parli amentary committee stage of the Broadcasting Bill in terms of the application process for the grant of the new multiplex licences to digital broadcasters is the concept of a quality threshold.
Current requirements only specify the need for multiplex operators to appeal to a variety of tastes and interests with no requirement as to quality.
A number of MPs have raised the quality issue and, whilst the government is not currently in favour of regulation, it may succumb.The implication for lawyers is whether any quality requirements will be general or specific.
The more specific the quality requirements are, the greater the possibility of judicial review where those requirements are not met.
The current drafting of the Bill appears, in general, to increase the Independent Television Commission's (ITC) discretion in evaluating applications, thus reducing the scope for judicial review.The labyrinthine cross-media ownership provisions of the 1990 Act have kept lawyers busy.
The rules were intended to be very tightly drawn but ways of working within the letter, if not the spirit of, the Act were soon devised.
The Bill will change this.
The specific definition of 'control' in the 1990 Act is broadened by the Bill, giving the ITC the ability to deem somebody as having a controlling interest even if, in a technical legal sense, they do not.This introduces a broader arena of debate with the ITC than currently exists.
At present the ITC lacks a general discretion in giving its view on proposed structures; it simply has to decide whether a structure meets the detailed requirements or not.
In future, a major question will be whether the ITC has acted reasonably in reaching its conclusion.
Although one judicial review door for lawyers may have closed with the application process, another may be opening in the arena of cross-media ownership.The most publicly controversial aspect of the Bill is the listing of sports events.
The current text for these provisions is unclear.
Given the importance of sports broadcasting these days, substantial advice will be necessary if broadcasters and sports' governing bodies are to understand exactly how they will be affected.
The secretary of state will draw up a list of events after a consultation process, but one saving provision says that where an event is to be added to the list, any contracts concluded before the consultation process begins for that event will be unaffected.
This is bound to result in longer term agreements being put in place to maximise exclusivity for broadcasters and payments to governing bodies.The government is committed to giving the ITC greater flexibility to protect regional programming in the event of a takeover of ITV companies, and to block changes to ITV networking arrangements if proposals threaten regional programming or smaller ITV companies.
Independent producers of regional programmes are sometimes the first to spot failures to meet such obligations and they may want advice as to whether broadcasters are fulfilling their regional programming obligations.Current rules permit more than one provider of news to the ITV network to be nominated, though to date only ITN has been nominated.
An amendment is expected to limit this to a single provider to remove the element of uncertainty as to how the system would operate with more than one provider.The government is to let those independent local radio licensees who go digital 'roll' their licences forward for a further licence period.
This will be welcomed by independent stations and may make them more attractive propositi ons for takeover or merger, leading to increased corporate activity in this sector.The proposed change to Channel 4 funding -- it is expected that from 1997 Channel 4 will be paying less, or possibly no, funds to Channel 3 -- might seem to be an issue just for the two groups.
However, moves are afoot to introduce amendments ensuring that the money retained by Channel 4 is put into British production rather than, for example, US-acquired programming.
This would be a massive boost to the UK independent sector -- Channel 4 will have paid out something in the order of £300m to ITV by the end of 1997 and would lead to a significant increase in UK production activity and, consequentially, British producers' need for legal advice.Technical developments in this area are now moving so fast that broadcasting legislation runs the risk of being technically obsolescent on enactment.At the recent Royal Television Society's Fleming memorial lecture, Bruce Bond, director of national business communications at BT, suggested that for the millennium, Britain -- as the cradle of the industrial revolution -- should make itself the cradle of the information revolution and switch entirely to a digital system for the year 2000.
This would make Britain the first completely digital nation on earth.
The government is unlikely to go that far, but an amendment is to be proposed to bring forward the consideration of the 'turn off' date for analogue services to the earlier one of five years from the date of enactment or the date on which 50% of the country has digital reception equipment.
This could lead to an exponential increase in telecommunications activity as the entirety of the analogue spectrum currently devoted to broadcasting would become available for other uses with a consequential increase in workloads for telecommunications lawyers.
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