Introduction
OFCOM is the proposed title for the regulator that will be established when the UK's new Communications Bill is adopted. It is intended to replace several existing regulatory bodies, in the telecommunications and broadcasting sectors, with a single 'joined-up' regulator for the new era of electronic communication. Unless there are unforeseen interruptions to the Parliamentary timetable, OFCOM could be operational in 2003. It will take over the roles of the Independent Television Commission, the Broadcasting Standards Commission, the Radio Authority and OFTEL. It will also undertake certain responsibilities for radio spectrum management which are currently exercised by the Secretary of State through DTI and its Agencies. This is a complex re-shaping of broadcasting and telecommunications regulation that will call for very close co-operation between the old bodies and the new if a seamless transfer is to be possible. The draft Communications Bill would seem to imply that some period of shadow working is in prospect, and the vesting of powers in OFCOM will not necessarily happen simultaneously across all of the functions it is to subsume.
The driving force for a single regulator in place of the existing separated bodies is the process of convergence of the electronic media. Telecommunications, Broadcasting and the Internet are no longer mutually exclusive activities that can be treated in isolation. They now overlap to the extent that few, if any, forms of communication are unique to any one of these media. As a result, the anomalies resulting from the historical growth of separated regulation are beginning to show. Similar anomalies are evident with film and video, where comparisons with the other visual arts and inkprint highlight numerous inconsistencies in the regulatory approach. OFCOM will not be empowered to remove all of these inconsistencies, but its rationalising influence is bound to highlight them.
These anomalies are now seen to represent constraints upon both trade and artistic freedom. A piece of work that might encounter regulatory barriers in, for example, free-to-air television, could be released as a video recording with less difficulty, or transmitted by a satellite broadcaster not subject to regulation in the UK. Views on what is, and is not, acceptable in terms of content vary according to national cultures, and to cultures within nations, but the notion that the concept of acceptability should vary from one medium to another is increasingly subject to challenge. Moreover, the ambiguities that result from separated regulation make it more difficult to control 'harmful' content on the Internet, which is notoriously resistant to regulation and often carries the more extreme material that would be rejected by most other networks. Regulation of content is not simply a matter of removing offensive material, however, for it extends to the use of quotas in broadcasting, whether for maintaining a required proportion of locally produced programmes, catering for minority interests or setting targets for the provision of subtitling. All of these issues need to be reviewed, and perhaps rationalised, in the twin contexts of media convergence and the development of electronic communications in European and global frameworks.
The solution to these anomalies is seen to lie in a re-ordering of the regulatory approach. Instead of vertical separation, divided according to the type of medium, there will be horizontal separations between content, transmission and reception. Constraints on what may legally be published will be uniform across the converging electronic media, and very much in line with those applicable in others. Regulation of the transmission networks will apply the same broad principles to fixed, mobile and broadcast carriers, and reception will remain as a largely de-regulated consumer sector in which the public can exercise freedom of choice in their procurement of equipment and their selection of networks on which to use it.
Convergence involves the marriage of technologies which have hitherto been quite separated in the public perception and consequently have gathered about them a baggage of custom and practice which has now lost much of its validity. Telephony and broadcasting had very little in common when the one was exclusively carried on fixed wires and the other used only radio transmissions. That technological exclusivity vanished a long time ago but the service providers continued to manage their businesses according to established tradition. They were encouraged, and even forced, to do so by a regulatory framework that was even more traditionally structured.
A de-regulatory process in Europe began with the dismantling of State telecommunications monopolies. A particular problem was, and still is, that these monopolies owned most of the fixed network infrastructure. Even where their successors in title are obliged to offer access and interconnection to other service providers, the rate of development is still controlled by these 'incumbent operators'. Mobile and cable operators, with control of their own infrastructures, have been able to develop their services much more freely and, in doing so, have pushed at the boundaries of the old-established regulatory approach. The next stage of de-regulation is now about to happen. It is aimed at the broadcasting sector and the counterparts of all the problems encountered in telecommunications de-regulation will be seen to emerge.
De-regulation of telecommunications has been in progress for some 20 years and is not completed yet. The experience gained in this sector will be applied to broadcasting as the new EU Directives come into force over the next two years, but the detail in those Directives derives from the telecommunications sector. Translating it into broadcasting involves a venture into unknown territory. Even if analogue television is left on one side, on the grounds that it may be switched off before the new era is fully with us, the concepts of free access and universal service will have to be developed in a context of user expectation generated by the familiar free-to-air analogue services. The role of the regulator, in such circumstances, will be a crucial and a difficult one.
What the user of services might expect of OFCOM is therefore conjectural to some extent. Where OFCOM fulfils the role of existing regulators dealing with current types of service, setting out reasonable expectations should be straightforward enough. But where OFCOM will have to deal with problems that are as yet unidentified, in situations that are as yet undefined, users cannot know what they should expect. In broadcasting, expectations created in the past may be unrealistic for the future, yet there will be a set of basic principles based upon freedom, fairness and avoidance of extreme offence. These principles may be basic but their interpretation may vary widely across the spectrum of users. Finding a balance will involve much discussion, which user groups must be ready to contribute to. That discussion will be more fruitful if the contributors have had an opportunity to develop their views in advance. This paper attempts to facilitate that process.
OFCOM will have a responsibility to protect the interests of consumers, specifically including consumers with disabilities. Some of the consumer protection measures are set out in European Community law but many are left to national initiative. This is particularly so with the disability issues, where the EU Directives set out a broad duty but it is for national Governments and regulators to decide how this is to be interpreted. As this paper shows, OFCOM will have an enormous task to fulfil and disability considerations are a very small part of this total remit. Therefore, it will be important for disability organisations to persuade OFCOM to view disability in the context of mainstream policies and services. If there is any temptation to sideline disability and to introduce accessibility measures as an afterthought, it needs to be firmly resisted.
OFCOM's powers are set out in the Communications Bill, which addresses many of these issues but not all of them. Some important questions, such as the scope of universal service and the place of state funding in broadcasting, are left within the jurisdiction of the Secretary of State. As far as this present paper is concerned, that division of responsibilities is not taken into account. It seems reasonable to take any issue concerned with accessible electronic communications to OFCOM in the first instance, since that body is presented as the single regulator. Only if OFCOM declares that it has no power to consider the case should it be necessary to take it elsewhere.
In order to see accessibility for disabled people as a mainstream issue, it is vital to have an appreciation of the converging technological picture of electronic communications. This paper incorporates a commentary on the main technological features (in the Appendix) to provide the necessary background for those who are not familiar with it.
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