1. See, eg, McQuail, D and Siune, K (eds) Media Policy: Convergence, Concentration and Commerce (London: Sage, 1998);Google Scholar

2. See European Commission, Green Paper on the Convergence of the Telecommunications, Media and Information Technology Sectors, and the Implications for Regulation: Towards an Information Society Approach, COM (97) 623, 3 December 1997; Department of Trade and Industry and Department of Culture, Media and Sport A New Future for Communications Cm 5010, 2000 (Communications White Paper) paras 1.1.7 and 1.1.20, available at http://www.communicationswhitepaper.gov.uk/pdf/index.htm#top.

3. See, generally, McQuail and Siune, above n 1; Herman, ES and McChesney, RW The Global Media: The New Missionaries of Global Capitalism (London: Cassell, 1997);Google Scholar

4. See, eg, Krattenmaker, TG and Powe, LA Jr Regulating Broadcast Programming (Washington: AEI Press, 1994);Google Scholar

5. Communications White Paper, above n 2, Annex D and para 1.1.15.

6. Established by the Office of Communications Act 2002.

7. Regulatory Impact Assessment Setting up Ofcom as a Single Regulator para 10, available at http://www.communicationsbill.gov.uk/pdf/OFCOM_assessment.pdf.

8. See Communications White paper, above n 2, paras 1.2.1–1.2.11.

9. The application of ‘Third Way’ politics in other policy areas is explored in Powell, M (ed)New Labour, New Welfare State? (Bristol: Policy Press, 1999).CrossRefGoogle Scholar

10. The framework used in this paper is suggested by the work of political scientist Richard Bellamy. See Bellamy, R Liberalism and Modern Society: An Historical Argument (Cambridge: Polity Press, 1992);Google ScholarSee also

11. This school of thought is often associated with works such as Hayek, FA The Political Order of a Free People (London: Routledge, 1979).Google Scholar

12. This school of thought is often associated with works such as Keynes, J Maynard The End of Laissez-Faire (London: Hogarth Press, 1926).Google Scholar

13. See, eg, Mullender, R Theorizing the Third Way: qualified consequentialism, the proportionality principle, and the new social democracy’ (2000) 27 Journal of Law and Society 493 at 495.CrossRefGoogle ScholarSee also

14. See Hutton, W New Keynesianism and New Labour’in Gamble, A and Wright, T (eds) The New Social Democracy (Oxford: Blackwell, 1999) p 98.Google ScholarLeading ‘Third Way’ texts include

15. See Mullender, above n 13, at 495–500.

16. ‘Broadcasting’ (or terrestrial broadcasting) is a communications system whereby channels of audio or video programming are sent to radio and television sets on electromagnetic waves transmitted through the air by a ground-based network of antennas and relay stations; direct broadcast satellite transmits multi-channel video and audio programming to homes, pubs and hotels by first passing the signals through satellites in geo-stationery orbit before transmitting them to a receiving station or individual receiver; cable television systems transmit multi-channel video and audio programming electronically over coaxial or fibre-optic cables, either as analogue signals (electronic pulses) or as digital information; telephone systems allow interactive, real-time voice communication by using sophisticated switching technology to route analogue or digital signals over complex networks of cables and wires linking individual homes and businesses; and the Internet is, in essence, a set of technical rules and specifications (‘protocols’) for the transfer of data that allows the exchange of information between computers linked by wires, cables, telephone lines or satellites.

17. Although certainly some areas of the general law, such as libel, contempt of court and obscenity, have a disproportionate impact on the press.

18. See, eg, Broadcasting Act 1990, ss 1–12 and 83–96 (largely replaced by Communications Act 2003, ss 263–347); ITC Programme Code, available at http://www.itc.org.uk; Agreement between Secretary of State for National Heritage and the BBC, available at http://www.bbc.co.uk/info/BBCcharter/agreement/index.shtml.

19. See Curran, J and Seaton, J Power Without Responsibility: The Press and Broadcasting in Britain (London: Routledge, 5th edn, 1997) p112.Google Scholar

20. It was argued that because the state was required to allocate broadcast frequencies to a small number of licensees, the programming offered by those licensees might be limited and biased unless special sector-specific rules were in place to guarantee diversity in programming and adequate and balanced coverage of issues of public importance. See, eg, Fcc v League of Women Voters (1984) 468 US 364 at 376;

21. Another frequently cited justification for a special regime of broadcast regulation was founded on the notion that broadcasting has a ‘uniquely pervasive presence’ in people's lives, with broadcast signals ‘intruding’ on the privacy of the homes of viewers and listeners and creating a substantial risk that children could be exposed to indecent material without parental supervision, and that sensitive adults would be exposed to offensive programming without adequate warning. See Fcc v Pacifica Foundation (1978) 438 US 726 for the classic statement of this rationale.

22. See, eg, Powe, LA American Broadcasting and the First Amendment (Chicago: University of Chicago Press, 1987);Google Scholar

23. Communications White Paper, above n 2, paras 5.2.3–5.2.4.

24. Ibid, para 5.2.4. The government relied on the scarcity rationale only once during debates concerning the Act, in justifying rules prohibiting religious organisations from holding certain broadcasting licences. See 409 HC Official Report (6th series) cols 101–102, 14 July 2003.

25. See, eg, Smith, R Craufurd Broadcasting Law and Fundamental Rights (Oxford: Clarendon Press, 1997) pp 43–63;Google Scholar

26. Communications White Paper, above n 2, para 5.3.5.

27. See especially Telecommunications Act 1996, Pub L No 104-104, 110 Stat 56.

28. See Atkin, DJ Video dialtone reconsidered: prospects for competition in the wake of the Telecommunications Act of 1996’ (1999) 4 Communications L and Policy 35 at 45.CrossRefGoogle ScholarSee, generally,

29. See Communications White Paper, above n 2, 50.

30. Chen, J The Last Picture Show (on the twilight of federal mass communications regulation)’ (1996) 80 Minnesota Law Review 1415 at 1489.Google Scholar

31. Communications White Paper, above n 2, 50.

32. Chen, above n 30, at 1425–1431; Streeter, T Selling the Air: A Critique of the Policy of Commercial Broadcasting in the United States (Chicago: University of Chicago Press, 1996) pp 173–174.CrossRefGoogle Scholar

33. Communications White Paper, above n 2, 50.

34. Ibid. The trend toward economic ‘convergence’, through which corporate giants in different media have merged into larger and larger transnational conglomerates, has not been confined by national borders. By the mid-1990s it was estimated that ten transnational media conglomerates dominated the global commercial media market, with an additional 30–40 media giants operating in niche or regional markets. See Herman and McChesney, above n 3. See also Congdon, T et al The Cross-Media Revolution: Ownership and Control (London: John Libbey, 1995);Google Scholar

35. The essential facilities doctrine was developed in several leading US anti-trust cases, including United States v Terminal Rr Association (1912) 224 US 383 Image Technical Services Inc v Eastman Kodak Co 125 F2d 1195 (9th Cir 1997); and MCI Communications Co v AT&T, 708 F2d 1081 at 1132–1133 (7th Cir 1983). See also

36. Communications White Paper, above n 2, para 5.3.10.

37. See, eg, Brenner, DL Ownership and content regulation in merging and emerging media’ (1996) 45 Depaul Law Review 1009;Google Scholar

38. See Seymour-Ure, C The British Press and Broadcasting Since 1945 (Oxford: Blackwell, 2nd edn, 1996) pp118–137.Google Scholar

39. See, generally, Doyle, G and McChesney, RW Media Ownership (London: Sage, 2002) p88.Google Scholar

40. See, generally, WA Meier and J Trappel ‘Media concentration and the public interest’ in McQuail and Suine, above n 1, pp 38–59. In the USA, for example, most markets are served by fewer daily newspapers than broadcast outlets – see Re Syracuse Peace Council (1987) 2 FCCR 5043– and, by 1990, 80% of daily newspapers were controlled by national chains, with 14 corporations controlling over half of the newspaper market, three corporations controlling over half of the magazine market and six controlling over half of the book publishing industry. See Bagdikian, above n 28, pp 18 and 22–24;

41. Communications White Paper, above n 2, paras 5.3.9 and 5.3.10.

42. Ibid, para 5.3.11.

43. See Franklin, MA and Anderson, DA Mass Media Law (New York: Foundation Press, 5th edn, 1995) p662.Google Scholar

44. See Goldberg, D et al EC Media Law and Policy (London: Longman, 1998) pp2–5.Google Scholar

45. This dimension of the ‘power’ argument overlaps with, but is distinct from, the technology-based ‘intrusiveness’ rationale discussed above n 21.

46. For variations and elaboration of these arguments, see Barron, JA Access to the press – a new First Amendment right’ (1967) 80 Harvard Law Review 1641;CrossRefGoogle Scholar

47. The notion that the consumption of too much imported media leads to the diminishment or disappearance of a people's collective (ethnic or national) identity can be traced to works on cultural imperialism. See, eg, Hamelink, C Cultural Autonomy in Global Communications (New York: Longman, 1983);Google ScholarOther scholars have challenged this notion. Ferguson derided what she calls ‘the myth of “cultural hegemony” ’, which ‘infers that the consumption of the same popular material and media products…creates a metaculture whose collective identity is based on shared patterns of consumption’; In her study of national identity in Puerto Rico, Morris demonstrated that the ‘pressure on identity’ caused by imported media can have the counter-intuitive effect of strengthening rather than diminishing group identities in receiving societies;

48. For example, Rupert Murdoch argued that ‘[m]uch of what passes for quality on British television really is no more than a reflection of the values of a narrow élite which controls it and which has always thought that its tastes are synonymous with quality’; R Murdoch Freedom in Broadcasting Edinburgh Television Festival Lecture (1989), quoted in Craufurd Smith, above n 25, p 50.

49. Entman and Wildman, above n 10, at 6.

50. Nor is this simple dichotomy the only way to categorise theories of media regulation. Nordenstreng, for instance, offers five distinct paradigms of regulatory policy: the liberal-pluralist paradigm, the social responsibility paradigm, the critical paradigm, the administrative paradigm and the cultural negotiation paradigm. See Nordenstreng, K Beyond the four theories of the press’in Servaes, J and Lie, R (eds) Media and Politics in Transition (Leuven: Acco, 1997).Google Scholar

51. See, eg, Gray, J Post-Liberalism: Studies in Political Thought (London: Routledge, 1993).Google ScholarIn particular, efforts to formulate coherent theories of media regulation are doomed to fail, critics claim, because they are contaminated by the unwitting biases of those who formulate them; because media systems are too complex and incoherent to be rationalised this way; and because theoretical structures are unable to accommodate the sheer diversity of media and the evolution of media technologies. See, eg,

52. See Streeter, above n 32, p 11.

53. Ibid.

54. Bellamy and Zvesper, above n 10, at 2.

55. See, generally, Mill, JS On Liberty and Other Writings (Cambridge: Cambridge University Press, 1989).Google ScholarSee also

56. See, eg, Meiklejohn, A Free Speech and its Relation to Self-Government (New York: Harper, 1948);Google ScholarA Meiklejohn ‘The First Amendment is an absolute’[1961] Supreme Court Rev 245.

57. See, eg, V Blasi ‘The checking value in First Amendment theory’[1977] American Bar Foundation Research J 521.

58. See, eg, Emerson, TI The System of Freedom of Expression (New York: Random House, 1970) p 7;Google ScholarSchauer, above n 55, pp 75–80; Greenawalt, ibid, at 141–142. A related argument is that respect for dissenting speech promotes tolerance. See, eg,

59. Leading advocates of the argument in the media field include I de Pool, Sola The Technologies of Freedom (Cambridge, MA: Belknap Press, 1983);Google ScholarPowe, above n 22; and Spitzer, ibid.

60. Abrams v United States (1919) 250 US 616, 30 (Holmes J dissenting). See, generally,

61. See Keane, above n 46, pp 44–45.

62. Report of the Royal Commission on the Press Cmd 7700, 1949, para 682. Similarly, Richard Barbrook has observed that French courts have interpreted the free press rights conferred by the Law of the Press of 29 July 1881 as dependent on ‘the natural right of the property ownership of printing presses’; Barbrook, R Media Freedom: The Contradictions of Communication in the Age of Modernity (London: Pluto, 1995) p 17.Google Scholar

63. McQuail, above n 51, p 147.

64. Sir Stephen Sedley ‘Human rights: a twenty-first century agenda’[1995] PL 386 at 386 (discussing the theoretical foundation of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950).

65. Ibid.

66. See, eg, Emord, above n 37; Coase, above n 22; Fowler and Brenner, ibid.

67. See, eg, I Berlin ‘Two concepts of liberty’ in Berlin, I Four Essays on Liberty (Oxford: Oxford University Press, 1969) pp 118 and 126–131;Google Scholar(‘Libertarian theory was born of a concept of negative liberty, which we can define loosely as “freedom from” and more precisely as “freedom from external constraint” ’).

68. See, eg, Den Uyl, D Freedom and virtue’in Machan, TR (ed) The Libertarian Reader (Totowa, NJ: Rowman and Littlefield, 1982) p 211.Google Scholar

69. See Commission on Freedom of the Press A Free and Responsible Press (Chicago: University of Chicago Press, 1947) p 14.

70. See, eg, de Sola Pool, above n 59, p 18.

71. For example, the invention of huge, hot-metal linotype machines in 1884 sped the printing process by fourfold, and nineteenth-century changes to company law in countries such as the UK and the USA facilitated the accumulation of capital for large-scale enterprises.

72. For a brief history of the British press in this period, see Curran and Seaton, above n 19, pp 10–57. Craufurd Smith observed that ideologically ‘radical’ publications were casualties of this trend; Craufurd Smith, above n 25, p 23.

73. Fairly recent examples of this argument in the legal literature include Barron, above n 46; Fiss, Liberalism Divided, ibid; S Ingber ‘The marketplace of ideas: a legitimizing myth’[1984] Duke Law Journal 1; Karst, KL ‘Equality as a central principle in the First Amendment’ (1975) 43 University of Chicago Law Review 20;CrossRefGoogle Scholar

74. See Siebert et al, above n 67, pp 78–80; Commission on Freedom of the Press, above n 69, pp 59–62; Hocking, WE Freedom of the Press: A Framework of Principle (Chicago: University of Chicago Press, 1947) pp 141–157;Google ScholarKeane, above n 46, p 46. While Market Liberals pointed out that media messages are not the product of single-minded monoliths, but of proprietors, reporters, editors, artists and writers who may hold differing viewpoints, critics have characterised the output of the commercial media as ‘the diversity of a pack going essentially in one direction’; Fiss ‘Why the State?’, ibid, at 787 (quotation omitted). The beliefs of the journalists and artists responsible for media content may well differ from those of the owners of media outlets, but all of those involved in media production ‘operate largely on the basis of a shared matrix of values’; Weinberg, above n 73, at 1152.

75. See Spitzer, ML Justifying minority preferences in broadcasting’ (1991) 64 So California Law Review 293 at 305;Google ScholarKeane, above n 46, p 83.

76. See, generally, Gitlin, T Inside Prime Time (New York: Pantheon Books, 1983).Google Scholar

77. See Bellamy and Zvesper, above n 10, at 2.

78. Curran, J Rethinking media and democracy’in Curran, J and Gurevitch, M (eds) Mass Media and Society (London: Edward Arnold, 3rd edn, 2000) p 120 at p 135.Google Scholar

79. Leading Marxist-influenced works addressing the social role of mass media and media policy interpret both as instruments of control for the dominant classes in society. See, eg, Herman, ES and Chomsky, N and Manufacturing Consent: The Political Economy of the Mass Media (New York: Pantheon, 1988);Google Scholar

80. Hutton, above n 14, p 97.

81. Entman and Wildman, above n 10, at 7.

82. Baker, C Edwin Merging phone and cable’ (1994) 17 Hastings Comm and Ent LJ 97 at 111.Google Scholar

83. Barron, above n 46, at 1655–1656.

84. See, eg, Commission on Freedom of the Press, above n 69; Hocking, above n 74; Inglis, RA Freedom of the Movies: A Report on Self-Regulation (Chicago: University of Chicago Press, 1947).Google Scholar

85. See especially Commission on Freedom of the Press, ibid, pp 54–68.

86. Ibid, pp 20–21.

87. McQuail, above n 51, pp 148–150.

88. See, eg, Report of the Royal Commission on the Press, above n 62, paras 481–495 and 561–571.

89. See nn 96–103 below and accompanying text. A strong preference for industry-centred reform was apparent in the publications of the Hutchins Commission. For example, the Commission's main report concluded that the ideal of a socially responsible press was better achieved through industry self-regulation than government intervention. See, eg, Commission on Freedom of the Press, above n 69, ch 5. In a seminal treatise on the media's place in political theory first published in the mid-1950s, ‘social responsibility’ achieved through self-regulation was identified as a distinct model of media regulation. See Siebert et al, above n 67, pp 73–103.

90. See, eg, Barron, above n 46; Fiss Liberalism Divided, ibid; Fiss ‘Why the State?’, ibid; Fiss, OM ‘State activism and state censorship’ (1991) 100 Yale Law Journal 2087;CrossRefGoogle Scholar

91. See, generally, Hocking, above n 74.

92. See Curran and Seaton, above n 19, p 7. This has been the generally held view since the Victorian era.

93. This reaction to Social Liberal pressures on Market Liberal assumptions has not been universally observed throughout Europe. Some countries, for example, have subsidised minority publications and contemplated direct content and structural regulation of the press; McQuail, above n 51, p 150.

94. See, eg, Fowler and Brenner, above n 22.

95. The main exceptions to this proposition are special cross-media ownership rules that limit the ability of newspaper companies to acquire interests in commercial broadcasting companies and vice versa (which are really aspects of broadcast regulation) – see Broadcasting Act 1990, Sch 2, part 4, as amended (replaced by Communications Act 2003, Sch 14) – and rules requiring that certain newspaper mergers receive the approval of the Department of Trade and Industry – see Fair Trading Act 1973, ss 57–62 and Enterprise Act 2002, s 69.

96. In the UK, industry-organised and -funded bodies that created and enforced voluntary codes of practice became particularly popular after World War II; McQuail, above n 51, pp 150–151. In fact, a rash of industry-drafted journalistic codes emerged in the USA and Europe in the wake of both world wars. See Laitila, T Journalistic codes of ethics in Europe’ (1995) 10 European J of Communication 527 at 530–531.CrossRefGoogle ScholarThis movement affected the press, broadcasting and the advertising industry in the UK, with industry-sponsored bodies such as the Press Council, the Advertising Standards Authority, the British Board of Film Censors and the Broadcasting Complaints Commission emerging over the years.

97. See, eg, Report of the Royal Commission on the Press, above n 62, paras 481–496 and 563–565.

98. Ibid, paras 682–683.

99. Ibid, paras 616–663 and 684.

101. See, eg, Final Report of the Royal Commission on the Press, ibid, para 2.12. Rather, less intrusive solutions such as improved training of journalists was advocated, despite the fact that both the 1962 and 1977 Commissions concluded that the greater concentration of power in the print media created by the operation of free markets had threatened the quality and diversity of public discourse and that there were no market-based solutions to this problem. See Curran and Seaton, above n 19, at 293.

100. Report of the Royal Commission on the Press Cmnd 1811, 1962; Final Report of the Royal Commission on the Press Cmnd 6810, 1977.

102. Report of the Committee on Privacy and Related Matters Cm 1102, 1990.

103. The Calcutt Committee subsequently criticised the Press Complaints Commission, the code it applied and the reasoning of its determinations, and recommended its replacement with a statutory press tribunal; see Review of Press Self-Regulation Cm 2135, 1993, but, thus far, the system of self-regulation has not been abandoned.

104. Either through use of independent commissions to oversee private suppliers, as in North America, or a public body answerable to a government minister, as in most Western European countries, Australia and New Zealand.

105. A market is considered a natural monopoly if costs are minimised by relying on a single supplier rather than allowing free competition. Telecommunications markets were considered natural monopolies because of substantial economies of scale and scope attributable, in part, to engineering costs and, in part, to the peculiar features of the demand for telecommunications services. See Taylor, LD Telecommunications Demand: A Survey and Critique (Cambridge: Ballinger, 1980);Google Scholar

106. This conclusion has been questioned by critics of the ‘natural monopoly’ model for telecommunications. See, eg, Brock, GW The Telecommunications Industry: The Dynamics of Market Structure (Cambridge, MA: Harvard University Press, 1981).Google Scholar

107. See, generally, I Walden and Angel, J (eds) Telecommunications Law (London: Blackstone, 2001).Google Scholar

108. See, generally, Hudson, HE Global Connections: International Telecommunications Infrastructure and Policy (New York: Van Nostrand Reinhold, 1997) pp 17–34 and 89–117.Google Scholar

109. See L Correa ‘The economics of telecommunications regulation’ in Walden and Angel, above n 107, pp 16–52. Among other things, liberalisation policies must give consideration to the unequal market power possessed by the incumbent supplier in a sector of the telecommunications industry and new entrants; the effects of prior investments on the incumbent's cost structures; and the problem of ‘bottlenecks’, where an incumbent's control of an ‘essential facility’ threatens the competitiveness of dependent services. See n 35 above.

110. Telecommunications Act 1984. See, generally, Hall, C et al Telecommunications Regulation: Culture, Chaos and Interdependence Inside the Regulatory Process (London: Routledge, 1999).Google Scholar

111. See, eg, Dyson, E Release 2.0: A Design for Living in the Digital Age (London: Viking, 1997);Google ScholarPart of the argument of the ‘cyber-libertarians’ is that this regulatory approach is compelled by the technological characteristics of the Internet. This contention has been refuted in the recent literature. See

112. Culture, Media and Sport Committee The Multi-Media Revolution 4th Report, HC 520-1, 1998, para 106.

113. The early history of the broadcasting monopoly is discussed in Scannell, P and Cardiff, D A Social History of British Broadcasting, Volume 1: 1922–1939 Serving the Nation (Oxford: Blackwell, 1991).Google ScholarSee also

114. Quoted in Craufurd Smith, above n 25, p 45.

115. Ibid.

116. Curran and Seaton, above n 19, p 114.

117. See above n 18. The Royal Charter currently in force also requires the BBC to provide informational, educational and entertainment programming as part of its responsibility to provide broadcasting services ‘as public services’. See the website available at http://www.bbc.co.uk/info/BBCcharter/charter/index.shtml.

118. See, generally, Gibbons, T Regulating the Media (London: Sweet & Maxwell, 2nd edn, 1998) pp 243–250.Google Scholar

119. For example, the Director-General was summarily dismissed by Margaret Thatcher in 1987 because of the government's displeasure with the BBC's coverage of Northern Ireland. See Barendt, EM Broadcasting Law: A Comparative Study (Oxford: Clarendon Press, 1993) pp 67–68;Google Scholar

120. See, generally, West, WJ Truth Betrayed (London: Duckworth, 1987).Google ScholarSee also Craufurd Smith, above n 25, pp 31–32.

121. But see Communications Act 2003, s 264(4) and (6) (attempting to define PSB).

122. A representative sample of the voluminous literature addressing the subject would include Raboy, M (ed) Public Broadcasting for the 21st Century (Luton: John Libbey, 1997)/Google ScholarBroadcasting Research Unit Barendt, above n 119, pp 50–74; the sources listed in Craufurd Smith, above n 25, p 46 n 5, and the sources listed in Born and Prosser, ibid, at 670 n 51.

123. McQuail, above n 51, p 156.

124. Ibid, p 157.

125. See Barendt, above n 119, p 52.

126. Born and Prosser, above n 25, at 671 n 32. A legislative definition of PSB was not attempted until s 264 was added to the text of the Act in the late stages of parliamentary debates over the legislation. The criteria identified in subss 4 and 6 largely reflect the elements discussed here.

127. Universal service and general geographical availability, for example, are founded on a certain conception of equality – all citizens have the equal right to receive essential broadcasting services, regardless of wealth or geographical location – that imposes affirmative obligations on the state. Universal availability of programming arguably fosters a common national culture, language and identity throughout the UK, and this was an original aim of the BBC (although it is now more common to see this objective referred to as the ‘cultivation of social cohesion’). The goal of providing ‘universalising’ programming that ‘invoke[s] commonality and enhances the creation of a “common culture” ’, however, must be balanced against ‘the key democratic function of staging for a society communicative and cultural (intersubjective) encounters between its plural communities and minority identities’, with ‘communicative tolerance’ central to the task of ‘mediating social and cultural differences’; Born and Prosser, ibid, at 676 and 672–673.

128. For example, ‘diversity’ emerged relatively late in the evolution of the PSB ideal. See especially Report of the Committee on the Future of Broadcasting Cmnd 6753, 1977 (Annan Report), but has taken an increasingly important place in the hierarchy of PSB objectives. ‘Diversity’ and ‘pluralism’ are terms that have been used loosely to describe a number of objectives, including the provision of a wide range of political opinions and arguments, the protection of local or regional broadcasting, the representation of minority cultures, and the provision of programming that caters to the needs of all groups in society. See, generally, Committee of Experts on Media Concentration and Pluralism Consultant Study on ‘Media Concentration in Europe: The Impact on Pluralism’MM-CM (97) 12 rev (Strasbourg: Council of Europe, 1998);Entman and Wildman, above n 10, at 8.

129. See Curran and Seaton, above n 19, pp 114–116. Presently, the BBC does engage in some commercial activities, primarily through its wholly owned subsidiaries, BBC Worldwide and BBC Resources. These activities are regulated by general competition law as well as internal fair-trading rules mandated by an agreement between the BBC and the Secretary of State (see Cm 3152, 1996) that is designed to prevent cross-subsidies between the BBC's public and commercial services and to assure that the Corporation's commercial activities are not at odds with its public-service obligations.

130. Born and Prosser, above n 25, at 671 and 658. They argue ‘that PSB is not purely responsible for filling gaps left in the market-place, but for aiding in the very definition and negotiation of social identities that are a core dimension of citizenship and, thereby, for establishing conditions of communication without which markets cannot work. In all the senses outlined, the constitutional role and the communicative functions of PSB are prior to the market, not simply part of it’; ibid, at 675.

131. Scannell, P Public service broadcasting and modern public life’ (1989) 11 Media, Culture and Society 135 CrossRefGoogle Scholar at 164.

132. See, eg, O'Neill, O Practices of toleration’in Lichtenberg, J (ed) Democracy and the Mass Media (Cambridge: Cambridge University Press, 1990) p 155.CrossRefGoogle Scholar

133. See, eg, Report of the Broadcasting Committee Cmd 8116, 1951 (Beveridge Report) paras 182–186.

134. See Gibbons, above n 118, pp 150–151. See, generally, Sendall, B Independent Television in Britain: Volume 1 Origins and Foundations 1942–62 (London: Macmillan, 1982).CrossRefGoogle ScholarCommercial radio was not officially sanctioned until the 1970s – see Sound Broadcasting Act 1972 – although the BBC faced competition from unauthorised sources such as Radio Luxembourg since the 1930s, and it was the popularity of ‘pirate’ stations in the 1960s that ultimately forced the creation of a ‘legitimate’ commercial radio sector.

135. Created by the Television Act 1954.

136. Craufurd Smith, above n 25, pp 46–47. Thus, while the regulatory apparatus for commercial operators is largely separate from that governing the BBC, the ‘public’ and ‘commercial’ broadcasters are ‘unified under a common set of aspirations and goals’; ibid, p 38.

137. Gibbons, above n 118, p 152; see, generally, ibid, pp 150–178.

138. Among other things, these codes require ‘impartiality’ on the part of licensees themselves; promote the dissemination of a wide range of opinion held by others; encourage diversity and balance in programming; prohibit offensive or ‘immoral’ programming; and generally insist upon the ‘highest possible standards’ for programme service and quality. See, eg, Broadcasting Act 1990, s 6 (replaced by Communications Act 2003, ss 264 and 319–320); ITC Programme Code, above n 18.

139. See, generally, Doyle, above n 39.

140. See, eg, Broadcasting Act 1990, Sch 12 (replaced by Communications Act 2003, Sch 14).

141. Broadcasting Act 1980.

142. Cable and Broadcasting Act 1984.

143. The ITC replaced the Independent Broadcasting Authority (the ITA's successor) and the Cable Authority. The Broadcasting Act 1990 also created the Radio Authority to oversee the independent radio industry.

144. See, eg, Home Office Broadcasting in the 90s: Competition, Choice and Quality Cm 517, 1988; Home Affairs Committee The Future of Broadcasting Third Report, HC 262-I and II, 1987–1988.

145. See Fleming, H Media ownership: in the public interest? the Broadcasting Act of 1996’ (1997) 60 Modern Law Review 378.CrossRefGoogle Scholar

146. See Born and Prosser, above n 25, at 666–670.

147. As the Communications White Paper stressed, technological developments have increased the amount and range of media content available to the public and created the potential for more direct competition between previously distinct and separate sectors of the communications industry. See Communications White Paper, above n 2, para 4.2.2. See also Department of Trade and Industry and Department of Culture, Media and Sport Regulating Communications: Approaching Convergence in the Information Age Cm 4022, 1998 (Communications Green Paper), paras 1.1–1.34.

148. Born and Prosser, above n 25, at 658. See also Independent Review Panel Report, The Future Funding of the BBC (1999) (Davies Report), available at http://news.bbc.co.uk/hi/english/static/bbc_funding_review/reviewco.pdf; Culture, Media and Sport Committee, above n 112.

149. See Davies Report, ibid (ultimately recommending that the licence fee should be retained).

150. The latter option was favoured by Collins and Murroni, above n 3, pp 173–175. A Select Committee of the Department of Culture, Media and Sport advocated a single regulator for the entire electronic communications industry (excluding the print media). See Culture, Media and Sport Committee, above n 112. Among other options considered were the creation of two new regulators, one for the communications infrastructure and another for the ‘content-providing’ sectors of the industry; and the division of economic regulation and ‘cultural and content’ regulation between two regulators. See Communications Green Paper, above n 147, paras 5.7–5.17.

151. See Communications Green Paper, ibid, at 5–6 (Executive Summary). There was a similarly unenthusiastic response from European broadcasters and governments to a suggestion in a European Commission Green Paper (see above n 2) that there should be a single regulatory authority for broadcasting and telecommunications. See Summary of the Results of the Public Consultation on the Convergence Green Paper SEK(1998)1284, 29 July 1998.

152. Draft Communications Bill Cm 5508-I, 2002, available at http://www.commbill.net/thebill.htm.

153. Those bodies are the ITC, which regulated commercial television; the Radio Authority, which oversaw commercial radio; Oftel, the telecommunications regulator; the Broadcasting Standards Commission, the ‘taste and decency’ regulator; and the Radio Communications Agency, which managed radio spectrum allocation.

154. See Communications White Paper, above n 2, paras 8.5.1 and 8.10.1; Draft Communications Bill, above n 152, cls 3 and 5.

155. See, eg, Draft Communications Bill, ibid, cls 50–57.

156. Ibid, cls 3 and 181–230.

157. Communications White Paper, above n 2, paras 5.2.6, 5.4.5, 6.1 and 5.4.3.

158. See, eg, 646 HL Official Report (5th series) col 661, 25 March 2003 (Baroness Buscombe stated that ‘although we welcome the move to liberalise existing restrictions prohibiting media convergence, we believe that the Government's approach to ownership is prescriptive and timorous…In essence, content is driven by consumer demand, not by ownership. The two issues should not be confused. We should have more confidence in our culture and allow the consumer to choose…[A]lthough the restrictions governing ownership of different media could previously be justified with reference to the scarcity of available spectrum, the media have changed exponentially in the past decade, with the advance of new technology and communications’).

159. In fact, one suspects that if a thorough content analysis of the draft Bill and accompanying documentation were conducted, references to ‘consumers’ would far out number references to ‘citizens’ and often the two terms were conflated. See, eg, Communications White Paper, above n 2, paras 1.2.10–1.2.11.

160. See Report of the Joint Committee on the Draft Communications Bill, HL 169-I and HC 876-I, 31 July 2002, available at http://www.parliament.the-stationery-office.co.uk/pa/jt200102/jtselect/jtcom/169/16901.htm, and Government's Response to the Report of the Joint Committee on the Draft Communications Bill Cm 5646, 2002, available at http://www.communicationsbill.gov.uk/pdf/Joint_cttee_CBill.pdf.

161. 646 HL Official Report (5th series) col 670, 25 March 2003 (speech by Lord Bishop of Manchester).

162. Ibid, col 666. Along similar lines, Lord Puttnam dismissed the notion that plurality and diversity can be stimulated by encouraging ‘market dominance’ as ‘frankly, risible. Recent history points only one way – towards the inevitable consolidation of conformity and power’; ibid, col 674. Lord Puttnam stressed that in an industry ‘in which the cost of entry has become all but entirely prohibitive, [it is] absolutely certain [that] plurality and diversity are not a natural by-product of unregulated market forces’; ibid, col 673.

163. Communications Act 2003, s 3(1).

164. The government feared that these proposals could expose Ofcom to multiple judicial review proceedings and undermine the regulator's effectiveness. See 409 HC Official Report (6th series) cols 44–45, 14 July 2003.

165. See Communications Act 2003, ss 32–184.

166. 395 HC Official Report (6th series) col 793, 3 December 2002 (speech by Culture Minister Tessa Jowell). See also Department of Trade and Industry and Department of Culture, Media and Sport Consultation on Media Ownership Rules November 2001, para 1.8, available at http://www.dtg.org.uk/news/archive/ownershi.pdf.

167. Communications Act 2003, s 348. Critics of this provision worry that British radio and television may become a dumping ground for cheap, inferior-quality programming produced in the USA. The government believes this can be avoided through appropriate content regulation and, in any event, see no difference between UK broadcast companies being controlled by a company such as Vivendi Universal (which cannot be barred from ownership under EC law) and multinationals such as Sony or Time Warner.

168. For example, the Act removed the 15% upper audience limit for ownership of UK television broadcasting, revoked the rule that banned single ownership of the two London ITV licences and abandoned the ‘points’ system that limited UK-wide ownership of radio broadcasting to a 15% share of commercial audiences. See Communications Act 2003, s 350 and Sch 14.

169. In addition, the Act permits consolidation of ownership in the radio industry that could result in many regions of the country receiving radio broadcasts from stations owned by only two companies other than the BBC.

170. In addition, the Act eliminates the ban on common ownership of national television and national radio licences and will, for the first time, allow joint ownership of a national ITV licence and the Channel 5 licence, and joint ownership of both a regional ITV licence plus a local radio licence for the same service area. Only a few core cross-media restrictions deemed necessary to ensure pluralism remain: no one controlling over 20% of the national newspaper market (ie Murdoch) will be permitted to hold an ITV licence, and no one controlling more than 20% of a regional newspaper market will be allowed to own the regional ITV licence for the same area; Communications Act 2003, s 350 and Sch 14.

171. This is consistent with the government's stated strategy to ‘re-base’ structural regulation as far as possible on the principles of general competition law and retain only those industry-specific rules deemed ‘essential’. See Communications White Paper, above n 2, paras 8.9.1 and 4.2.8. The Competition Commission and Office of Fair Trading will retain primary responsibility for monitoring communications markets under the Competition Act 1998 and the Enterprise Act 2002, but they will be expected to consult with Ofcom whenever mergers involving communications companies are at issue. See, eg, Communications Act 2003, ss 369–372 and 381–386.

172. See, eg, Communications White Paper, above n 2, paras 5.2.5, 5.2.6 and 5.3.5–5.3.12.

173. Like many three-tier regulatory structures, the government's policy concerning media content has four tiers. What the Communications White Paper called ‘tier zero’ contemplates an unobtrusive role for the state in connection with the dissemination of video and audio material over the Internet and via telephony. See ibid, para 5.9.1. The government has taken the view that ‘people make a clear distinction between their expectations of broadcasting and of the internet’; ibid, para 6.6.7, and that material disseminated through the new media should only be subject to the general law and industry self-regulation. Although the government ‘expect[s] to see public service broadcasters applying the same high standards and high quality in their services on the internet and via telephony as they do on their traditional broadcast businesses’; ibid, para 5.9.1, it did not bring these media within the Act's framework for media content regulation.

174. This category includes matters such as taste and decency; accuracy and impartiality; the protection of minors; advertising and sponsorship; rules governing access for disabled people; and the provision of training and rules on equal opportunities. See, eg, Communications Act 2003, ss 303–308, 319–328 and 337. While in the abstract the same standards apply to all licensed broadcasters, Ofcom will likely take into account differences in the sorts of services being provided to viewers and listeners in drafting its codes. For example, Ofcom might consider issues such as the likely degree of harm that would be caused by including particular material in specific types of programming; the size and composition of the audience that would be likely to see or hear this material; the extent to which audiences can be warned about broadcast content in advance; and the likelihood of accidental exposure to potentially harmful material; ibid, s 319(4). Ofcom may also consider audience expectations ‘as to the nature of a programme's content’, a factor that could depend, in part, on expectations about the content typically available through different delivery platforms (terrestrial, cable, satellite, etc); ibid, s 319(4)(c). See also Communications White Paper, above n 2, para 6.3.7.

175. Quantifiable obligations include quotas for original or independent productions, targets for regional programming, targets for scheduling of news during peak time and rules governing party political broadcasts. See Communications Act 2003, ss 277–289. These obligations will not be the same for every broadcaster: Channel 5, for example, is subject to fewer public-service programming obligations than ITV (Channel 3). Ofcom will also adopt regulations governing the independent radio sector analogous to the quantifiable regulation characteristic of Tier 2 television regulation, even though commercial radio stations are not regarded as ‘public-service broadcasters’ in the UK. Prominent among these regulations will be rules designed to assure that the range of programming available in any locality in the UK is not narrowed and that the ‘localness’ of local radio is preserved. See ibid, ss 312–315.

176. Communications White Paper, above n 2, para 5.8.1.

177. The Act requires each commercial public-service broadcaster to develop detailed statements of programming policy consistent with its own particular public-service remit and to provide a self-evaluation of its performance in light of its stated policy. Ofcom is then required to review and report on the state of PSB periodically. See Communications Act 2003, s 264. Reserve powers are given to Ofcom in the event that self-regulation fails, but those powers can only be exercised if that failure is not attributable to economic factors; ibid, s 270.

178. As originally devised, the regulatory structure proposed by the government only indirectly affected the BBC. Criticism of the government's failure to place the BBC under Ofcom's jurisdiction, however, dominated early debates over the Communications Bill. Among other things, the BBC was accused of arrogance and secretiveness; of abusing an unfair competitive advantage given it by the licence fee; and of being ‘judge and jury in its own court’ when resolving complaints made about its programmes. See, eg, 646 HL Official Report (5th series) cols 662–663, 25 March 2003 (speech by Baroness Buscombe); ibid, col 731 (speech by Lord Harris of Highcross); 400 HC Official Report (6th series) col 190, 25 February 2003 (speech by Andrew Mitchell); ibid, col 191 (speech by Michale Fabricant); ibid, col 210 (speech by John Whittingdale). Calls for reconsideration of the licence fee and greater regulatory and financial oversight of the BBC's activities were made. See, eg, ibid, col 166. In response to these complaints, the Bill was amended, subjecting the BBC to the first two tiers of regulation and giving Ofcom unprecedented powers in relation to the BBC. Ofcom's relationship with the BBC will be defined primarily in amendments to the Agreement between the Secretary of State and the BBC, which will provide that, for the first time, a media regulator will have the power to impose financial penalties or take other remedial actions against the BBC in the event specified standards are contravened. The BBC is made subject to all of Ofcom's codes of practice issued under Tier 1 of the new regulatory scheme, except to the extent they concern accuracy and impartiality, which will remain the exclusive concern of the BBC's Board of Governors. The quantifiable Tier 2 rules will also apply to the BBC. For now, the BBC is not, strictly speaking, subject to the third tier of content regulation, as Ofcom has not been given the backstop powers it can theoretically exercise against the commercial PSBs. Nevertheless, the BBC will be required to publish an annual statement of programming policy and must consider Ofcom's guidance and feedback in formulating that policy. See, generally, Proposed Amendments to the Main BBC Agreement dated 25 January 1996 (20 March 2003), available at http://www.communicationsbill.gov.uk/pdf/proposed_amendments_to_bbc_march.pdf. Moreover, the government will consider further expansion of Ofcom's powers when the renewal of the BBC's Charter is considered in 2005–2006; 400 HC Official Report (6th series) col 212, 25 February 2003.

179. See, eg, Communications White Paper, above n 2, paras 6.6.1–6.6.2.

180. 646 HL Official Report (5th series) col 684, 25 March 2003.

181. See Seymour-Ure, above n 38, p 232; Tunstall, J The Media in Britain (London: Constable, 1983) p 238.Google ScholarSeymour-Ure observed that British policies concerning the media have been ‘generally uncoordinated, reactive, expediential, partial and indirect; a matter of broad objectives and attitudes (“freedom of the press”, “an independent British film industry”, “public service broadcasting”, “deregulation”) rather than of detailed programmes and plans’; Seymour-Ure, ibid, p 228.

182. See Gibbons, above n 118, p 304.

183. Communications Act 2003, ss 12–13.

184. See, eg, 646 HL Official Report (5th series) col 683, 25 March 2003 (Lord Currie states that the Content Board ‘will manage the high-profile content issues within a strategic context set by the main Ofcom board, so that the main board will not be diverted from its central role as a strategic competition authority for the communications sector’).

185. Hutton, above n 14, p 99.

186. Ibid.

187. See, eg, Communications White Paper, above n 2, para 8.2.1; Draft Regulatory Impact Assessment, para E3, available at http://www.communicationsbill.gov.uk/pdf/RIA.pdf.

188. Communications White Paper, ibid, para 8.2.3.

189. Ibid, para 1.2.2.

190. Ibid, para 1.1.18.

191. 649 HL Official Reports (5th series) col 17, 23 June 2003 (speech by Lord Currie of Marylebone).

192. Communications White Paper, above n 2, para 8.11.2.

193. Draft Regulatory Impact Assessment, above n 187, para 25.

194. See Communications White Paper, above n 2, para 5.3.3.

195. Communications Act 2003, s 270(2) (concerning Tier 3 regulation).

196. See Communications White Paper, above n 2, paras 4.2.1–4.2.8.

197. See Draft Regulatory Impact Assessment, above n 187, para D1.

198. Communications White Paper, above n 2, para 5.6.10.

199. See, eg, Communications Act 2003, s 319(4) (factors to be considered in setting or revising standards objectives); Communications White Paper, above n 2, para 6.3.1 (‘viewers and listeners have different expectations about acceptability of content provided to them in different ways or circumstances’); ibid, para 6.4.1 (stressing the need for Ofcom to conduct research to keep abreast of audience expectations and attitudes).

200. Davies Report, above n 148, at 10.

201. Ibid. See also Communications White Paper, above n 2, para 7.4.1; Communications Green Paper, above n 147, paras 4.38–4.40.

202. Draft Regulatory Impact Assessment, above n 187, para E4.

203. Born and Prosser, above n 25, at 664.

204. Ibid, at 663.

205. A concept borrowed from public international law. See Wellens, KC and Borchardt, GM Soft law in European Community law’ (1989) 14 European Law Review 267.Google Scholar

206. Born and Prosser, above n 25, at 663.

207. Ibid, at 659–660.

208. Hutton, above n 14, p 98.