Ofcom may soon regulate the BBC, yet we know it already struggles to treat the public as citizens and not just consumers. Peter Lunt, Professor of Media and Communication at the University of Leicester, and Sonia Livingstone, Professor in the Media Department at the LSE, set out some of the key challenges.

The recently-published White Paper, A BBC for the future: a broadcaster of distinction, outlines the government’s intentions regarding the BBC Charter – charter renewal being the moment when governments can legitimately change the terms under which the otherwise independent BBC operates.

While acknowledging that the UK benefits enormously from the BBC’s continuing excellence and contribution, the White Paper enumerates the BBC’s many problems during the last charter period – including high remuneration for retiring executives and star performers, the focus on highly-rated popular programmes over ‘distinctive’ programming and the unsuccessful Digital Media Initiative (£100 million).

A problem of governance

Significantly, the White Paper positions these as resulting from the BBC’s two-tier structure of governance and regulation, where operational management (“governance”, in Clementi’s terms) is the responsibility of the Executive Board and this in turn is regulated by the (“arm’s length”) BBC Trust. Crucially, the Trust has too much to do (strategic direction, licencing channels, public value testing, etc.) and, more problematically, its responsibilities overlap with those of the Board – including in strategy, regulating content, accountability and managing public engagement.

The White Paper accepts the recommendation of the Clementi Report that the model in which the BBC both governs and regulates itself and the complexities of the relationship between the Executive Board and the Trust are flawed both in principle and in practice. Consequently, the White Paper proposes radical solutions:

“How the BBC is governed and regulated is crucial to its success, as it is for other public and private sector bodies.
 It requires building the right framework of accountability, incentives and checks and balances necessary to ensure the BBC acts in the public interest, maintains its independence, delivers for licence fee payers, takes account of its market impact and operates efficiently and transparently.” (p. 47)

The ground for the White Paper was cleared by the Clementi Report which considered three models for BBC regulation: self-regulation; regulation by a specialist regulator (“Ofbeeb”) and regulation by Ofcom. Clementi recommended forming a unitary BBC Board to run the BBC and the appointment of Ofcom as an external regulator. In short, for the first time in its history, the BBC would no longer be self-regulating:

“The new Charter will therefore: create a unitary board for the BBC; introduce full external regulation of the BBC by Ofcom; reform the mechanisms of regulation including establishing a new operating framework and operating licence regime; separate the Charter Review process from the political cycle; make the BBC more accountable to the nations of the UK; reform the BBC’s complaints system; set new expectations for public engagement and responsiveness.” (p. 47)

Is Ofcom the right solution?

There seems to be broad support for the proposals to clarify and strengthen the management of the BBC through the formation of a unitary board directly responsible for strategy, public engagement, accountability for meeting the terms of the Charter and for BBC outputs. Nevertheless, immediate controversy broke out regarding the membership, process of appointments, and responsibilities of members of the new board. Where hitherto, it has been the Trust not the Executive Board that is appointed through the public appointments process and the Trust that liaises with Ofcom (for example, over the regulation of impartiality), now this will apply to the BBC Board directly. Precisely through this appointments process, it is now hoped to strengthen the BBC’s and assure its independence.

Also controversial is the proposed role of Ofcom as a powerful external regulator of the BBC, although interestingly the Director General is quoted in the White Paper as already welcoming the idea that a stronger BBC should be held accountable to a strong regulator:

“I welcome an external regulator reviewing the delivery of the BBC’s remit. And having the power to impose remedies if we fail to meet our purposes or breach our service licences.” (p. 51)

As an external regulator of the BBC, Ofcom would regulate in three broad areas: content standards; oversight of BBC’s Charter obligations; and assessing the impact of the BBC’s activities on the market. Ofcom will achieve this by monitoring and reviewing the BBC’s performance; establishing a licensing regime for the BBC; regulating editorial standards; holding the BBC to account and acting as an appeal body for complaints.

Ofcom’s powers and operating principles will need revision to take on the role of external regulator of the BBC as it is a statutory body established by the 2003 Communications Act. For example, in regulating content standards, Ofcom already has a role in relation to harm and offence but not, until now, in relation to bias and impartiality, across the range of BBC programming. But does and can Ofcom, familiar with regulating commercial news and current affairs, work to the standards expected of (and by) the BBC? In the face of such concerns over the extension of Ofcom’s powers, its CEO Sharon White has expressed confidence in Ofcom’s ability to undertake this responsibility.

In short, Ofcom has proved itself well equipped to conduct market impact assessments in its role as an economic regulator, and it has a good record in evaluating complaints against broadcasters in relation to the Broadcast Code. However, it is less clear that Ofcom will be able to ensure the BBC meets its public service obligations, including the new requirement directly to engage the public as citizens as well as consumers (p.61). Although Ofcom’s primary statutory duty includes furthering the interests of citizens, the past decade has revealed Ofcom’s difficulty in this area, struggling to define the citizen interest.

So while the White Paper seeks to enhance accountability to the public and enhanced public engagement by the BBC this will challenge both the BBC, which still operates in many ways as an elite institution, and Ofcom which is more at home in meeting its obligations to consumers than those to citizens.

Unanswered questions on implementation

The White Paper establishes a framework for the governance and regulation of the BBC but much work will need to be done to implement these changes. How this work is done will materially affect whether the White Paper’s positive intentions are realised, raising critical questions, including:

• Will the BBC Board be appointed and function in a way that safeguards the BBC’s independence?
• Will the arrangements for Ofcom’s regulation of the BBC ensure public and citizen concerns do not lose out to competition and market issues?
• Will the outcome of this new settlement satisfactorily balance independence, accountability, innovation, distinctiveness (the buzz word of the current debate) and market impact?

With these questions as yet unanswered, one can understand the sceptical vigilance by BBC supporters regarding what can be interpreted as an incremental undermining of the BBC’s power and standing. Moreover, the White Paper calls on the BBC to consider its future in even more radical terms by developing new partnerships, generating income beyond the licence fee, undertaking greater public engagement and accountability. This reinforces the concern that while the White Paper offers more support for the BBC than many expected, the door is now open to more radical reforms.

What will Ofcom’s role be in this? What of the BBC’s other friends? Can the future be less polarised than the past, in terms of the struggle between BBC supporters and reformers? Given the requirement for greater direct public engagement, what can be expected of the public itself?

This blog gives the views of the author and does not represent the position of the LSE Media Policy Project blog, nor of the London School of Economics and Political Science.

This post first appeared on the website of Open Democracy and is reproduced here with the authors’ permission.