Broadcast and on Demand Bulletin Issue Number
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Ofcom Broadcast and On Demand Bulletin Issue number 298 8 February 2016 1 Ofcom Broadcast and On Demand Bulletin, Issue 298 8 February 2016 Contents Introduction 4 Notice of Sanction Leith Community Mediaworks Limited 6 Broadcast Standards cases In Breach/ Not in Breach Steve Allen LBC 97.3 FM, 28 August 2015, 04:15 8 Steve Allen LBC 97.3 FM, 31 August 2015, 04:00 to 06:30 13 In Breach Breakfast Show Koast Radio, 14 December 2015, 08:40 DJ John in the Mix Koast Radio, 14 December 2015, 18:25 19 Broadcast Licence Conditions cases In Breach Licence Condition 17(2) – compliance procedures and arrangements Middlesex Broadcasting Corporation Limited regarding its service MATV (TLCS-384) 21 Providing a service in accordance with ‘Key Commitments’ TCR FM (Tamworth), 2 to 4 November 2015 25 Broadcasting licensees’ non-payment of licence fees Various licensees 28 Broadcast Fairness and Privacy cases Upheld Complaint made by Mr Mahender Singh Rathour on behalf of the management committee of the Gurdwara Miri Piri Sahib Gurdwara Miri Piri Sahib Kar Sewa Live, MATV, 11 May 2015 29 Not Upheld Complaint by the Steadfast Trust Exposure: Charities Behaving Badly, ITV, 18 February 2015 36 2 Ofcom Broadcast and On Demand Bulletin, Issue 298 8 February 2016 Complaint by Miss Julia Liddle on her own behalf and on behalf of Dorset Dog Rescue Inside Out South, BBC 1 South, 12 January 2015 58 Complaint by Miss Julia Liddle and Dorset Dog Rescue The Steve Allen Breakfast Show, LBC 97.3FM, 13 January 2015 113 Complaint by Ms Rajinder Sehmar made on behalf of Mr Bhajna Ram Shri Guru Ravidass Ji Live, Venus TV, 15 March 2015 123 Tables of cases Investigations Not in Breach 135 Complaints assessed, not investigated 136 Complaints outside of remit 145 Investigations List 147 3 Ofcom Broadcast and On Demand Bulletin, Issue 298 8 February 2016 Introduction Under the Communications Act 2003 (“the Act”), Ofcom has a duty to set standards for broadcast content as appear to it best calculated to secure the standards objectives1. Ofcom also has a duty to secure that every provider of a notifiable On Demand Programme Services (“ODPS”) complies with certain standards requirements as set out in the Act2. Ofcom must include these standards in a code, codes or rules. These are listed below. The Broadcast and On Demand Bulletin reports on the outcome of investigations into alleged breaches of those Ofcom codes and rules below, as well as licence conditions with which broadcasters regulated by Ofcom are required to comply. We also report on the outcome of ODPS sanctions referrals made by the ASA on the basis of their rules and guidance for advertising content on ODPS. These Codes, rules and guidance documents include: a) Ofcom’s Broadcasting Code (“the Code”) for content broadcast on television and radio services. b) the Code on the Scheduling of Television Advertising (“COSTA”) which contains rules on how much advertising and teleshopping may be scheduled in television programmes, how many breaks are allowed and when they may be taken. c) certain sections of the BCAP Code: the UK Code of Broadcast Advertising, which relate to those areas of the BCAP Code for which Ofcom retains regulatory responsibility for on television and radio services. These include: the prohibition on ‘political’ advertising; sponsorship and product placement on television (see Rules 9.13, 9.16 and 9.17 of the Code) and all commercial communications in radio programming (see Rules 10.6 to 10.8 of the Code); ‘participation TV’ advertising. This includes long-form advertising predicated on premium rate telephone services – most notably chat (including ‘adult’ chat), ‘psychic’ readings and dedicated quiz TV (Call TV quiz services). Ofcom is also responsible for regulating gambling, dating and ‘message board’ material where these are broadcast as advertising3. d) other licence conditions which broadcasters must comply with, such as requirements to pay fees and submit information which enables Ofcom to carry out its statutory duties. Further information can be found on Ofcom’s website for television and radio licences. e) Ofcom’s Statutory Rules and Non-Binding Guidance for Providers of On- Demand Programme Services for editorial content on ODPS. Ofcom considers sanctions in relation to advertising content on ODPS on referral by the Advertising Standards Authority (“ASA”), the co-regulator of ODPS for advertising or may do so as a concurrent regulator. Other codes and requirements may also apply to broadcasters, depending on their circumstances. These include the Code on Television Access Services (which sets out how much subtitling, signing and audio description relevant licensees must 1 The relevant legislation is set out in detail in Annex 1 of the Code. 2 The relevant legislation can be found at Part 4A of the Act. 3 BCAP and ASA continue to regulate conventional teleshopping content and spot advertising for these types of services where it is permitted. Ofcom remains responsible for statutory sanctions in all advertising cases. 4 Ofcom Broadcast and On Demand Bulletin, Issue 298 8 February 2016 provide), the Code on Electronic Programme Guides, the Code on Listed Events, and the Cross Promotion Code. It is Ofcom’s policy to describe fully the content in television, radio and on demand content. Some of the language and descriptions used in Ofcom’s Broadcast and On Demand Bulletin may therefore cause offence. 5 Ofcom Broadcast and On Demand Bulletin, Issue 298 8 February 2016 Notice of Sanction Leith Community Mediaworks Ltd For a failure to comply with community radio Licence Conditions 8(2)(a) and (b) Introduction Castle FM is a community radio service for the residents of Leith, Edinburgh, which is provided by Leith Community Mediaworks Ltd (LCMWL) (or “the Licensee”) under a licence granted by Ofcom under Part 3 of the Broadcasting Act 1990 (the “1990 Act”). The service is licensed to broadcast on 98.8 MHz on the FM band. Summary of Decision In a Finding published on 1 September 2015 in issue 286 of the Broadcast Bulletin1, Ofcom found that LCMWL had breached Licence Conditions 8(2)(a) and (b) of its licence which require licensees to adopt procedures to ensure they are able to retain recordings and produce them to Ofcom upon request. In Ofcom’s view, the breaches were particularly serious. In particular, the conditions in question are of fundamental importance to Ofcom’s ability to assess compliance with licence conditions on broadcast content including, as in this case, compliance with Key Commitments intended to ensure that the community benefit for which the service is licensed is in fact being delivered. Such content-related conditions also include those designed to ensure audiences are adequately protected from harm and offence, and from unfair treatment and unwarranted infringements of privacy. Failure to retain and produce recordings risks seriously undermining Ofcom’s ability to secure compliance with such conditions in line with its duties. Ofcom also concluded that the breaches in question were repeated. The most recent breaches were the third set of breaches in relation to failure to retain and produce recordings, following earlier findings dated 19 May 2014 and 28 July 2014 (the former covering two separate such failures). The Licensee made oral representations to Ofcom regarding the appropriateness of imposing a financial penalty and potential nature and level of such penalty. It expressed regret to the extent it had fallen short of expected standards, stating that staff members are aware of the requirement to keep recordings. It explained changes it said have been put in place since the most recent breach Finding. In particular, it said it had made improvements to the physical security of recording equipment, introduced a back-up recorder, and made software changes such that broadcasting cannot take place without recording equipment being activated. After considering all of the evidence and representations made to it, the Sanctions Panel decided that the serious and repeated nature of these breaches of Licence Conditions 8(2)(a) and (b) meant that a financial penalty should be imposed. The Panel considered the level of the fine to be imposed, in accordance with Ofcom’s Penalty Guidelines. In reaching its decision on this penalty, Ofcom took into account all the matters referred to above. In particular, the penalty reflected limitations in the Licensee’s 1 http://stakeholders.ofcom.org.uk/binaries/enforcement/broadcast- bulletins/obb286/Issue_286.pdf 6 Ofcom Broadcast and On Demand Bulletin, Issue 298 8 February 2016 ability to pay and factors including its assurances that it has put into place, since 1 September 2015, improvements in its recording systems. However, it also reflected the serious and repeated nature of the breaches and the importance of providing an incentive for compliance with what are important licence conditions. Further, the penalty reflected that the Licensee had failed to make sufficient improvements following earlier breach decisions, and may have made cost savings by not having implemented an adequate recording system earlier. In accordance with Ofcom’s Penalty Guidelines, Ofcom decided it was appropriate and proportionate to impose a financial penalty of £850 on Leith Community Mediaworks Limited in respect of the Licence Condition 8(2)(a) and (b) breach (payable to HM Paymaster General). In addition, Ofcom informed the Licensee it plans to carry out further monitoring with a view to verifying that corrective action has been taken to address the earlier breaches in relation both to retention and provision of recordings, and Key Commitments compliance. The outcome of this monitoring would be a factor in determining whether or not to grant a licence extension if an application was made (noting that the current licence is due to expire on 23 March 2017 meaning the latest date for a renewal application to be submitted is on 23 September 2016).