In the dynamic landscape of broadcasting, the distinction between local and commercial radio is a critical one, shaped by a complex set of definitions and legal terms that determine the regulatory oversight of broadcast radio in the UK. This distinction not only impacts the operational aspects of radio stations, but also influences the diversity and richness of content available to listeners in different places across the United Kingdom.
The Broadcasting Act 1990 and the Communications Act 2003, along with a series of amendments and orders, have played pivotal roles in defining and refining the parameters of ‘local’ and ‘commercial’ radio. These legislative instruments have not only shaped the broadcasting industry but have also responded to its evolution, reflecting changes in technology, market conditions, and societal expectations.
It’s worth taking some time to delve into the intricacies of UK broadcast legislation, exploring the distinguishing features of local and commercial radio licences as defined by Ofcom, the UK’s communications regulator. From the Broadcasting Act 1990 to the Small-scale Radio Multiplex and Community Digital Radio Order 2019, the definitions and criteria for ‘local’ and ‘commercial’ radio have evolved over time, and continue to set perceptions and define boundaries today.
The Broadcasting Act 1990 is a comprehensive piece of legislation that covers a wide range of aspects related to broadcasting in the UK. The term “commercial” is not explicitly defined in the Act, but the concept of commercial broadcasting is implicitly present in the way the Act structures the licensing and regulation of independent television and radio services.
In Part I of the Act, which deals with Independent Television Services, the Independent Television Commission was established to regulate the provision of television services, which includes commercial television services. Licences under this part are subject to various conditions, including restrictions on the holding of licences and requirements as to the content of the licensed services.
In Part III, which deals with Independent Radio Services, the Radio Authority was established to regulate independent radio services, which includes commercial radio services. Similar to television services, licences for radio services are subject to various conditions and restrictions.
However, the Act does not provide a specific point where radio broadcasting is designated by ‘commercial’ licensing. The term ‘commercial’ is often used to distinguish privately owned broadcast services, which are typically funded through advertising revenue, from public broadcasting services, which are typically funded through a licence fee or public funds. In the context of the Broadcasting Act 1990, ‘commercial’ broadcasting could be understood as referring to the independent television and radio services that are licensed and regulated under the Act.
Subsequently, in the Communications Act 2003, the designations for ‘commercial’ and ‘local’ radio broadcasting services are as follows:
- Commercial radio services are referred to as “Independent Radio” under Section 85 of the Act.
- Local radio services are referred to as “Local Sound Broadcasting Services” under Section 245 of the Act.
This means, that there is no such thing as ‘commercial’ radio in the UK, despite Ofcom, the communications regulator, using the term in its communications.
The 2003 Communications Act defines local radio broadcast services in the following way:
1. A local radio service is defined as a service which—
– is provided with a view to its being available for reception by members of the public or a section of the public,
– consists in the sending, by means of wireless telegraphy, of sounds or visual images (or both), and
– is not an additional television service, a digital additional television service, a television licensable content service, a digital television programme service or a digital television additional service.
2. A local radio multiplex service is defined as a service which—
– is provided with a view to its being available for reception by members of the public or a section of the public,
– consists in the broadcasting, by means of wireless telegraphy, of a multiplex service, and
– is not a television multiplex service.
3. A local sound broadcasting service is defined as a local radio service which—
– is provided with a view to its being available for reception by members of the public or a section of the public,
– consists in the sending, by means of wireless telegraphy, of sounds, and
– is not an additional television service, a digital additional television service, a television licensable content service, a digital television programme service or a digital television additional service.
4. A local digital sound programme service is defined as a service which—
– is provided with a view to its being available for reception by members of the public or a section of the public,
– consists in the broadcasting, by means of a local radio multiplex service, of sounds, and
– is not a digital television programme service.
5. A local digital additional service is defined as a service which—
– is provided with a view to its being available for reception by members of the public or a section of the public,
– consists in the broadcasting, by means of a local radio multiplex service, of visual images or sounds (or both), and
– is not a digital television additional service.
The Community Radio Order 2004 defines local broadcast radio services, referred to as “community radio services,” in the following way:
- A “community radio service” is a local service having the characteristics set out in Article 3 of the Order (see below).
- A “community” is defined as either:
– The persons who live or work or undergo education or training in a particular area or locality, or
– Persons who (whether or not they fall within the previous category) have one or more interests or characteristics in common. - “Social gain” in relation to a community radio service is defined as the achievement of several objectives, including:
– The provision of sound broadcasting services to individuals who are otherwise underserved by such services,
– The facilitation of discussion and the expression of opinion,
– The provision of education or training to individuals not employed by the person providing the service,
– The better understanding of the particular community and the strengthening of links within it,
– The delivery of services provided by local authorities and other services of a social nature and the increasing, and wider dissemination, of knowledge about those services and about local amenities,
– The promotion of economic development and of social enterprises,
– The promotion of employment,
– The provision of opportunities for the gaining of work experience,
– The promotion of social inclusion,
– The promotion of cultural and linguistic diversity,
– The promotion of civic participation and volunteering. - For the purposes of this Order, two local sound broadcasting licences overlap if the potential audience of the service provided under either of those licences includes 50 per cent. or more of the potential audience of the service provided under the other licence.
- In this Order, in relation to any service which is intended to serve more than one community, any reference to the community which that service is intended to serve shall be taken to include a reference to every such community.
Article 3 of the Community Radio Order 2004 defines ‘local’ in the context of community radio services as follows:
- It is a characteristic of community radio services that they are local services provided primarily:
– For the good of members of the public, or of particular communities, and
– In order to deliver social gain, rather than primarily for commercial reasons or for the financial or other material gain of the individuals involved in providing the service. - It is a characteristic of every community radio service that it is intended primarily to serve one or more communities (whether or not it also serves other members of the public).
- It is a characteristic of every community radio service that the person providing the service:
– Does not do so in order to make a financial profit by so doing, and
– Uses any profit that is produced in the provision of the service wholly and exclusively for securing or improving the future provision of the service, or for the delivery of social gain to members of the public or the community that the service is intended to serve. - It is a characteristic of every community radio service that members of the community it is intended to serve are given opportunities to participate in the operation and management of the service.
- It is a characteristic of every community radio service that, in respect of the provision of that service, the person providing the service makes himself accountable to the community that the service is intended to serve.
The Community Radio (Amendment) Order 2010 does not provide a specific definition for ‘local’. However, it does make several amendments to the Community Radio Order 2004, which may impact how ‘local’ is interpreted in the context of community radio services. Here are the key points:
- It removes the restriction that a community radio licence may not be granted to an applicant who proposes to receive more than 50% of the income the applicant needs to provide the proposed service from any one source.
- It changes the conditions prohibiting the inclusion of any remunerated advertisement and sponsorship that OFCOM is required to include in a community radio licence for a service which overlaps with another local service (other than a community radio service). These conditions now apply where the potential audience does not exceed 150,000 persons aged fifteen or over.
- It gives OFCOM the power to extend community radio licences for one period of not more than five years.
- It adds two further criteria to the list of matters as a result of which OFCOM must consult when deciding whether to consent to a departure from the character of a community radio service for the purposes of a condition imposed in a community radio licence.
The Community Radio (Amendment) Order 2015 does not provide a specific definition for ‘local’. However, it does make several amendments to the Community Radio Order 2004, which may impact how ‘local’ is interpreted in the context of community radio services. Here are the key points:
- It amends article six of the Community Radio Order 2004 to allow the holder of a local digital television programme service licence to also hold a community radio licence.
- It amends the Schedule to the 2004 Order which sets out modifications to the provisions in the Broadcasting Act 1990 and the Communications Act 2003 which are applicable to community radio licences.
- It permits certain community radio stations to receive income from the taking of remunerated advertising or sponsorship of their programming output, to allow the holder of a local digital television licence to also hold a community radio licence, and to permit the holders of a community radio licence to extend their licence twice.
- It allows a person whose licence would otherwise expire within 6 months of the coming into force of the Order to make an application for renewal up to four weeks before the expiry of that licence.
The Small-scale Radio Multiplex and Community Digital Radio Order 2019 defines a small-scale radio multiplex service as a radio multiplex service that is provided for a particular area or locality in the United Kingdom and meets the following criteria:
– The service is not provided under a local radio multiplex licence.
– Either:
– Where the area or locality for which the service is provided overlaps with the coverage area of a local radio multiplex service, the size of the overlapping area is smaller than the size of the coverage area of that local radio multiplex service.
– Where the area or locality for which the service is provided does not overlap with the coverage area of a local radio multiplex service, the size of that area or locality is not larger than 7,500 square kilometres.
– Small-scale radio multiplex licence must include conditions to ensure that the holder of the licence uses the digital capacity reserved solely for the purpose of broadcasting community digital sound programme services.
In the intricate web of UK broadcasting legislation, the definition of ‘local’ broadcasting has evolved and adapted over time, reflecting the changing dynamics of the radio industry and the communities it serves. However, it is important to note that the term ‘commercial’ radio, often used in everyday parlance, is not explicitly defined in legislation. Instead, the term ‘independent’ is used to denote these services, highlighting the private ownership and operational autonomy of these stations.
Community radio, while also catering to local audiences, is in principle distinguished by its emphasis on delivering social gain to specific communities. This unique characteristic sets it apart from other local radio services, underscoring its role in fostering community cohesion, promoting civic participation, and addressing the needs of underserved audiences.
However, the current legislative framework, while comprehensive, could benefit from greater clarity and specificity in its definitions. The distinction between community radio and other local radio services is a case in point. While both serve local audiences, their objectives, operational models, and regulatory requirements differ significantly, for example ensuring access and participation in the production and management of community radio services which is not a requirement for local radio services. This distinction, however, is not always clear in the existing legislation, leading to potential misunderstandings and misinterpretations.
Therefore, it is crucial to review these principles and definitions in light of the current broadcasting landscape. A clearer understanding of these terms will not only facilitate regulatory compliance, but also promote greater transparency and fairness in the industry. It will ensure that each type of radio service – be it independent, local, or community – can effectively fulfil its unique role and contribute to the diversity and vibrancy of the UK’s radio broadcasting sector.
