Free to Air - Consultation
The Consultation Exercise
The purpose of this consultation exercise, which ran until from 8 April to 20 July 2009*, was to secure the widest possible views from the public, the broadcasting industry, sports governing bodies and rights holders on the three issues that the Review is addressing in order to inform the Panel’s recommendations to the Secretary of State, with whom final decisions ultimately rest, subject to consultation with the broadcasting authorities and affected rights holders.
The Panel held events in each of the Home Nations and conducted focus group research.
Below you will find the consultation document. It is available in hard copy on request, or you can download the document and it's annexes below. It is also available in the Welsh language.
- Free to Air Review - Consultation Document PDF (320kb)
- Free to Air Review - Consultation Document rtf (148kb)
- Adolygiad Digwyddiadau Darlleduamddim Ymgynghoriad PDF (252kb)
- Annex A - EU and UK legislative framework PDF (163kb)
- Annex B - The revised list of events protected under Part IV of the Broadcasting Act 1996 PDF (47kb)
Contact
David Patterson
5th Floor
Department for Culture, Media and Sport
2-4 Cockspur Street
LONDON
SW1Y 5DH
We can also provide documents to meet the specific requirements of people with disabilities. If you need assistance please contact the Review Team as above or by telephone on 020 7211 6200.
This consultation is guided by the Government’s Code of Practice on Consultation.
Respondents are asked to note that all information in responses, including personal information, may be subject to publication or disclosure under the Freedom of Information Act 2000. Confidentiality cannot be guaranteed to any respondents, and will only be possible if considered appropriate under the legislation.
A summary of responses has been published [1 December 2009]
* The Panel extended the deadline to 20th July 2009 to give everyone enough time to make thier views known.
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Background
Under EC law Member States can, if they choose, draw up legislation that allows a Member State to maintain and protect a list of sporting or other events which are considered by that Member State to be of major importance to society and which should be made available on free to air television to as much of the population as possible. Free-to-air means that no payment needs to be made for reception beyond the normal TV licence fee and the cost of receiving equipment, and that the broadcast is capable of reaching at least 95% of the UK population. Only BBC, ITV, Channel 4 and Channel 5 currently have that free audience reach.
It is up to each Member State to decide the terms on which it draws up its list and the criteria it applies in deciding what is of major importance to society.
The legislation and any list drawn up under it should be verified by the Commission. Once this has been done EC law provides that each Member State must ensure that broadcasters operating within its jurisdiction do not undermine another Member State’s list.
The relevant legislation for the UK’s list is set out in ss. 97 to 104 of the Broadcasting Act 1996. This is supplemented by a code drawn up by Ofcom under these provisions. The relevant EC law is contained in Article 3j of the Audio Visual Media Directive. Copies of these sources are at Annex A.
A brief history of listing
The first list was drawn up in 1956 between the BBC and the then Independent Broadcasting Authority. The list was further reviewed in 1984, 1989. 1991 and was last reviewed in 1998.
The 1998 review was the first under the terms of the Broadcasting Act 1996 and a predecessor to the Audio Visual Media Directive and the first to be drawn up on the basis of transparent and published criteria. The current arrangements and the criteria on which they were based are set out in Annex B. Events are categorised either as List A or List B events. List A seeks to protect live coverage, and List B to ensure delay of "highlights" coverage.
The Government intends to give formal statutory recognition to the A and B lists by bringing into force the unenacted parts of sections 299 and 300 of the Communications Act 2003. These sections amend sections 97 and 99 of the Broadcasting Act 1996
So far the UK has only listed sporting events, reflecting its strong sporting heritage. But other, non-sporting, events can be listed too, and some European countries do include such non sporting events in thier lists; for example, the Vienna Opera Ball in Austria, the Queen Elisabeth Music Competition in Belgium and The San Remo Italian Music Festival in Italy.
It is important to note that an event does not have to be of major importance to the whole of the UK to be considered for listing. It is sufficient that it is of major importance to one of the nations and it can be listed on a national basis. This is the reason why the Scottish FA Cup Final is listed in Scotland alone. It is also important to note that listing an event does not of itself guarantee that it will enjoy live or deferred coverage on free-to-air television. An event can be listed, but no-one can be compelled to sell their rights to an event, and a broadcaster equally cannot be compelled to acquire them and/or broadcast an event. Finally, it should be noted that the rights to some events are sold in advance. In those cases any changes to the listing arrangements that might result from this Review could not have immediate effect, but would have to wait until the rights were next negotiated.
The Code of Conduct operated by Ofcom gives practical effect to the UK legislation. In relation to the A list it requires that the rights to broadcast a listed event must be offered for sale on fair and reasonable terms to all broadcasters and cannot be offered on an exclusive basis. If a broadcaster who is not a free-to-air broadcaster does nonetheless acquire exclusive rights, for example because a free-to-air broadcaster did not bid for them, then it must obtain Ofcom’s consent before the event can be shown live. A similar regime applies to the B list which deals with highlights and deferred coverage.
Outside of the statutory protection offered by the listed events arrangements, the Central Council of Physical Recreation (CCPR) has developed a Voluntary Code of Conduct for rights owners in relation to the broadcasting of major events.
The initial Code was published in 1996, but has since been updated in the light of developing technology and terminology. A revised Code was agreed in 2008. Signatories to the code – who include, among others, the Football Association, The FA Premier League, The England and Wales Cricket Board, the All England Lawn Tennis Club and The Lawn Tennis Association – have undertaken to ensure that television broadcasting coverage of all major sporting events under their control are generally available in the UK through free-to-air television broadcasts (in live or recorded form), and that a minimum of 5% of the revenue generated from the sale of broadcasting rights is reinvested for the wider development of their sport. Signatories’ compliance with these principles is scrutinised by the CCPR’s Sports Broadcast Monitoring Committee, which has an independent Chair and is made up of signatory representatives, CCPR and UK Sport representatives and a number of independent members.
More information on the Voluntary Code can be obtained from CCPR.
Consultation questions
The consultation document now seeks views on each of the three issues that the Secretary of State has asked the Advisory Panel to address. These are whether:
- listing should continue;
- the current criteria remain appropriate or are in need of revision; and,
- there should be any changes to the events currently listed. This includes whether the distinction between free live and delayed coverage should continue.
Should listing continue?
There is no obligation to list events. It is a facility under EC law of which Member States can avail themselves. Not all countries choose to list: nine, including the UK, have done so.
Q1. Do you think that the UK should continue to protect certain major events through live or deferred coverage on free to air television? Please give a reason for your response.
The current arrangements only cover sporting events, but the Panel is open to suggestions for the inclusion of other events.
Q2. Do you think that events other than sporting events should be listed? If so, please give your reason. You will have an opportunity to suggest appropriate events at a later stage in this consultation document and do not need to do so now.
Are the current criteria right?
EC legislation is permissive and also affords Member States a large measure of discretion in how they interpret an event of major importance to society.
In 1998 the UK Government consulted on how it should give effect, in a UK cultural context, to the idea of an event of importance to society.
In order to be considered, the event had to pass the essential criterion test, which was:
- The event has a special national resonance, not simply a significance to those who ordinarily follow the sport concerned; it is an event which serves to unite the nation; a shared point on the national calendar.
In a sporting context such an event is likely to fall into one or both of the following categories:
- It is a pre-eminent national or international event in the sport;
- It involves the national team or national representatives in the sport concerned.
Q3. Do you agree that this should remain the essential criterion test? If you do not agree, please explain why and please indicate what you consider should be the essential criterion in a sporting context.
The essential criterion is of course currently expressed solely in terms of sporting events.
Q4. If your answer to Q2 was that non-sporting events should also be considered for listing, what might an essential criterion be?
Having qualified under the essential criterion test, an event was more likely to be listed if it exhibited particular characteristics; such as
- It is likely to command a large television audience;
- It has a history of being broadcast live on free-to-air television.
Q5. Do you consider that these characteristics remain appropriate? If you do not, or consider that additional characteristics should be included, please explain why.
In deciding whether to list an event, the Secretary of State had regard to other factors affecting the likely costs and benefits to the sport concerned, to the broadcasting industry and to viewers, such as:
- Whether it is practical to offer full live coverage on a general channel – extended events such as season-long championships involving many matches will not normally be listed in their entirety;
- The impact of listing in reducing the income or potential income of the sport and consequences of that reduction for its investment in increasing participation and/or improving levels of performance and/or in creating safe facilities.
- The likely impact of listing on the broadcasting market, including future investment in sports broadcasting, the level of competition and the position of public service broadcasters.
- Whether there are arrangements to ensure that access to the event is available to all viewers by means of highlights, delayed coverage and/or radio commentary.
The Secretary of State has regard to these other factors cumulatively. No single factor automatically commands listing as a response or disqualifies an event from consideration.
Q6. Are these the appropriate other factors that the Secretary of State should take into account when considering whether or not to list an event? If not, or you consider that additional factors should be taken into account, please explain why.
It was largely in consideration of these other factors that the Advisory Panel recommended in 1998 that the list should be divided into two; A and B. List B would include events that might be difficult to schedule, but which could be protected but by way of highlights, deferred coverage or live radio commentary. The Secretary of State accepted this recommendation.
Q7. Do you agree that both an A and B list should be maintained? If not, please explain why.
As explained above, the listing arrangements are given practical effect by means of a Code of Conduct operated by Ofcom.
Q8. Are there any issues that you would wish to bring to our attention in regard to the way in which the listing arrangements are given practical effect by Ofcom?
What events should be listed?
Ultimately the decision as to what events are listed, and whether there is one or more lists, is a matter for the Secretary of State, subject to consultation with the broadcasting authorities and affected rights holders. But the Advisory Panel is keen that its own recommendations should be informed by the widest possible views from the public, from the broadcasting and media industries, and from sports bodies and rights holders.
Q9. Do you think that the Secretary of State should:
- leave the current arrangements unchanged;
- move existing events between the A- and B- lists;
- add any entirely new events; or
- remove any events that are currently listed?
Please give reasons for your answers.
As can be seen, the current lists are a mixture of one-off events and of single-sport or multi-disciplinary tournaments that take place over an extended period of time or over a period of days.
Q10. If you have suggested that live coverage of any such tournaments should be listed do you think that:
- the entire tournament should be listed; or
- only selected stages, events or matches involving national teams or representatives.
Please give reasons for your view and, if you favour selected listing, please specify which tournaments and which stages, events or matches.
If your answer to Q2 was that non-sporting events should also be considered for listing
Q11. Please suggest which non-sporting events you would like to see listed and why.
Conclusion
In the light of the Panel’s recommendations, which will be informed by the outcome of this consultation process, the Secretary of State will reach conclusions and will then consult the broadcasting authorities and any affected rights holders on how he intends to proceed in line with the requirements of the 1996 Broadcasting Act.
Q12. Do you have any other issues that you would like the Panel to take into account in considering what its recommendations should be?
DCMS
08 April 2009
