Annexes: Holding the BBC to Account for Delivering for Audiences
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Holding the BBC to account for delivering for audiences Annexes Statement: Publication Date: 13 October 2017 Contents Annex A1. Ofcom’s role in regulating the BBC 1 A2. Our approach to setting the Licence 9 A3. Key consultation themes 20 A4. The Licence: setting the high-level objectives and regulatory conditions 41 A5. Performance measurement framework 65 A6. Impact assessment and equality impact assessment 75 A7. BBC operating licence 80 A8. Operating Framework: Procedures and considerations for setting and amending the operating licence 120 A9. Operating Framework: Procedures and considerations for setting and amending the performance measures 124 Holding the BBC to account for delivering for audiences A1. Ofcom’s role in regulating the BBC The new BBC Charter and Agreement A1.1 On 15 December 2016, the Government published the new BBC Charter and Agreement setting out the how the BBC will be governed and regulated over the next 11 years.1 The Charter sets a refreshed mission and public purposes for the BBC, with a new focus on distinctiveness. The new Charter also makes major changes to the oversight of the BBC: it establishes a new BBC Board to run the BBC in place of the BBC Trust, and moves responsibility for regulating the BBC to an independent, external regulator, Ofcom. A1.2 Under the Charter and Agreement, the BBC Board must run the BBC – setting the BBC’s strategic direction and budgets, and overseeing the BBC’s overall editorial and creative approach, including oversight of commissioning and scheduling decisions. Ofcom’s role is to provide robust, fair and independent regulation in three areas: content standards, the BBC’s impact on fair and effective competition, and the BBC’s performance in delivering its mission and public purposes. Ofcom took on its new responsibilities on 3 April 2017. In regulating the BBC, we need to have regard to our general duties under the Communications Act 2003 (the “Act”) and to the specific requirements of the Charter and Agreement. Ofcom’s role and duties A1.3 Under the Charter and Agreement, we are required to publish an Operating Framework containing the provisions we consider appropriate to secure the effective regulation of the BBC. The Operating Framework is a series of documents that cover the full range of our new regulatory duties in the three areas of content standards, competition and performance. A1.4 In the area of performance, the BBC Board must lead the BBC to fulfil the Charter’s aims. Ofcom is charged with holding the BBC to account for its performance across its range of services, and the Charter gives us a range of responsibilities and powers to do this. Specifically: 1 ‘The Royal Charter for the continuance of the British Broadcasting Corporation’ (the “Charter”), available at: https://www.gov.uk/government/publications/bbc-charter-and-framework-agreement; ‘The Agreement between the Secretary of State for Culture, Media and Sport, and the BBC’ (the “Agreement”), available at: https://www.gov.uk/government/publications/bbc-charter-and-frameworkagreement. 1 Holding the BBC to account for delivering for audiences a) we must set an operating licence (“Licence”) for the BBC, containing enforceable regulatory conditions on the BBC’s UK Public Services.2 The Charter requires us to put in place the regulatory conditions we consider appropriate to ensure the BBC fulfils its mission and promotes the public purposes; to secure the provision of distinctive output and services; and to ensure that audiences in England, Scotland, Wales and Northern Ireland are well served. It also gives Ofcom the ability to place sanctions on the BBC including, for the first time, possible fines if it fails to meet the regulatory conditions we have set; b) we have powers to set the performance measures we consider appropriate to assess the performance of the BBC’s UK public services, independent of the BBC’s own performance measures, to assess the BBC’s delivery of its mission and public purposes;3 c) we have powers to conduct reviews of aspects of the BBC’s performance at any time where we think it is appropriate,4 and a requirement that we conduct at least two detailed reviews of the BBC’s performance during the Charter period. A1.5 We are required to report annually on the BBC’s performance against the measures we have set, and on the BBC’s compliance with the regulatory conditions in the Licence. A1.6 This Statement sets out how we will fulfil our duties and hold the BBC to account for delivery. In it we are publishing final versions of the following: a) the first Licence5, which contains the enforceable regulatory conditions that we are setting; b) Ofcom’s performance measurement framework for the BBC based around core performance measures; and c) the parts of the Operating Framework setting out the process we will follow when setting and amending the Licence and the performance measures. A1.7 In setting the Licence and performance measures, as well as being bound by the requirements of the Charter and Agreement we are also bound by our general duties in section 3 of the Act.6 That means that we must carry out our functions in a way which will further the interests of citizens in relation to communications matters, and of consumers, where appropriate by promoting competition. A1.8 In performing our duties, we must have regard to the principles under which regulatory activities should be proportionate, consistent and targeted only at cases in which action is 2 Article 46(3) of the Charter provides that the scope of Ofcom’s Licence, and the regulatory conditions contained within it, is the UK public services. 3 Section 198 of the Act, Charter, article 44 and article 46. 4 Ofcom must, where appropriate, carry out and publish additional reviews addressing any specific issue of concern identified by Ofcom relating to the activities of the BBC that are subject to regulation by Ofcom under the Charter and Agreement (Charter, article 51(3)). 5 Alongside the Licence, we have also published separate documents which set out in one place the regulatory conditions that apply for audiences in each nation. 6 Charter, article 45(1). 2 Holding the BBC to account for delivering for audiences needed. The Act also requires us to have regard, as appropriate, to certain other principles we consider relevant. We consider the following principles in the Act to be relevant to this Statement: a) the desirability of promoting the fulfilment of the purposes of public service television broadcasting in the UK; b) the needs of persons with disabilities, of the elderly and of those on low incomes; c) the opinions of consumers in relevant markets and of members of the public generally; and d) the different interests of persons in the different parts of the UK, of the different ethnic communities within the UK and of persons living in rural and in urban areas.7 A1.9 Under the Charter, we must also have regard in carrying out our functions (if we consider it relevant in the circumstances) to: the object of the BBC to fulfil its mission and promote the public purposes; the desirability of protecting fair and effective competition in the UK; and the requirement for the BBC to comply with its duties under the Charter, including its general duties set out in articles 9 to 18 of the Charter.8 The BBC’s mission and public purposes are delivered for UK audiences through its UK public services A1.10 The BBC’s mission is set out in the Charter. It is to act in the public interest, serving all audiences through the provision of impartial, high-quality and distinctive output and services which inform, educate and entertain.9 A1.11 The BBC’s public purposes are: a) to provide impartial news and information to help people understand and engage with the world around them; b) to support learning for people of all ages; c) to show the most creative, highest quality and distinctive output and services; d) to reflect, represent and serve the diverse communities of all of the UK’s nations and regions and, in doing so, support the creative economy across the UK; and e) to reflect the United Kingdom, its culture and its values to the world.10 A1.12 The BBC delivers its mission and public purposes to audiences across the UK through the UK public services. A list of its current UK public services is set out in Schedule 1 to the 7 Section 3(4) of the Act. 8 Charter, article 45(2). Article 20(8) of the Charter provides that where it appears to the BBC Board that their obligations under the Charter, Agreement and operating framework conflict with any request or decision made by Ofcom (who must take into account their obligation under article 45(2)(c)), the BBC Board must nevertheless comply with Ofcom’s request or decision. 9 Charter, article 5. 10 Charter, article 6. 3 Holding the BBC to account for delivering for audiences Agreement and consist of the BBC’s portfolio of television, radio and online services aimed primarily at people in the UK.11 The BBC must maintain and publish this list, setting out the name of the service, the type of service and a brief description of what it provides. For example, the Agreement describes BBC One as “a mixed-genre channel, with versions for Scotland, Wales and Northern Ireland and variations for English regions and the Channel Islands, providing a very broad range of programmes to a mainstream audience”. Each of the BBC’s UK public services must fulfil the mission and promote one or more of the public purposes.