The King on the Application of Radiocentre Ltd v Office of Communications
| Jurisdiction | England & Wales |
| Judge | Mr Justice Julian Knowles |
| Judgment Date | 10 August 2023 |
| Neutral Citation | [2023] EWHC 1977 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4651/2020 |
and
[2023] EWHC 1977 (Admin)
Mr Justice Julian Knowles
Case No: CO/4651/2020
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Timothy Otty KC, Emma Dixon and Isabel Buchanan (instructed by Mishcon de Reya) for the Claimant
Tristan Jones and Hollie Higgins (instructed by the Office of Communications) for the Defendant
Monica Carss-Frisk KC and Natasha Simonsen (instructed by the BBC) for the Interested Party
Hearing dates: 15–16 November 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 10 Augusty 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
“Radio, what's new ? Radio, someone still loves you”
Queen, ‘Radio Ga Ga’, 1984
Introduction
The BBC recently celebrated its centenary. Over the years its output has broadened to encompass services which Lord Reith could never have imagined.
This case concerns Radio 1 Dance (R1D), a BBC offering devoted to dance music. It is only available online via the BBC Sounds app(lication) and associated BBC Sounds website. It is not broadcast via DAB, FM, LW, AM, or anywhere else on the electromagnetic radio spectrum. The BBC launched it in October 2020. It had been planned for some time, but the COVID pandemic delayed its launch.
The Defendant's Skeleton Argument describes R1D as follows (at [1]):
“R1D was intended by the BBC to bring together its dance music content, which would otherwise be spread across various mainstream BBC radio stations and other BBC offerings (such as podcasts or music mixes). Accordingly, anything played on R1D is either a repeat, a ‘simulcast’ (meaning that it is broadcast simultaneously on R1D and elsewhere), or content which is not broadcast but is otherwise available online via the BBC Sounds website or app.”
One issue at the heart of this case is whether R1D is, by reason of only being available online, not a UK Public Service (UKPS) for the purposes of the BBC's broadcasting regulatory framework. I will explain in a moment what UKPSs are.
The Claimant is the industry body for commercial radio, working on behalf of over 50 stakeholders who operate over 300 licensed radio stations across the UK, representing more than 90% of commercial radio in terms of listening and revenue. It provides UK commercial radio with a collective voice on issues affecting the way that radio stations operate, working to secure the best environment for growth and development of that medium.
Major members of the Claimant include Global Media & Entertainment Ltd (Global) and Bauer Consumer Media Ltd (Bauer). The Claimant is concerned about the commercial impact of R1D on its members' businesses. In opening the Claimant's case, Mr Otty KC said that:
“… it is common ground that the BBC enjoys a privileged, unique position as a publicly-funded organisation, with the freedom not to need to make money to survive. It also enjoys significant competitive advantages due to its brand, prominence and status as an organisation funded by the licence payer.”
I do not dissent from this general assessment. The BBC is an Interested Party to this claim.
The Defendant, the Office of Communications (Ofcom), is the statutory regulator and competition authority for the UK communications industries, including radio and television. It was established by the Office of Communications Act 2002, and has the functions set out in the Communications Act 2003.
As described on the Claim Form, the decision challenged (the Decision) is:
“Decision of Ofcom dated 23 September 2020 not to require the BBC to conduct a Public Interest Test (‘PIT’) in relation to its proposal to launch Radio 1 Dance on BBC Sounds”
On 22 November 2021 Mostyn J granted the Claimant permission to apply for judicial review of the Decision on two grounds (Grounds 1 and 2 below). Ofcom maintained the Decision on 16 October 2020 and 11 December 2020.
Following an exchange of pleadings, and following an oral hearing, on 31 March 2022 Foxton J granted various applications to amend, and permission to the Claimant to add two further grounds of challenge (Grounds 3 and 4).
On behalf of the Claimant, Mr Otty therefore advanced the following four grounds of challenge:
a. Ground 1: Ofcom erred in law, acted irrationally and/or failed to take into account mandatory considerations, in finding that R1D, notwithstanding the many features it shares with other BBC radio services listed as discrete UKPSs, did not amount to the carrying out of an activity as a new UKPS simply because it was not broadcast on DAB. The Claimant describes this as the ‘main issue’ (Skeleton Argument, [2]);
b. Ground 2: Ofcom's secondary conclusion that R1D did not involve a material change to an existing UKPS was flawed on mandatory relevancy grounds;
c. Ground 3: Ofcom's decision involved a breach of procedural fairness and a failure to ensure effective engagement with the commercial radio sector contrary to criteria Ofcom had itself set for its own decision making; and
d. Ground 4: Ofcom's decision involved a material error of fact and further flaws on mandatory relevancy grounds, having regard to the BBC's intentions for R1D and its content, and the BBC's approach to engagement with commercial stakeholders.
As I will develop, there is an overlap between Grounds 2 and 3 on the one hand, and Ground 4 on the other.
In Section 7 of its Claim Form, the Claimant seeks the following relief:
a. an order quashing the Decision;
b. a declaration that R1D is a new UKPS;
c. a declaration that the launch of R1D amounted to a material change within the meaning of Clause 7(7)(b) of the BBC's Framework Agreement (as to which, see below);
d. an order requiring Ofcom, in relation to the launch of R1D Dance: (i) to consult with the Claimant and its Members; (ii) to direct the BBC to carry out a Public Interest Test (PIT); and (iii) to carry out a BBC Competition Assessment;
e. further or other relief;
f. costs.
I have full transcripts of the hearing which I have consulted when writing this judgment. The papers run to thousands of pages. The Claimant's lengthy Skeleton Argument contains 99 footnotes referencing the papers in micro-detail. There are also substantial Skeleton Arguments from the other parties. The context is not straightforward. All of this means the case has taken some time to resolve.
In this judgment I will refer to a witness' first and second witness statements as, eg, Rowsell 1, Rowsell 2, etc. The evidence is heavily footnoted, however I have generally not cited footnotes where I have quoted portions of the evidence.
Legal and policy framework
Before turning to the factual background, I think it is helpful to describe the legal and regulatory landscape. This was not really in dispute, although its interpretation was, in particular in relation to Ground 1.
The key legal instruments are, first, the Royal Charter (the Charter) (Cm 9365), which is the constitutional basis for the BBC, and was granted by Her late Majesty The Queen in December 2016. (There have been a number of different Charters over the years: the current one expires at the end of 31 December 2027).
Second, the Framework Agreement between Her Majesty's Secretary of State for Culture, Media and Sport and the British Broadcasting Corporation (Cm 9366) (the Framework Agreement), which is required by Article 53(1) of the Charter:
“A ‘Framework Agreement’ is an agreement between the BBC and the Secretary of State which contains a statement to the effect that it is a Framework Agreement made for BBC Charter purposes.”
The Framework Agreement goes into further detail on a number of areas set out in the Charter. The opening paragraphs of the Framework Agreement explain the background:
“(1) The BBC was first incorporated, for a limited period of time, by a Royal Charter granted on 20 th December 1926. Subsequently, further Royal Charters were granted to the BBC to continue its existence as a corporation. The most recent of these Charters (‘the 2006 Charter’) was granted on 19th September 2006 and provides for the continuance of the BBC for a period ending on 31st December 2016 (‘the current Charter period’).
(2) The Secretary of State is applying to Her Majesty for the grant of a further Charter (‘the 2016 Charter’) for the continuance of the BBC for a further period ending on 31st December 2027 and which makes provision for the process of transition from the 2006 Charter to the 2016 Charter to begin before the end of the current Charter period.
(3) The 2006 Charter is complemented by an Agreement (‘the 2006 Agreement’) made by a Deed between the Secretary of State and the BBC dated 30th June 2006 (and amended by further Deeds dated 23rd March 2010, 11th February 2011 and 13 th September 2011).
(4) Among other things, the 2006 Agreement confers, by virtue of section 198 of the Communications Act 2003 (‘section 198’), certain regulatory functions, and related powers and duties, on the Office of Communications.
(5) The 2016 Charter contains provisions, particularly Article 53, about the concept of a Framework Agreement.
(6) It is appropriate that the 2006 Agreement should be revoked and replaced by a new Agreement which will be a Framework Agreement for the purposes of the 2016 Charter and make suitable provision to complement the provisions of the 2016 Charter, including provision for the purposes of section 198.
(7) This Agreement has been prepared with the cooperation of the Office of Communications. The Office of Communications shall be consulted should any future amendments to this Agreement...
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