Ofcom recently published the outcome of two cases where the community radio station has ceased broadcasting and jammed the signal (VOA) or notified Ofcom about IT problems but gone past the agreed date for live programming to resume (Afan). Both situations could have produced a better outcome had the station managers communicated fully with Ofcom about problems they were experiencing.
The full judgements are reproduced below and you can read them in their original context in this pdf file.
Broadcast Licence Condition Cases
In Breach
Non-provision of radio service
Voice of Africa Radio, community radio service for Newham, London, week commencing 11 December 2010 to week commencing 8 January 2011
This finding was originally published on 4 February 2011.
Introduction
On 16 December 2010 Ofcom discovered, via routine monitoring, that Voice of Africa Radio, the company holding a licence to provide a community radio service of the same name for the African community in Newham, London, had ceased broadcasting its licensed service. Accordingly, Ofcom spoke to a representative of Voice of Africa Radio on 22 December 2010 who confirmed that the station was not broadcasting. Ofcom wrote to Voice of Africa Radio to ask how the licensee was complying with the following two conditions in its licence relating to format delivery.
- Condition 2(1) contained in Part 2 of the Schedule to the licence, which states that: “The Licensee shall provide the Licensed Service specified in the Annex1 for the licence period.”
- Condition 2(4), contained in Part 2 of the Schedule to the licence, which states that: “The Licensee shall ensure that the Licensed Service accords with the proposals set out in the Annex* so as to maintain the character of the Licensed Service throughout the licence period.”
Response
Voice of Africa Radio was given the opportunity to make representations to Ofcom on how it considered it was complying with the licence conditions referred to above. Ofcom did not receive formal representations from Voice of Africa Radio by the deadline given. On 20 January 2010 we again spoke to a representative at Voice of Africa Radio. At this stage the station representative refuted claims that the station had been off air for a considerable amount of time and instead stated that the station had only ceased broadcasting for a few hours on 22 December 2010.
Decision
Spectrum monitoring of the frequency used by the station indicates that Voice of Africa Radio was broadcasting a „blank carrier‟ from some point during the week commencing 11 December 2010 to some point during the week commencing 8 January 2011. This means that the station was not transmitting broadcast content and was effectively jamming the frequency, which contravenes the terms of the licensee‟s Wireless Telegraphy Act Licence.
By ceasing to broadcast its licensed service Voice of Africa Radio was clearly in breach of the above licence conditions. Ofcom has therefore formally recorded this breach by Voice of Africa Radio.
Provision by a Licensee of its licensed service is the fundamental purpose for which a community radio licence is granted. Ofcom has a range of duties in relation to radio broadcasting, including securing a range and diversity of local radio services which are calculated to appeal to a variety of tastes and interests, and the optimal use of the radio spectrum.
These matters find expression in, or are linked to, the licence condition requiring the provision of the specified licensed service. Where a licensed service is not being provided in accordance with the licence, none of the required community radio programme output is provided as set out in the Licensee‟s key commitments. These include “social gain” (such as opportunities for discussion) and access to and participation in the service (volunteering opportunities, for example). This is to the potential disadvantage of the target community, and in addition, choice for listeners is reduced.
Finally, it is not an optimal use of the radio spectrum to have allocated frequencies not used for the purpose for which they have been allocated. In London in particular demand for FM frequencies is very high. The last round of Community Radio licensing in London at the end of 2009 attracted over 30 applications, with limited opportunity to award licences due to the lack of suitable FM spectrum availability in London.
Ofcom has formally notified the Licensee that we are considering these licence contraventions for the statutory imposition of a statutory sanction in light of their seriousness.
Breach of Licence Conditions 2(1) and 2(4) in Part 2 of the Schedule to the community radio licence held by Voice of Africa Radio (licence number CR070).
In Breach
Breach of Licence Condition
Afan FM, 11 to 16 December 2010 and 18 to 20 December 2010
This finding was originally published on 4 February 2011.
Introduction
Afan FM is a community radio station providing a service for young people in Neath and Port Talbot in Wales and has a particular focus on those aged 11 to 25. It has been on air since April 2007 and the output is presented by volunteers. The licence is held by Neath Port Talbot Broadcasting C.I.C. (Since 7 January 2011 the station has been re-named XS.)
The station’s licence includes as an annex a ‘key commitments’ document which sets out what the radio station is required to broadcast (which is based on the promises made by the station in its original application for the licence). On 23 December 2010 Ofcom received a complaint indicating that the station was “…playing nothing but music. There is no news and no presenters on air. It has been the case since 11th December. I am hearing the same music and adverts every hour…”
Accordingly, Ofcom wrote to the licensee, Neath Port Talbot Broadcasting C.I.C., for its comments on this. The licensee said that the station‟s IT network failed on 11 December 2010 “rendering our entire infrastructure unable to function, including back office and all studio facilities. As a result of this we were unable to provide the full service programming as stipulated in our Key Commitments.”
The licensee was advised by its engineer that “the only feasible outcome was that they should carry out an emergency programme of remedial work designed to restore service to the station at the earliest opportunity.” Ofcom wrote to the licensee again on 10 January 2011 to ask how it felt its output complied with the following two licence conditions relating to key commitments delivery.
- Condition 2(1) contained in Part 2 of the Schedule to the licence, which states that: “The Licensee shall provide the Licensed Service specified in the Annex1 for the licence period.”
- Condition 2(4), contained in Part 2 of the Schedule to the licence, which states that: “The Licensee shall ensure that the Licensed Service accords with the proposals set out in the Annex* so as to maintain the character of the Licensed Service throughout the licence period.”
Response
The licensee stated that after the IT failure on 11 December it broadcast an automated music service for the next ten days. The station representative said this comprised “a three-hour segment followed by a different two-hour segment and in addition several pre-recorded complete shows were inserted into the schedule”.
Afan FM provided a live service for the day on 17 December 2010 to “support our listeners through the worst period of winter weather and snow in over 20 years.” The licensee said that, when the station‟s playout system ceased operation, it was felt that the station would “better serve our audience to continue providing a very basic music service in preference to ceasing broadcasting and taking the service off air. Regrettably, we did not advise Ofcom of this situation.”
Decision
In mid-November, prior to the complaint under consideration, Ofcom had agreed to a two-week suspension of the full licensed service for the period 26 December 2010 to 7 January 2011, to enable changes to studio and transmission arrangements to be made.
Given this, we were concerned that we were not informed of the problems that arose and the subsequent failure to provide the service over the period 11 to 20 December (with the exception of 17 December).By ceasing to broadcast its licensed service over the period in question, Neath Port Talbot Broadcasting C.I.C was clearly in breach of the above licence conditions. Ofcom has therefore formally recorded this breach by Neath Port Talbot Broadcasting C.I.C.
Provision by a Licensee of its licensed service is the fundamental purpose for which a community radio licence is granted. Ofcom has a range of duties in relation to radio broadcasting, including securing a range and diversity of local radio services which are calculated to appeal to a variety of tastes and interests, and the optimal use of the radio spectrum. These matters find expression in, or are linked to, the licence condition requiring the provision of the specified licensed service. Where a licensed service is not being provided in accordance with the licence, the required community radio programme output is not provided. These include “social gain” (such as opportunities for discussion) and access to and participation in the service (volunteering opportunities, for example). This is to the potential disadvantage of the target community, and in addition, choice for listeners is reduced.
As made clear above, Ofcom may, in exceptional circumstances, agree to a short temporary change to output on the licensed service. The periods from 11 to 16 December and 18 to 20 December were not subject to such an agreement. Because of the prior agreement to suspend normal output from 26 December to 7 January, listeners in Neath and Port Talbot did not have a full service (including all key commitment promises) for a period of around four weeks. Ofcom has formally notified the Licensee that we are considering these licence contraventions for the imposition of a statutory sanction in light of their seriousness.
Breach of Licence Conditions 2(1) and 2(4) in Part 2 of the Schedule to the community radio licence held by Neath Port Talbot Broadcasting C.I.C (licence number CR005).
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