From Monday 3rd April 2017 the BBC has had an external regulator for the first time. Well almost. Actually Ofcom had regulatory oversight of much of the BBC’s content since its foundation in 2003. Before that the Broadcasting Standards Council oversaw editorial standards at the BBC and other broadcasters . But now with the death of the BBC Trust,there is only one regulator and that’s Ofcom and its responsibilities for the BBC go much wider than any previous outside body. But thanks to a bit of regulatory gobbledygook there’s a loophole.

As a member of the DCMS’s advisory committee on BBC Charter Review, written off early on by former BBC Chairman Lord Patten as ‘a team of assistant grave diggers’, I am pleased to report that the patient has survived surprisingly well. Overall it is a good result for the Corporation. However, the elaborate consultation processes have been under-reported and some important issues missed.
I’m not breaching any confidentiality agreements because they weren’t any for committee members, a sign that we were in truth only the ‘sounding board’ DCMS always said we were, encouraging them about some ideas for change, cautioning them about others.
On Wednesday 29th March somebody who doesn’t work for the BBC, the CEO of Ofcom Sharon White, read out a list of things the BBC must do in future or risk a fine. After Ms White’s speech at the Nations and Regions Media Conference in Salford senior BBC executives popped up in the audience to say the draft requirements she had set out were ‘stretching’ but there was no hint of criticism. The speech marked the publication of Ofcom’s draft ‘Operating Licence’ which eventually will become its bible for how it will regulate the BBC’s performance under the new Royal Charter. A formal BBC statement said the draft licence was ‘a balanced but properly stretching and challenging document.We will consider the details carefully’.Nobody has yet said the quotas can’t be achieved.  So we can assume the BBC will spend more of its programming budget outside London, meet minimum network quotas for the individual nations of the UK, achieve increased quotas for news output and children’s television plus enforce a new diversity code (noticeably without Ofcom targets on BAME employment ). The next step is for the BBC -under its newly appointed Board- to publish an Annual Plan .

Under-reported point number one is that Ofcom would have preferred not to have had this job. Those who thought the communications regulator was hungry for more duties were wrong. So too were those who thought Ofcom Chairman,Dame Patricia Hodgson, would want to complete unfinished business from her time at the BBC.
Instead Ofcom, wary of the history of problems in BBC regulation and governance, has consistently pushed back against taking on more of the BBC than it wanted to chew. It was clear something was up the moment the newly appointed Ofcom CEO told the Commons Media Select Committee in July 2015 she wanted to ‘put a line in the sand’ between the things Ofcom already did, such as content regulation, and the responsibilities they did not have ‘the competence to discharge’. Very different from her predecessor Ed Richards’s normal line: ‘we do what parliament asks us to do’.
White said she did not see a role for Ofcom doing the “core job” of the BBC Trust, in terms of auditing the BBC, setting the strategy and measuring how it was performing against its targets and budgets.
Once Sir David Clementi’s independent report to DCMS came out for regulation by Ofcom, rejecting the creation of a regulator just for the BBC, it was clear the Government would accept this simpler, lower-cost option. And then Clementi got the job of BBC Chairman. But Ofcom had continued to push back on the detail of what it did and didn’t want to do. Which explains much of why the draft operating licence is the way it is. Ofcom has escaped on auditing and budgets, but has had to accept that it will be monitoring how the BBC is performing against its targets. Indeed Ofcom will set those quotas and targets. But to avoid having to offer any subjective views on performance the monitoring will be full of numbers not judgements; in particular the numbers of hours broadcast of specific genres. Don’t expect any judgements like; ‘It has been a good/bad year for the BBC’, more a summary of boxes ticked and occasionally unticked.
Under-reported point number two is the one particular push back on which Ofcom has had a clear-cut success; its resistance to regulating BBC News Online ,the most powerful player in British digital journalism.
Ofcom will have the final say on whether, for example, the BBC is impartial in its TV and radio coverage of the forthcoming Brexit negotiations but not on whether the BBC’s coverage online has been. That will be a matter for the BBC Board .
To avoid Ofcom coming to one conclusion and the BBC Board to another about the same piece of journalism depending on where it appeared, an elaborate piece of regulatory gobbledygook has been drafted ; ‘Ofcom will be required to “consider and give an opinion, including such recommendations as they consider appropriate, on whether the BBC has observed the relevant editorial guidelines on the content of online material in its UK Public Services” and must enter into an arrangement with the BBC making provision for this’. In other words Ofcom won’t ‘rule’ if BBC News broke the rules online, it will only ‘give an opinion’, and presumably the BBC Board will be expected to agree with that opinion.What happens if it doesn’t?
This is all about Ofcom not wanting to set a precedent for regulating online news anywhere else, such as on other broadcaster’s websites or newspaper websites. The BBC’s stated aim for the next charter period is to become a Public Service Broadcaster for the internet age, yet the increasing importance of digital and social media will sit outside the regulator’s ambit other than the occasional ‘opinion’.The BBC’s external services,increasingly digital, are also outside that ambit.
So for the foreseeable future when we say Ofcom is now the BBC’s first external regulator we should really add ‘for most but not all content’.