Twelfth Report - Draft Media Bill: Radio Measures

Local news and information is what makes many people turn to local radio and we agree that the Government should prioritise this area. However, we are concerned that Ofcom regards its responsibilities as unclear, especially given that the Government committed six years ago to providing greater clarity. We recommend the Government provide Ofcom with clearer guidance regarding enforcement of the obligation on local radio to provide locally-gathered news. This guidance should either be included on the face of the Bill, or published alongside the introduction of the Bill to ensure Parliament is able to scrutinise it appropriately.

DCMS says that its intention is to use the power to make regulations regarding digital radio stations’ localness requirements only in consultation with Ofcom and other stakeholders. We cannot envisage a scenario in which it would be necessary for the Secretary of State to exercise her power without consultation. We also believe the best legislative practice is for the Government’s intentions to be clear on the face of the Bill. We recommend that the proposed power to make regulations regarding localness requirements is amended to require consultation with Ofcom.

The Government has demonstrated a necessity for the power to regulate for localness requirements to be so broad as to include amendment of any Act of Parliament. This power should be restricted to specified Acts in line with similar provisions in the Communications Act 2003. We recommend that the Bill should specify those Acts of Parliament which would be subject to this power. We recommend that the Bill should specify those Acts of Parliament which would be subject to this power. (Paragraph 15) Radio selection services

The radio industry has legitimate concerns about the potential for larger platforms to control access to stations and drive audiences elsewhere. While listening to radio still makes up the majority of audio consumed over smart speakers, and smart speakers only account for 14 percent of total radio listening, the balance of power is likely to move away from stations and towards platforms over time. This shift presents a risk to the radio industry, which the Government needs to address if the industry is to continue to thrive in the long-term. We strongly support the inclusion of provisions on radio in the Media Bill, and recommend the Government includes the Bill, with these measures, in the legislative programme for the next session of this Parliament.

The radio industry and platforms raised legitimate concerns about the extent to which the Department for Culture, Media and Sport has examined the implications of the legislation. That the Department did not publish a full impact assessment for the radio selection services provisions alongside those for other Parts of the Bill has made it more difficult for us, and those directly affected by the Bill, to consider the impact it will have. While we support the overall aims and provisions of the Bill, we recognise that they are a step-change for the sector and it is vital that the Government 22 Draft Media Bill: Radio Measures engages with platforms and other technology stakeholders significantly and at pace to get the detail right. We urge the Government to pursue its technical engagement with stakeholders with the utmost urgency and to provide an update on progress to us when the House returns in September. We urge the Government to pursue its technical engagement with stakeholders with the utmost urgency and to provide an update on progress to us when the House returns in September.

The future risks to radio are not confined to voice-activated devices. Platforms can make it very hard for car drivers to find radio, simply by self-preferencing their own or others’ content and leaving listeners to swipe through later pages to find their choice. Connected car manufacturers and the providers of in-car systems could choose not to offer broadcast radio at all and can control which apps are available. As a result, we are concerned that the Government may have overestimated the extent to which listeners are easily able to find their preferred stations in in-car systems. Noting the Government’s current position that in-car infotainment systems should not be included within the scope of the Bill, we recommend that the Government and Ofcom should proactively keep this issue under close review. Noting the Government’s current position that in-car infotainment systems should not be included within the scope of the Bill, we recommend that the Government and Ofcom should proactively keep this issue under close review.

The Secretary of State’s power to amend the definition of a radio selection service is crucial for the future-proofing of the regulatory scheme, including for in-car systems as well as for new and emerging technologies. While we welcome Ofcom’s horizon-scanning role, any use of the power to amend the definition of a radio selection service should be accompanied by clear evidence to inform the decision by the Secretary of State and by Parliament. We recommend the Government redraft the Secretary of State’s power to amend the definition of a radio selection service to require the Secretary of State to consult Ofcom before issuing regulations.

There is broad agreement between platforms and broadcasters on the need for provision in the Bill to ensure legacy devices can be exempted from requirements on radio selection services. We believe that allowing Ofcom to exempt some previously- designated devices on legacy grounds would address this issue. We recommend the Bill be amended to enable Ofcom to de-designate legacy devices so that they are no longer subject to the provisions.

We acknowledge the Government’s preference to avoid putting in primary legislation a number specifying what a “significant” number of users is and what “used by” means. In order to adapt to reflect changes in technology and audience habits, we believe that these terms may be best judged by Ofcom under delegated powers. Accordingly, we welcome Ofcom’s role in informing the regulations designating or specifying radio selection services and the duty on the Secretary of State to give reasons if her regulations differ materially from Ofcom’s recommendations.

We disagree with the Government’s conclusion that the negative resolution procedure is appropriate for regulations designating a radio selection service or amending its definition. The Bill does not require the Secretary of State to accept Ofcom’s recommendations and allows her to substitute her own. The requirement Draft Media Bill: Radio Measures 23 to give reasons if the regulations differ materially from Ofcom’s recommendations is welcome but will be a token gesture if those reasons are not subject to scrutiny before the secondary legislation comes into force. We recommend regulations that designate and specify descriptions of radio selection services are subject to the affirmative procedure.

The Department told us that it intended to consult Ofcom and other stakeholders before changing the statutory conditions for designating a radio selection service but this does not appear in the Bill. If the Government intends to carry out consultation with Ofcom and other stakeholders before exercising a power to make secondary legislation, that intention should be reflected in the content of the Bill. We recommend that consultation with Ofcom and industry stakeholders prior to the Secretary of State exerting the powers provided in the draft Media Bill to make secondary legislation on the designation of radio selection services be made a prima facie statutory requirement in the Media Bill.

The Government’s approach to on-demand and online-only content appears at odds with market trends. Listeners are increasingly choosing to access content on- demand or listen to online-only stations and there is merit in including these forms of content provision within the scope of the Bill. We agree that the Government should limit the Bill’s protections to Ofcom-regulated stations. However, we consider that it is possible to extend the provisions to these stations’ on-demand and online- only content without extending such protections to non-Ofcom regulated content producers as well. Limiting this provision would ensure that any extension of this legislation would only benefit those stations that abide by Ofcom broadcasting standards. We recommend the Government amend the Bill to include on-demand and online-only content from Ofcom-regulated broadcasters.

We recommend that the Bill include an explicit power to amend the definition of an internet radio service. This would enable the current definition, which specifies that only stations providing online live simulcasts of their broadcast radio service and which make “reasonable efforts” to use the same advertisements, to be amended in the future to include other types of content. Such a power should require that any amendment by the Secretary of State is preceded by a report from Ofcom and be subject to the affirmative procedure, requiring it to be actively approved by both Houses of Parliament.

The absence of a full impact assessment of the radio provisions makes it difficult to ascertain how burdensome the preferred route provisions will be. However, the evidence we heard suggests that there will be far fewer routes required than platforms are anticipating. Nonetheless we recognise that platforms will not only have to facilitate on-boarding but provide ongoing support as well and we expect these responsibilities, and their associated costs, to be considered when deciding the threshold at which selection services should be designated. Ofcom should consider the resource implications of providing preferred routes when recommending the threshold at which radio selection services should be designated. The Government should take account of this recommendation in its decision on designation. (Paragraph 57) 24 Draft Media Bill: Radio Measures