The regulators

The regulators

How would Ireland’s broadcasters react to being watched over by an Ofcom-style body?.


The UK is not the only country grappling with the issue of media regulation.

While Parliament spent the past three years debating the nature and extent of powers that should be available to super-regulator Ofcom, Ireland’s legislators were also busy rewriting the rules that govern its TV scene.

The result has been two distinct approaches to content regulation, convergence and the thorny issue of how to control public broadcasters without seeming to interfere with their independence.

For the Irish, the first big change came when the Independent Radio and Television Commission (IRTC) was replaced by the Broadcasting Commission of Ireland (BCI) in September 2001.

BCI chief executive Michael O’Keeffe, who has been in the regulation game since the IRTC was formed in 1988, says the 2001 Act which created the new body gave it enhanced powers in two key areas. “Prior to the change, the IRTC’s primary responsibility was licensing and monitoring broadcast services. But the new Act charged the BCI with developing codes and rules on programming and advertising to cover all broadcasters – including public broadcaster RTE,” he says.

At the same time, the new Act also gave the BCI responsibility for the licensing of new TV services on digital, cable, MMD and satellite systems.

In particular, it was envisaged that the BCI would manage the roll-out of digital terrestrial television – in much the same way that one of Ofcom’s predecessors the Independent Televison Commission did in the UK.

Of the two areas, the BCI’s activities in devising codes has been more high-profile.

“The first year was about managing the transition,” says O'Keeffe, “but after that we worked on two key areas – advertising to children and access issues such as subtitles for the deaf and hard of hearing.”

The question of subtitles is still a thorny one – since Irish broadcasters are not keen to foot the cost of compliance. But even more controversial is the tough line the BCI has taken on advertising to children. “Diet emerged as a very strong issue in our consultation process. So, from late 2004 or early 2005, we plan to restrict the use of endorsements in the marketing of foods.”

In essence, the new rules will prevent broadcasters from using endorsement ads (eg Lineker and Walkers) during periods of the schedule aimed at kids.

In addition, any show outside kids’ blocks which has an audience made up 51% or more by children will also be covered. So if a million people tuned into a teatime show on Saturday and 501,000 were children, Pepsi would have to find an alternative to Beckham in tights.

In the UK, the government washed its hands of this issue by opting for a self-regulatory approach. But O’Keeffe says this wouldn’t work in Ireland.

“If anything, there’s a lobby which would like us to be tougher on companies which market to children.”

That said, the BCI faces a tricky situation with Sky, MTV, Nickelodeon, Channel 4 and UTV beaming signals in from the UK. Because they are not regulated by the BCI, they can run endorsement ads with impunity – with the result that money may shift out of TV3 and RTE into British broadcasters. O’Keeffe is aware of the problem: “53% of kids viewing here goes to UK channels. I hope to talk to Ofcom to see if there might be a cross-border solution.”

Whether that will do any good is unclear.

The Irish Government has already asked the EU Commission for permission to regulate television advertising and programmes viewed in Ireland regardless of where the providers are based. However, that plan was quickly rebuffed on the grounds it would drive a coach and horses through the EU’s Television Without Frontiers directive.

With a staff of just 30, the BCI is not able to move too quickly in terms of its new codification role. But after the current codes, O’Keeffe plans to draw up a code on taste and decency and a general advertising code which will incorporate the current work on kids. Again, he’s aware of the potential for problems: “Because of the UK channels, anything we suggest that is more onerous than the UK’s regime will be subject to scrutiny.”

While codes have taken up the BCI’s time, DTT has turned out to be a non-event. “Our role was to award licences to services once the government had given the go-ahead for two multiplexes. That hasn’t happened, but Sky and cable have both continued to grow their digital subscriber base.” So the question now is whether Irish DTT can ever get off the ground in the face of such competition. Precedents in both the UK and Spain suggest it would be a tough call.

While DTT may be dead in the water, the BCI has been busy with radio – a medium with a strong track record in Ireland. Echoing the Radio Authority’s activities in the UK during the 1990s, the BCI went through an extensive programme of relicensing existing stations.

Not surprising then that O’Keeffe has been in an ongoing dialogue with Tony Stoller – who ran the stand-alone RA until it folded into Ofcom.

Like the RA, the BCI issues new licences – encountering the same kind of flak when it greenlit a series of new stations in the competitive Dublin market. The winners of those licences (awarded between 1999 and 2001) include Spin, Country and Newstalk – which all currently attract two to three per cent share of adult listening in the capital. It’s too early to tell if these will develop the critical mass to be sustainable businesses. But, as in the UK, the BCI does not require cast-iron assurances of commercial viability.

Outside Dublin, the main development has been the decision to grant a regional licence to Beat in Southeast Ireland. As yet, O’Keeffe says that no decision has been made on how many more regional licences will become available: “Ireland could probably sustain around six or seven regional licences – with Galway and Limerick obvious candidates because of the size of their populations.”

With radio under control, O’Keeffe says the BCI is also keen to advertise new TV licences, though he admits he has “no idea what level of interest there will be. The key difference is that listenership to UK radio stations is five per cent, while viewership to UK networks is around 50%. That will clearly play a part in whether people apply”.

Networks which have been licensed so far include Setanta – and O’Keeffe says the door is open (in theory) to applications for “an Irish MTV for example. Or any network committed to growing Irish content”. All new networks would be licensed with a view to playing out on PayTV platforms since there is no prospect of another free to air network. But whether there is any viable niche left is uncertain.

In its current guise, the BCI is like a cross between the ITC and RA which existed in the UK prior to the launch of Ofcom. As in the UK’s pre-Ofcom era, this ITC/RA equivalent doesn’t handle complaints – though it does provide support services to a Broadcasting Complaints Commission.

The major difference between the BCI and the ITC/RA is that its new codes apply to public broadcaster RTE – whereas the UK media regulators never had any control over the BBC. The reason for this is that RTE TV and radio are funded by ad revenue. While the pubcaster has its own version of the BBC Board of Governors (called the RTE Authority), the fact that it operates in the commercial airtime market means it needs to be subject to the same basic rules.

That said, there are very advanced plans for the BCI to take over the entire regulatory function currently managed by the RTE Authority.

O’Keeffe says: “This debate came up when the BCI was being created in the late 1990s. But it was felt at the time it was a step too far. Now the debate has moved on and the government plans to replace the BCI in the next year with the Broadcasting Authority of Ireland (BAI) – a body which will assume RTE regulation.”

O’Keeffe and his chairman Conor Maguire are both very firmly in favour of splitting RTE’s regulatory and editorial functions. But RTE has some reservations. Chief among these is that the IRTC and BCI have historically been perceived as champions of the independent sector – a position which some RTE insiders believe would create a cultural conflict with its role as unified regulator.

Maguire’s response is that: “RTE doesn’t have anything to fear from us – and we have no agenda in relation to public sector broadcasting.

We are no longer just involved with promoting the independent sector, we've drawn back from that.”

While RTE may resist the change, O’Keeffe (and more importantly the Irish Government) are adamant that the new regime will come into place. The result will be a single content regulator responsible for the entire Irish TV and radio sector.

This is different from the UK where Ofcom has not yet got its hands on the BBC’s regulatory function. Even more important, Ofcom is a converged telecoms/content regulator while there are no active plans to mesh the BAI into a single super-regulator with Ireland’s telecoms body Comreg.

“It’s possible that the convergence debate will come after the BAI launches,” says O’Keeffe.

“But I don’t think it is healthy for the content sector to be a small unit within a much larger converged regulator.”

While the BCI is not under immediate threat of being gobbled up by Comreg, it will probably do some empire-building of its own.

Firstly, it is likely to absorb the BCC’s complaints function (as happened in the UK).

Then, it will likely assume responsibility for RTE’s Irish cultural channel TnaG (Telifis na Gaeilge). Under the 2001 Act, TnaG was supposed to get its own broadcasting authority – but that never happened. So the transition should be easy.

Perhaps one of the strangest elements of the BCI’s role from a UK perspective is the fact that it has its own project financing budget.

Under the Broadcasting and Funding Act of 2003, the BCI was granted control of five per cent of Ireland’s Licence Fee – which in current terms is worth around €8m. The purpose of the fund is to allow the BCI to back publicminded TV and radio projects separately from RTE.

Specifically it is looking at programmes dealing with Irish culture, heritage and experience and programmes to improve adult literacy.

It will be overseen by Mary Ellen Greene – who previously worked with the Arts Council in developing funding programmes for arts organisations.

O’Keeffe says such a situation is not unprecedented – since a similar regime exists in New Zealand. “There was a suggestion that this should be managed by a different body – but our view is that it allows us to be involved in a proactive way with shaping Ireland’s media industry.”