Media Regulation: Governance and the Interests of Citizens and Consumers

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Peter Lunt & Sonia Livingstone

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    About the Authors

    Peter Lunt is Professor of Media and Communication at the University of Leicester, UK. His research interests include audience research, popular television, the public understanding of media regulation and media and social theory and consumption research. He is the author of five books, including Talk on Television (with Sonia Livingstone, Routledge, 1994) and Stanley Milgram (Palgrave, 2010) and many academic papers. His research has received financial support from the Economic and Social Research Council UK, he has been a member of several European-funded networks and projects and has also conducted research for a number of public bodies including the Office of Fair Trading in the UK. He is currently working on a project on media, history and memory, focusing on the TV programme Who Do You Think You Are?, in collaboration with Claire Lynch at Brunei University. He is also writing about challenges to public service broadcasting and about the implications for media studies of the later works of Habermas. His future research plans include projects on the regulation of community radio and further work on the public understanding of media policy.

    Sonia Livingstone is Professor of Social Psychology and Head of the Department of Media and Communications at the London School of Economics and Political Science. Her research examines children, families and the internet; media and digital literacies; the mediated public sphere; and audience reception for diverse television genres. She has been the author or editor of 14 books, including Audiences and Publics (edited, Intellect, 2005), The Handbook of New Media (edited, with Leah Lievrouw, Sage, 2006), Harm and Offence in Media Content (with Andrea Millwood Hargrave, Intellect, 2006), Media Consumption and Public Engagement (with Nick Couldry and Tim Markham, Palgrave, 2010), and Children and the Internet (2009, Polity Press). Sonia Livingstone serves at Evidence Champion for the UK's Council for Child Internet Safety, and has, at various times, also served on the Department of Education's Ministerial Taskforce for Home Access to Technology for Children, Ofcom's Media Literacy Research Forum, the Voice of the Listener and Viewer, and the Internet Watch Foundation. In addition she has been President of the International Communication Association (2007–8).

    Preface

    What do citizens need from the media and how can this be guaranteed? Who ensures that converging communications technologies serve the public interest? Do we even know what the public needs or wants? Can a single organisation balance industry and consumer demands in regulating media and communications? Can national governments still regulate in a global network society? Why does regulation increasingly rely on individuals acting responsibly? Who should participate in the process of regulation?

    In response to globalisation, the increasing complexity of services and markets, and changes in welfare and governance, governments around the world are rethinking the nature, role and scope of regulation in a variety of markets. In this context, the UK's Communications Act 2003 established a new regulator for the media and communications sector, The Office of Communications (Ofcom), which, drawing on wider changes across Western democracies, also advanced New Labour's new regulatory regime. Ofcom took over the powers and responsibilities of regulators in the hitherto separate areas of telecommunications and broadcasting, and it has regulated the media and communications sector since 2003 through a mixture of measures to promote competition, plurality and diversity. Responsible for regulating television, radio, telecommunications and spectrum management (though not for all media, notably not music, film, the press or, curiously, that most convergent of all technologies, the internet), Ofcom has been closely observed by other countries also seeking a regulatory model to withstand the challenges of a globalising and converging media and communications landscape. Further, Ofcom exemplifies the regulatory innovations undertaken as part of the New Labour governments 1997–2010. For example, guided by principles of so-called ‘better regulation’, Ofcom has sought to reduce the regulatory burden on firms and to support self-regulation where possible. However, although Ofcom is a statutory agency with a wide range of legal duties, it has considerable discretion in how to meet those obligations, and its actions have resulted in public debate and occasional controversy.

    Crucially, Ofcom is required to consult widely with its stakeholders, to conduct and publish market and consumer research and to measure the impact of regulation on markets and the plurality of both content and suppliers. Since many of these activities are conducted in and through public processes of deliberation, in this book we propose that Ofcom has acted, with greater or lesser success, as an institution in the public sphere. In today's complex societies, the potential of the public sphere – for impartial and inclusive processes of deliberation, the weighing of evidence and a recognition of diverse interests in debating policy and regulation -must increasingly be realised, if at all, through the institutional and civil society activities that bridge the oft-separated realms of policy making and the public. The ‘public’ of the public sphere should not, however, refer only to elites and experts speaking for people in their absence. We write as researchers of television audiences and mediated publics rather than as scholars steeped in the legacy of media policy research, and we have been struck by the relative absence of the voices and realities of audiences in policy analysis, including that conducted by the academy. Unsurprisingly, then, our main focus is on Ofcom's role in relation to the public interest -although of course we would acknowledge its significant activities in many other policy domains.

    Intriguingly, Ofcom's primary duty was defined by the Act as the duty to further the interests of citizens and of consumers, a duty that has been regarded both optimistically and sceptically by observers of media regulation. Arguably, the public interest includes both the citizen and the consumer interest, although some would only align it with the former. Although Ofcom claims to represent the interests of citizens and consumers, to undertake consumer education and to engage with stakeholders (including audiences, through research and consultations with industry and the public), these regulatory roles require a difficult balance between economic regulation, consumer protection and furthering citizen interests. How, we asked, is this working, and with what consequences? In approaching these questions, our concern has been to explore how implicit and explicit conceptions of the audience shape policy developments in ways that may or may not serve the interests of citizens and consumers. Our interest in the lived realities of audiences has also attuned us to the discursive nature of policy making, leading us to look behind and beyond the actual decisions made so as to understand the processes through which decisions are reached, implemented (or not), and then re-made over time.

    This book began life as an empirical project funded by the Economic and Social Research Council, which examined the design and activities of Ofcom and the Financial Services Authority, in particular the relations they established among regulators, firms, civil society, government and the public. In the project, entitled ‘Public Understanding of Regimes of Risk Regulation’, we asked, first, how the public is represented within the new culture of regulation and, second, how the public understands its changing role and responsibility within the communications and financial service sectors, with this potentially influencing individual and collective responses to risk. To some, this is a curious question – what does it matter how the public itself understands the regulatory institutions acting on its behalf? Is the public not simply uninterested in and ignorant of the activities of regulators? Does it not crossly endorse the tabloid view of regulation in terms of unwarranted interference and ‘red tape’ promulgated by the ‘nanny state’? Our focus group interviews with diverse members of the public did indeed open with such accounts but, they then went deeper, revealing some subtle and complex views and thereby justifying our determination to include their voices here.

    In the project, as well as in this book, we did not set out to answer the simple question, is Ofcom a good thing? And has it made matters better or worse? Is the Coalition government of 2010 right to reduce its funding and limit its policy functions? No simple answers are forthcoming. Rather, in our analysis we appropriate the neutral observer role claimed by social sciences -we note, chart, explore and seek explanations. On the one hand, we note the positive marks accorded to Ofcom by many, recently including those who – as the present Coalition government puts forward in its new Communications Act – realise that much of value might be lost. Ofcom has operated during an eventful period in which telecommunications have been opened up as a market, commercial broadcasting has survived, if not perhaps thrived, in an increasingly competitive market, the digital switchover in broadcasting is progressing rather better than expected, media literacy has been widely promoted in new and creative ways, community radio has flourished, and even public service broadcasting, although constantly threatened, remains strong. On the other hand, Ofcom's critics have never been shy and there has grown up, in contrast with the above judgements, a well-articulated critique of the past decade of UK media regulation that should also be heard. This highlights the continued threats – political and economic – to the support for and independence of the BBC and other public service broadcasters, the relatively unchecked rise to power of Rupert Murdoch's News Corporation, the apparent sidelining of citizen interests compared with both consumer and, more significantly, industry interests, and the gradual shift in regulatory power from Whitehall to Brussels as European policy making grows in importance, increasingly setting the agenda for national policy.

    In the context of these fascinating and important debates, we set out to answer a more complex question. Ofcom, as we will demonstrate, has done much to provide the opportunities and the evidence base to enhance diverse forms of participation in public debate over media policy. As a competition regulator, it has extended the protection of consumers and the advancement of their interests across the range of its activities, complementing its facilitation of market and industry interests. To achieve these aims, Ofcom has operated as a publicly visible body liaising with civil society and the public as well as with government and industry. In so far as this advances the avowed values of the public sphere – argument, accountability, inclusiveness, transparency, evidence-based deliberation and decision making – our judgement of Ofcom is broadly positive. But in asking whether, by acting as an institution in the public sphere, it has improved outcomes in particular areas of media policy making, our answer is more equivocal. We remain convinced that acting as an institution in the public sphere must improve policy making in the public interest, certainly by comparison with closed, opaque and top-down approaches. But the messy realities, conflicting interests at stake and the very indeterminacies introduced by public-facing, participatory or evidence-based regulation can nonetheless undermine public interest outcomes. We explore a number of case studies of regulatory practice – public service broadcasting, the protection of children, media literacy and community radio – which illustrate the new regulatory challenges in several ways. Each is shaped by specific contingencies, from legacy traditions of policy and regulation to the immediate glare of political attention or media publicity, from the invisible hand of market or state influence to the unexpectedly persuasive appeal of new arguments or compelling evidence turning a debate.

    Eschewing an explicitly political or normative stance, our overall aim, therefore, is to integrate an analysis of Ofcom's processes of working as an institution in the public sphere with the particular relation between process and outcomes revealed through our case studies. Possibly, other case studies would lead to different conclusions, and we would welcome a larger field of scholarship conducting exactly such analyses. But time is short in the sense that Ofcom is already changing as we write, and following the design and implementation of a new Communications Act, it will surely change further. For now, therefore, we draw out the processes that have characterised media and communications regulation as regards the interest of citizens and consumers from 2003 to now, this representing a key decade in the history of the digital age. In so doing, we articulate a critical repertoire by which Ofcom's role, and that of any alternative approach to regulation (as may emerge in the UK or elsewhere, now or subsequently), may be evaluated, depending on the standpoint of future critics. And we hope that, taken together, these insights may positively inform the debates to come.

    How has, and how can, media and communications regulation further the interests of citizens and consumers? Chapter 1 reviews the changing context of governance and regulation, particularly in an age of globalisation and digitalisation, drawing out the challenges that this raises for culture and citizenship. Chapter 2 situates current theories of regulation, which examine the various forms that regulatory agencies take, and the range of strategies that they adopt, in order to focus on our specific context of media and communication regulation. Together, these chapters locate media regulation within a framework which is both wide-ranging and highly specific. As Black (2005) observes, regulatory innovation across sectors has gathered apace in recent years, partly in response to the European Commission policy to encourage national regulatory agencies, partly as a response to the perceived problems of traditional forms of legal and regulatory intervention given notable technical and market innovation and, most generally, in response to the growing dispersal of power away from the nation state in a time of globalisation.

    Chapters 3 and 4 focus the lens first on the discursive debates surrounding the framing of Ofcom's key purposes, namely on furthering the interests of citizens and consumers and, second, on the shaping of Ofcom as an institution that operates substantially in the public sphere. Hence we elaborate the context of its establishment, its statutory duties, regulatory structures and operating principles. As already noted, this means we examine how Ofcom balances its joint responsibilities to further both citizen and consumer interests, how it implements its statutory obligation to consult widely with stakeholders and to conduct and publish research so as to engage a wide range of participants in regulation and to foster public debate. Since it is beyond the scope of this book to offer a comprehensive view of all of Ofcom's structures and activities, we here review key areas of its core business, such as spectrum management and media plurality.

    Four case studies follow, selected in order to reveal the processes of regulatory innovation, research, consultation and engagement noted above. Again, these may not seem ‘typical’ of Ofcom's main work strands, but they do, we suggest, reveal its workings in areas of regulation that matter to citizens and consumers (or, audiences). They also demonstrate ways in which Ofcom has operated principally (though not entirely) within the realm of public deliberation and debate. The first case study is, perhaps, the most obvious, that of public service broadcasting. As discussed in Chapter 5, Ofcom was required by the Communications Act 2003 to review public service television although it had only limited regulatory powers over the BBC, the cornerstone of the UK public service system. Given that public service broadcasting represents a hotly contested area of media policy, this case study demonstrates how Ofcom engages public debate so as to draw on and advance beyond the considerable legacy of policy deliberation. This case study also demonstrates the limits of regulation in an area that is strongly contested by powerful stakeholders, including the government, the media industry, civil society bodies and the public.

    By contrast with the challenges of addressing this substantial legacy of policy work, Chapter 6 examines how Ofcom defined and scoped a new area of media policy – new at least to media regulators (though not educators) -that of media literacy, this being an intriguing requirement placed on Ofcom by the Communications Act. In this largely uncharted territory, Ofcom sought to develop policy to address a growing problem – the realisation that cross-border and convergent media technologies mean that regulatory control over media content is increasingly ‘out of reach’ of national regulation. Can enhancing media literacy among audiences, enabling them to exercise choice and adopt a critical stance on media content, meet this challenge, and if so, can the regulator promote this through effective stakeholder partnerships (rather than through traditional, top-down methods of control over media content and services)? Or is the promotion of media literacy less a policy designed to further the public interest than one motivated by those interests that are anxious to deregulate converging media platforms?

    The protection of children has long been a specific and widely accepted role for media regulation, though our third case study – that of the regulation of junk food advertising in a context of fast-rising childhood obesity -proved no less controversial than the other two (see Chapter 7). We use this case to focus especially on Ofcom's research activities, research providing a key means by which the audience's interests and needs, especially in the lay voices of children and parents, can be recognised within the process of expert deliberation. The limitations of evidence-based policy provide a point of critical reflection on Ofcom's activities and the ambitions of the regulatory regime it represents. The outcome of this particular case also points up the persistently less than transparent relation between the regulator and the state.

    Finally, we consider Ofcom's ground-breaking work on community radio in Chapter 8. Building on the work of one of its legacy regulators, The Radio Authority, Ofcom has succeeded in establishing a proper licensing system for community radio for the first time in the UK from 2004. This case study identifies the impact of Ofcom's commitments to enhancing plurality and diversity while also regulating competition (in this case between the emerging community sector and local radio). This case study also shows how Ofcom works closely with civil society bodies and promotes innovation in the media system by enabling the development of a licensed community radio sector in the UK, which had not previously emerged from either the public service or the independent sector despite considerable enthusiasm for the third tier of media. However, as we will see, this case study also reveals concerns over the way that regulation introduces controls that shape this emerging sector.

    These case studies, we believe, demonstrate the complexity of the background and legacy that Ofcom inherited, the difficulties inherent in adopting a variety of regulatory strategies and powers, and the importance of partnership and engagement between regulators and stakeholders from government, commerce, civil society and the public. As a statutory agency working within a strong legal framework and policy context established by government, Ofcom has nonetheless had considerable discretion regarding how to meet its obligations from its inception in 2003 through to mid-2010. In the final chapter, we reflect on the changes brought in by the Conservative/Liberal Democrat Coalition government in May 2010, as part of a reformulation of the responsibility for public policy making, for the role of quasi-independent public bodies, and the broader relations between business, state and public, several areas of responsibility (including the review of public service broadcasting) and a considerable proportion of its staffing and budget were removed from Ofcom. At the time of writing, we can only begin to speculate here on how these changes may impact on the subtle and complex balance that Ofcom has sought to achieve when representing the interests of citizens and consumers.

    Acknowledgements

    This book draws on the research project directed by Peter Lunt and Sonia Livingstone, Public Understanding of Regimes of Risk Regulation, funded by the Economic and Social Research Council (ESRC) as part of the ‘Social Contexts and Responses to Risk Network’, directed by Peter Taylor-Gooby (RES-336-25-0001; see http://www.kent.ac.uk/scarr/). For the project website and publications, see http://www.lse.ac.uk/collections/PURRR/. We thank Peter Taylor-Gooby for his support throughout the project, Tanika Kelay Laura Miller and Sarita Malik for their work on the project, and all those who kindly gave up their time to be interviewed.

    We thank all the interviewees for the ESRC project. Please note that, throughout this volume, they are referred to in terms of their role at the time (notwithstanding that several have moved role or organisation since then). Interviews included (with roles in 2005 in brackets): Colette Bowe (Chairman, Consumer Panel), Neil Buckley (Policy Director, Consumer, Competition and Markets, Ofcom), Robin Foster (Partner, Strategy and Market Developments, Ofcom), Richard Hooper (Chair of the Content Board, Ofcom), Graham Howell (Secretary to the Corporation, Ofcom), Kip Meek (Senior Partner, Competition and Content, Director of Competition Policy, Competition and Content, Ofcom), Julie Myers (Policy Manager Consumer Panel, Ofcom), Helen Normoyle (Policy Executive, Director of Market Research, Ofcom), Matt Peacock (Director of Communications, Ofcom), Tony Stoller (Executive Committee, and External Relations Director, Ofcom), Rhodri Williams (Director, Nations-Wales, Ofcom), Claire Milne (Freelance Consumer Spokesperson, Antelope Consulting), Pat Holland, Jonathan Hardy and Gary Herman (Campaign for Press and Broadcasting Freedom), Jocelyn Hay (Chairman, Voice of the Listener and Viewer), Don Redding (Campaign Co-ordinator, Public Voice), Luke Gibbs and Russ Taylor (Founders, OfcomWatch blog), John Beyer (Director, MediaWatch-UK), Allan Williams, Senior Policy Advisor, Consumers’ Association – Which?), Paul Skidmore (Senior Researcher, DEMOS think tank), Richard Collins (academic, Ex-Oftel Advisor), Stephen Whittle (Controller, BBC Editorial Policy, BBC) and Simon Pitts (Controller Regulatory Policy, ITV). As part of that same project, the authors conducted 16 focus groups with a cross-section of the UK public, totalling 116 people in all. The discussions ranged across risk and regulation issues broadly, though two sectors – communications and financial services – were explored in detail. We thank all participants for their lively conversations with us.

    We note, by way of declaration of interests, that in relation to Chapter 6 (’Media Literacy’), Sonia Livingstone acted as a consultant to Ofcom in 2005, being commissioned to review the academic literature on adult media literacy (Livingstone et al., 2005). She is also a member of Ofcom's Media Literacy Research Forum and she and Andrea Millwood Hargrave responded independently to Ofcom's first media literacy consultation in 2004, advising on the definition of media literacy and its implementation and evaluation; she has also emphasised the importance of media literacy in formal responses to Ofcom's annual plans in 2006, 2007 and 2008. In relation to Chapter 7 (Advertising Regulation and Childhood Obesity’), Sonia Livingstone acted as consultant to Ofcom in 2004 and 2005–06, having been commissioned by the Research Department to review the academic literature on the effects of food promotion (mainly advertising) on children's food choice and, ultimately, childhood obesity; this resulted in three reports, all publicly available (Livingstone, 2004, 2006; Livingstone and Helsper, 2004). From 2006–09, Sonia Livingstone served on the Board of Directors of the civil society group, Voice of the Listener and Viewer. Parts of Chapter 3 are developed from earlier texts published as Livingstone and Lunt (2007, 2011) and Livingstone, Lunt and Miller (2007a, 2007b). Earlier versions of parts of Chapter 4 were published in Lunt and Livingstone (2007). Earlier versions of parts of Chapter 6 have been published in Livingstone (2008a, 2009b, 2010). The focus group interviews are reported in detail in Lunt et al. (2008).

    We warmly thank colleagues who have read earlier drafts of the chapters that follow: Robin Blake, Ian Blair, Bart Cammaerts, Nico Carpentier, Richard Collins, Divina Frau-Megs, Lawrie Hallett, Sylvia Harvey, Jeanette Hofmann, Dale Kunkel, Peter Lewis, Greg Lowe, Kathryn Montgomery, Jill Pitt, Nick Stevenson, Tony Stoller and two anonymous reviewers. We thank Ed Richards, Ofcom's CEO, and Colette Bowe, Ofcom's Chairman, for agreeing to be interviewed in February 2011 as we were writing the manuscript. We also thank Dawn Rushen and Yinhan Wang for tidying up our text. However, the opinions expressed in the book, and any mistakes, remain our own. Finally, we thank Mila Steele at Sage for believing in this project and for being, as always, a wonderful publisher to work with.

    PeterLunt and SoniaLivingstoneLeicester and London, 2011
  • Afterword

    It has been a challenge to stop revising this manuscript in mid 2011, knowing that the situation is about to change. On 7 January, Ofcom published its Draft Annual Plan, announcing that following a major review of expenditure, it would cut spending by 28 per cent over four years, with most of the savings delivered during 2011/12. Then on 19 January, the Secretary of State Jeremy Hunt (2011a) announced ‘a radical rethink’, moving key responsibilities from the Department of Business, Innovation and Skills (BIS) to his own ministry, the DCMS, and announcing a Green Paper for the end of 2011, leading to a Bill in 2012 and a new Communications Act by 2015:

    It is now seven years since the last Act — a long time in today's fast-paced environment. Now is the moment to make sure we have the most modern, innovation- and investment-friendly legal structure in place … I am prepared to radically rethink the way we do things … This is not about tweaking the current system, but redesigning it — from scratch if necessary — to make it fit for purpose.

    In May, he issued an ‘open letter’ inviting consultation responses on the requirements for communications regulation in the digital age, a letter almost entirely focused on a deregulatory approach designed to stimulate economic growth (Hunt, 201 lb).1 We could comment further, but we have decided to stop now, having charted the history of Ofcom under New Labour, from its prehistory before its establishment by the Communications Act 2003 through to the transition to a new government in 2010. We have documented how Ofcom has addressed its responsibilities during this period across a range of domains – the review of public service broadcasting, community radio, the promotion of media literacy, developing co-regulatory arrangements in advertising and, most generally, furthering the interests of citizens and consumers. The next decade – for Ofcom, for UK citizens, for the media and communications landscape – cannot yet be clearly discerned. But we hope that our analysis offers a context, a point of comparison, and some clear criteria against which further changes in the governance and regulation of media and communications in the UK and elsewhere may be judged.

    Notes

    1 The three themes highlighted in the letter were ‘Growth, innovation and deregulation; A communications infrastructure that provides the foundations for growth; Creating the right environment for the content industry to thrive.’

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