References: 862270; 862975
Jerin John Information Rights Adviser Information.requests@ofcom.org.uk
16 March 2020
Freedom of Information: Right to know request
Thank you for your requests for information in relation to our award process for broadcast radio stations and the fit and proper test for News UK.
We received these requests on 16 and 18 February and have considered them under the Freedom of Information Act 2000 (“the Act”).
Your request
You asked for the following:
• I wish you to provide me with all relevant information regarding the advertising of the spectrum and also the criteria for award and process and evidence adduced by which Times Newspapers are to be or are enabled to launch the radio Station for which they are being reported to be so far advanced that they are almost hiring staff.
How have competition issues been assessed, stakeholders consulted etc?
• There is a question as to whether the owners of News UK are fit and proper persons to hold a broadcasting licence.
Bearing in mind Ofcom’s past rulings in relation to Murdoch owned enterprises, what steps have been taken to determine that they are now fit and proper to hold a licence and comply with the broadcasting codes etc.
Our response
In response to the first bullet point, we believe you are referring to the proposed new service called Times Radio, the forthcoming launch of which has recently been reported by News UK and The Times Newspapers.
We are statutorily prohibited by section 393 of the Communications Act 2003 from disclosing information we have obtained in the carrying out of our functions that relates to a particular business, unless an exemption applies.
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Consequently, we cannot say whether or not we have received a broadcast licence application from a particular business. We recognise that you did not expressly ask this, but your questions presuppose that we have received such an application.
We can therefore neither confirm nor deny whether we hold information from News UK and the Times Newspapers as such information is exempt from disclosure under section 44 of the Act. This exemption provides that information is to be withheld if its disclosure is prohibited under another enactment - in this case, section 393 of the Communications Act 2003.
However, we believe we can provide general information which will go some way towards answering your explicit questions in any event.
We note that the reports suggest that the service is to be provided on Digital Audio Broadcasting (“DAB”).
A service of that nature would require a digital sound programme (“DSP”) licence, and we would also need to consider a request from the provider of the radio multiplex service(s) on which the service was to be carried to include it in its line-up of programme services. There is guidance and information about DSP licences for applicants, and how we consider requests to vary radio multiplex licences, on our website.
It follows from the above that we would not need to advertise any spectrum. Instead, it would be for the provider of a proposed service to acquire access to capacity on whichever radio multiplex service(s) it wished to be carried. We note that Ofcom has no discretion about whether or not to grant a variation request from the provider of a radio multiplex service if any one of the statutory criteria are met. If consultation were appropriate as a means of gathering evidence to determine whether or not any of the statutory criteria were met, we would do so. If it were clear that we were statutorily required to grant a requested variation, we would not.
In response to the second bullet point, we have a duty under the Broadcasting Act 1990 and the Broadcasting Act 1996 to be satisfied before granting a broadcast licence that the person to whom it is granted is fit and proper to hold a broadcast licence. In judging whether someone is fit and proper to hold a broadcast licence, the central consideration is whether they can be expected to be a responsible broadcaster.
We look at broadcasting compliance – serious, repeated or ongoing breaches of standards and/or licence conditions may suggest a lack of fitness and properness. We may also look at non- broadcasting related content where we consider it relevant to the likely future conduct of the broadcast licensee and/or to public confidence in the broadcasting regime as a whole.
As well as taking into account the broadcaster’s own conduct, we can also consider the behaviour of people who exercise material influence or control over the broadcaster. The extent to which we do so will depend on their level of influence and on the circumstances such as the seriousness of the conduct.
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I hope this information is helpful. If you have any further queries, then please send them to [email protected] quoting the reference number above in any future communications.
Yours sincerely,
Jerin John
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If you are unhappy with the response or level of service you have received in relation to your request from Ofcom, you may ask for an internal review. If you ask us for an internal review of our decision, it will be treated as a formal complaint and will be subject to an independent review within Ofcom. We will acknowledge the complaint and inform you of the date by which you might expect to be told the outcome. The following outcomes are possible: • the original decision is upheld; or • the original decision is reversed or modified.
Timing If you wish to exercise your right to an internal review you should contact us within two months of the date of this letter. There is no statutory deadline for undertaking internal reviews and it will depend upon the complexity of the case. However, we aim to conclude all such reviews within 20 working days, and up to 40 working days in exceptional cases. We will keep you informed of the progress of any such review. If you wish to request an internal review, you should contact:
Corporation Secretary Ofcom Riverside House 2a Southwark Bridge Road London SE1 9HA
If you are not content with the outcome of the internal review, you have the right to apply directly to the Information Commissioner for a decision. The Information Commissioner can be contacted at:
Information Commissioner’s Office Wycliffe House Water Lane Wilmslow Cheshire SK9 5AF
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