Digital Broadcasting: The Government's Proposals — The Doubtful Revolution

DOIhttp://doi.org/10.1111/j.1468-2230.1996.tb02089.x
Date01 May 1996
Published date01 May 1996
REPORTS
Digital Broadcasting: The Government’s Proposals
-
The
Doubtful Revolution
LP.
Hitchens”
In August
1995
the Government published a policy paper’ on its proposals to
introduce digital technology to terrestrial broadcasting.* Introducing the Policy
Paper, the Secretary of State for National Heritage, Virginia Bottomley, announced
that with the introduction of digital broadcasting: ‘[wle stand on the verge of a
revolution. Digital broadcasting could transform the viewing and listening habits
of the nati~n.’~ In general terms, digital technology can be described as a
transmission system which enables more radio and television services to
be
broadcast in the space occupied by the current analogue system of transmi~sion.~
In
other words, whereas under the present technology, one frequency channel is
needed for each television channel, with digital a single frequency channel could
provide a number of television channels
or
radio stations. As well as
an
increased
number of services, picture and sound quality could also
be
improved. A further
capability of digital broadcasting is the ability to split the available capacity for a
period of time
so
that two
or
more programmes could
be
broadcast
contemporaneously by the same programme provider. This might occur where
the particular programmes did not require high picture quality. Thus a discussion
programme might be carried on a split capacity, whilst a sporting event would
require more
or
all of the available capacity to ensure appropriate picture quality.5
Although the Policy Paper covers only terrestrial broadcasting, digital
technology can also be applied to satellite and cable transmission. It is likely
that satellite digital broadcasting (and possibly cable) will come into operation
about a year before digital terrestrial broadcasting (expected in late
1997)
commences. Digital satellite television will be able to carry some 200 channels,
considerably more than the terrestrial system will offer.6 That the Policy Paper
*School of Law, University of Warwick.
1
Media coverage referred to the document
as
either
a
White Paper
or
a
Green Paper; however, the
Government seems to prefer the term ‘Policy Paper.’ This appears to indicate
a
paper which combines
the elements of both
a
Green Paper and
a
White Paper. When the Government published
its
proposals
fcr changed regulation of media ownershiD and control
in
May 1995, it referred to this document
also
as
a
policy paper.
It
too contained both White and Green Paper elements.
2 Department of National Heritage,
Digirul Terrestrial Broadcasting
Cm 2946 (1995). referred to
in
this
note
as
‘the Policy Paper.’
3 Press Release, DNH 127/95, 10August 1995, pl.
4 Both radio and television digital broadcasting
will
also
be able to provide additional services such
as
teletext and possibly other interactive services such
as
‘home-shopping’: Policy Paper, paras 2.47-
2.52 and 3.23-3.24. Additional services will be limited to
10
per cent of the capacity available on
a
multiplex.
5
Policy Paper, para 2.33.
6
The Guardian
14August 1995, pp 16-17. The Government did not consider
it
necessary to make any
new regulatory arrangements for cable and satellite digital broadcasting. After publication of the
Policy Paper, however, it was reported that the Government had ‘signalled
a
U-turn,’ and intended to
license cable and satellite digital services through the Office of Telecommunications
(OFEL):
The
Guardian,
8September 1995, p8. It
is
not quite clear just what is intended to be licensed here.
427
0
The
Modern Law Review Limited
1996
(MLR 59:3, May). Published by Blackwell Publishers,
108 Cowley
Road,
Oxford
OX4
IJF
and 238 Main
Street,
Cambridge, MA
02142.
USA.
The
Modern
Law Review [Vol.
59
covers only terrestrial broadcasting can be explained by the fact that the
Broadcasting Act
1990
contains no provision for licensing new terrestrial services,
but
does enable the licensing of further cable and satellite services. This
explanation is not, however, entirely satisfactory because the Policy Paper’s
proposals have the potential to affect significantly the whole of the broadcasting
environment whatever the means of delivery. The failure to consider coherently all
aspects of digital services is likely to result
in
the exacerbation of already existing
pressures on a broadcasting regulatory environment intended to secure a diversity
of voices and programming.
Mrs
Bottomley described the regulatory proposals contained in the Policy Paper
in
the following terms:
The Government’s proposals provide broadcasters with the commercial and regulatory
freedom to provide
a
range
of
new channels to meet the demands
of
the British public
. . .
The Government has proposed a flexible framework which balances regulation and
commercial freedom.7
When one examines the proposals
in
more detail, the imminent revolution looks a
little less apparent. On the one hand, the proposals are likely to produce a
cumbersome and complex regulatory scheme which may act
as
a disincentive to
broadcasters to commit themselves to the very considerable investment
expenditure required to begin digital services. The Independent Television
Commission (ITC) has questioned whether the Government’s proposed structure
for the licensing of services is the best way to proceed.s On the other hand, the
proposals also raise more serious issues than just their lack of regulatory elegance.
In devising the regulatory scheme, the Government has paid little attention to what
constitutes ‘broadcasting’
for
the purpose of broadcasting-specific regulation, such
as
ownership and control provisions. It has continued a practice
of
designating the
activities
of
programme providers
as
‘broadcasting matters,’ whilst treating the
activities
of
the other elements of the digital process
as
‘telecommunications
matters.’ This has implications for the future control
of
broadcasting because it has
the potential for allowing controllers of broadcasting
or
broadcasting-related
services to be able to exert influence over broadcasting whilst remaining outside
broadcasting-specific controls. The area which causes particular concern here is
the control
of
access systems. With the convergence of technology and the
introduction of digital television, the role of gatekeepers becomes increasingly
important. Without comprehensive structural regulation these gatekeepers may
be
able to exercise significant control over who is able to broadcast and what is
broadcast. These are issues which will be discussed further in this note.
A
more immediate concern for the Government’s proposals is the viability of
digital terrestrial television
(DTI‘).
Whilst
DlT
will
be
heavily regulated, satellite
and cable digital television will be able to commence with few regulatory burdens
and
be
able to offer more services. The BBC has suggested that there is no
guarantee that
DlT
will
be
able to establish itself as economically viable against
these other delivery systems.9 Aside from the question of whether there
is
really
Attempts
to
seek elaboration from the Department of Trade and Industry,
OFTEL
and the Department
of National Heritage were unsuccessful.
ITC,
Digital Terrestrial Broadcasting: ITC Response
to
the
Government’s
Proposals
(October
1995)
para 13.
BBC,
Britain’s Digital Opportunity
(October
1995)
para
4.4.
Similar doubts about the success of DTT
have
also
been expressed by the Independent Television Association (the ITV):
The
ITV
Response to
the
Government’s
Proposals
for
the Introduction
of
Digital Terrestrial Television
(October
1995)
p 3.
0
The
Modem
Law Review
Limited
1996
I
op
cit
n3, pp2-3.
8
9
428

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