Shackling media ownership

The Broadcasting Act of 1996 is shaping up to be the perfect legislation - for 1992. Complicated, long, inconsistent and interventionist, the Bill is an attempt, in part, to close some of the more obvious loopholes created by the 1990 Act. But it merely serves to create more oddities in the media landscape, and to impose arbitrary rules that will unfairly penalise some companies and unwarrantedly reward others. Worse, it does not reflect the rapid pace of change in the media sector, and will be out of date before the ink is dry.

Governments love to have a go at the broadcasting sector. Bruce Gyngell, Margaret Thatcher's favourite broadcaster and now chief executive of Yorkshire- Tyne Tees, got it right when he said, "Governments cannot seem to leave broadcasting alone."

Now that the House is in recess, it is an opportune time to reflect on the problems the Bill has already encountered, halfway through its passage, and to suggest some alternatives for the Government as it moves, painstakingly and controversially, toward the report stage after the Whitsun break.

We knew there was going to be trouble from the start, when the Lords got first whack at the Bill. There followed long, often uninformed debate about the main provisions, and then an amusing side bust-up about sport on television, which merely served to confirm what was largely already assumed: that the BBC or ITV would continue to broadcast a limited number of "heritage" events (the Grand National, England cricket, Wimbledon finals) and Rupert Murdoch could bid for the rest to feed the insatiable appetite of his pay-TV channels.

True, the Lords also had a go at the more important elements of the Bill - digital television, cross-media ownership, and the like. But very little of substance was accomplished, despite all the ink used up on the "listed events" brouhaha.

The Commons Committee took up the baton, and waded headlong into several big debates - big enough, indeed, to lead to the resignation of two right- wing Tory ministerial aides, John Whittingdale and Peter Atkinson, who, inconceivably, found themselves on the same side as the Labour members of the committee.

Both men had quite sensibly argued for a market-driven approach to media regulations (sensible, that is, if you are a right-wing Tory). They saw as arbitrary and daft the "Murdoch" clause in the Bill, which limits any publisher with more than 20 per cent of the national newspaper market from controlling commercial television companies. The clause hits two media groups - Rupert Murdoch's News International, owners of four national titles, and Mirror Group, publisher of the Daily Mirror, Sunday Mirror and the People. Mirror Group also owns 46 per cent of Newspaper Publishing, which publishes the Independent and the Independent on Sunday.

You don't have to be an unreconstructed Labourite to be worried about concentration of ownership in the media. But as the Bill establishes an over-reaching limit of 15 per cent of total TV audience share, then why single out just two companies for additional penalty? If you are anti- Murdoch, don't worry. He'll be caught by the 15 per cent rule soon enough. His BSkyB already has seven per cent of the TV market, and is growing fast. If he bought any of the biggish ITV companies, he would soon be hitting his head against the ceiling. Why would he exchange all those lovely monopoly profits from pay TV for a share of terrestrial television?

Perhaps you feel that Murdoch is a special case, and requires special rules. So why set the ceiling at 20 per cent of the national newspaper market? Why not 25 per cent (which would hit Murdoch but not the Mirror)?

As the Mirror owns such a big share of the Independent, let's make the issue plain. I see no reason why the Mirror Group should be unduly helped by the legislation. It has one of the country's biggest selling tabloid newspapers, and can expand into cable TV to its heart's content.

It just seems so arbitrary to limit two companies and leave other, arguably more influential media groups, free to expand at will. Associated Newspapers is a case in point. The Daily Mail and the Evening Standard are clearly important, agenda-setting newspapers. The rules as currently drafted will allow the Daily Mail & General Trust, the titles' owners, to buy big ITV companies. United News & Media, too, would be allowed to expand, even after its shotgun merger with MAI, Lord Hollick's TV company.

The Government ought to rethink the 20 per cent rule, and Labour will give them another opportunity to do so when the Bill reaches the floor of the House of Commons.

And it's not as if the Government hasn't already changed its mind mid- way through the Bill's passage. It bowed to lobbying from big radio groups to lift the one FM licence limit. It agreed to redraft the digital terrestrial television clauses to encourage greater investment from overseas. It has even liberalised the rules governing local newspapers and local radio - "coincidentally" helping Daily Mail & General Trust yet again, by allowing the Evening Standard, London's local newspaper to bid for Capital Radio, for example.

The lessons from 1990 ought to have been learned. Setting arbitrary ceilings and thresholds merely sows confusion and encourages deft avoidance manoeuvres by fancy lawyers. Give regulators enhanced powers to determine the public interest, by all means. But the framework ought to be simple, straightforward and market-sensitive. That's the way to encourage the growth of a robust, competitive media sector - and a much better guarantee that we will avoid having to do it all again for the Broadcasting Act of 2002.