Abstract
This book is an extended case study of the UK communications regulator, Ofcom (Office of Communications), established by statute after considerable parliamentary and public debate in 2003. Ofcom is part of a new wave of ‘converged’ regulators and covers the formerly separate fields of broadcasting, telecommunications and radio communications. In the decade since it was set up, whether – and how – its scope should extend to regulating the internet has persistently been mooted. In a nice temporal irony, rather than acquiring that quintessentially 21st-century competence it has just taken on the regulation of a service founded in the 19th century – the post.
As reviewer, I must declare an interest. I presently chair Ofcom’s National Advisory Committee for Scotland, as an independent expert with an arm’s length relationship to the regulator.
Lunt and Livingstone’s volume looks outwards from the UK, mostly across the Atlantic to the USA and the Channel to the European continent. National in focus, it also reflects on the present-day contradictions and practical difficulties of the regulatory process as such.
To date just a few academic articles critical of aspects of Ofcom’s work have appeared, so Media Regulation is the first full-length scholarly analysis. The book has a clear architecture, beginning with an account of how media regulation has adapted to the challenges of globalization of communications, the rapid and transformative advances in technologies and the sway of neoliberal, market-oriented policy regimes that now date from the 1980s. It then discusses the emergence of a neo-regulatory model for communications, characterized by building relationships with ‘stakeholders’, attempting to pursue a ‘light touch’ approach, embracing ‘co-regulation’ with non-statutory bodies, and – in the spirit of New Public Management – seeking to pursue ‘evidence-based policies’ to demonstrate accountability.
Ofcom was set up as a New Labour ‘quango’ (quasi non-governmental organization) and inscribed with the compromise that still prevails between social democratic and market liberal approaches. It is clear that the authors situate themselves in the former camp (the ‘civic republicans’, as they helpfully label it for readers in the USA). The divergent tendencies in Ofcom’s approach are traced through a detailed analysis of the regulator’s discourse. This focuses especially on Ofcom’s statutory obligation to serve the interests of both citizens and consumers. Through interviews with senior executives (mainly in 2005) and an analysis of Ofcom’s publications, Lunt and Livingstone show that the regulator was not clear about how to deal with citizenship and that the natural initial centre of gravity was to think in terms of markets and consumers.
Ofcom struggled with the hyphenated conundrum of satisfying the ‘consumer-citizen’, a term that has slipped out of the lexicon in the course of an evolving practice in which the market and the citizen are increasingly interwoven, as the authors at times acknowledge. To illustrate, at this time of writing, Ofcom is conducting a review into media plurality for the UK government in the wake of the Leveson Inquiry into the culture, ethics and practice of the press, set up by the prime minister because of the far-reaching phone-hacking scandal that came to light in 2011. The question of plurality has unquestionable market dimensions when we think of share of voice and patterns of ownership. However, it is also squarely in the classic field of public sphere concerns when the diversity of voices and their sustaining social and cultural platforms are considered.
Lunt and Livingstone would characterize this example as citizen-related actions without a ‘principled framework’, although in fact they accept that there are internal divisions in Ofcom and also that consumer and citizenship issues can and do interconnect. For them, the normative ideal that ought to hold the regulator to account is based in Habermasian criteria of conduct in the public sphere, summarized as ‘articulating the public interest, balancing constraints, combining effectiveness and legitimation, and ensuring reflexivity regarding the consequences of regulation’ (p. 189). Ofcom, in short, is seen as ‘an institution in the public sphere’, ideally as a locus of deliberative practice about communications.
Surely, though, Ofcom can only fail the Habermasian test, as is clear from the authors’ own analysis. At various points in the text, they discuss Ofcom’s consultative processes and its continuous taking of soundings among its stakeholders, who range from government and big industry players to civil society actors and academics. They recognize the extreme inequalities of influence that pertain in the evidence game. Surely, the space in which the regulator operates is not a public sphere but an expert sphere. To prepare a submission, get on top of an argument, assemble evidence – all require expertise and resources. Evaluated as an institution in the public sphere Ofcom is set up for failure. Conceived of instead as an institution that mobilizes an unequally endowed expert sphere (and is also under continual pressure from the state) is to shift the argument from unattainable virtues to actual practices. These still remain open to criticism for their shortcomings.
Almost half the book consists of case studies. These cover public service broadcasting, media literacy, advertising regulation and childhood obesity and community radio.
The chapter on PSB gives a detailed and really useful account of Ofcom’s part in redefining the ‘purposes and characteristics’ of public service after 2004 – without doubt influencing both the UK government and the BBC. It then analyses the shift in the regulator’s role from policy initiator to a more nuanced approach as concerns about Ofcom’s policy-making mounted.
Varying political conditions shape the extent to which the regulator is a policy-maker or policy-taker, as two of the other case studies show. The chapter on media literacy charts how a provision in the Communications Act 2003 shifted from being a narrowly defined obligation to equip users for a riskier and more complex communications environment to become a field of contestation. The authors emphasize the role of academics inter alia in enlarging the scope of media literacy from protecting sovereign consumers to a broader view of participation and engagement by citizens. They argue that critical interventions by researchers may count. But openings also close. With the advent of the Coalition government that replaced Labour in 2010, Ofcom’s duties in respect of media literacy were scaled back, largely ceasing to occupy the UK policy agenda.
Ofcom inherited a ministerial policy imperative when it came to the regulation of food advertising. In a particularly astute piece of public policy analysis, the authors show how – not least through industry lobbying and a narrow approach by Ofcom to what constituted relevant evidence – a complex issue involving child development and health epidemiology was reduced to banning children’s exposure to food advertising on children’s television alone, leaving all other media outside the frame. Regulating media exposure rather than health became the governing concern.
The final – and slightest – case study considers community radio and its ambiguous fate under Ofcom: considerable growth in the licences awarded (full points for the citizens’ agenda) coupled with tough conditions for running a station due to pressures from commercial radio and the BBC. In this chapter, the authors seem oddly oversold on community radio’s ‘emancipatory’ potential.
Lunt and Livingstone conclude their tale in 2011, when Ofcom’s budget had been slashed by 28% over four years by the new Coalition government, responding to hostile pressures from the Murdoch camp and also to the Tories’ hostility to Labour quangos, for which a bonfire was being stoked. In a striking echo of how many critical scholars have come to broadly support the BBC over the past three decades, the authors qualifiedly defend Ofcom against any reduction of its public sphere role. Being explicitly told by the new ministers that it was there to support policy-making rather than make policy had a deeply chilling effect on the regulator. But this passed, as the Conservative ministerial team rapidly found that they needed Ofcom’s expertise and within months the regulator was seen as an indispensible source of policy development.
Media Regulation is an engaging book that breaks new ground and surely invites others to follow in assessing a rapidly moving regulatory scene. Written by academics whose first interest is in how regulation serves audiences, and whose normative allegiance is to Habermas, it has a particular cast.
So things do get left out, as is inevitable. Ofcom’s main business is broadcasting, broadband and spectrum and with the exception of PSB, these receive very little attention. Indeed, the choice of case studies does have a major effect on the overall picture. Not surprisingly, I have imagined how this could be different.
From the metropolis, the nations of the UK look like a sideshow. But since 1999 Scotland and Wales (and later, Northern Ireland) have enjoyed devolved status inside the British state – itself a political framework that is presently in crisis. How does a UK regulator deal with a multinational reality? The demands for dispersed television production, specific language services, new PSB systems, public investment in correcting market failures in mobile telephony and broadband speak directly to the citizen agenda that Lunt and Livingstone see as underplayed. As they concede, it is increasingly pertinent to consider just how far citizen and consumer issues are becoming intertwined. Broadband roll-out is bruited by ministers as essential to UK competitiveness, ‘digital participation’ and the ‘knowledge society’. To be digitally excluded has political consequences as well as – for instance – commercial ones. It is clear that the market will not serve remote, poor, or inaccessible areas. Even under neoliberals, state intervention – albeit inadequate in scale – is addressing gaps in connectivity. Maybe those who follow on from this landmark study will address such issues.