Digital Economy Bill - proposed changes to Ofcom’s remit

This article is part of our Media Brief newsletter.

The government recognises that the UK increasingly relies on having a world class communications network for all aspects of our lives, so that the strength of the infrastructure over which all those electronic communications pass is critical to the social and economic wellbeing of the UK. In order to address this, the Bill expands Ofcom’s remit by including measures to help ensure that there is sufficient investment in the UK’s communications infrastructure. 

Ofcom’s remit will also be expanded to help address the problem of illegal file-sharing and to ensure the fulfilment of the public sector remit for platforms in addition to television. These measures will require further action and input by Ofcom, the main points of which are outlined below. 

Ofcom’s general duties

Currently, under section 3(1) of the Communications Act 2003 (“the 2003 Act”), Ofcom’s principal duty when exercising its functions is to further the interests of citizens in relation to communications matters and to further the interests of consumers in relevant markets, where appropriate by promoting competition. 

The Bill contains provisions to impose a new general duty on Ofcom to have particular regard, when performing its functions, to the need to promote appropriate levels of investment in electronic communications networks and public service media content. That investment must be efficient, where possible. For example, investment in public service content may not always be efficient as this content serves a public policy as well as an economic objective.

Ofcom’s new reporting duties

In addition to Ofcom’s general duties, if the Bill is passed, Ofcom would be obliged to produce a number of reports to the Secretary of State aimed at keeping the government informed of the state of the communications infrastructure and matters relating to internet domain names. 

In relation to reports on communications infrastructure, Ofcom would be required to produce an initial report in the first year after this provision in the Bill comes into force, followed by subsequent reports at two-yearly intervals. The Bill also requires that should Ofcom become aware of a marked change with a significant impact on business or the public, in any of the reporting areas, and which they consider should be brought to the attention of the Secretary of State, they should write a further report.

The subject matter to be covered by the reports concerning communications infrastructure include a survey about:

• the electronic communications networks in the UK, such as the different types of networks and services, geographic and population coverage of those networks and services, emergency planning, and a comparison between the UK’s networks and services and those in a range of other countries.
• Infrastructure sharing, such as where two or more mobile operators pool their network of masts and both offer services across them
• Capacity – the amount of data that networks and parts of networks are able to carry and the rate at which they can carry it
• Wholesale arrangements – the extent to which one operator can buy capacity on another operator’s network and then sell it on to retail customers
• Use of the electromagnetic spectrum.

The Bill also enables Ofcom to use their existing information gathering powers to require communications providers and others to supply the information which they will need to write their reports. However, a demand for information must be proportionate to the use for which the information is to be put.

Other aspects of the Bill affecting Ofcom’s remit

Ofcom is currently obliged to report every five years on the fulfilment of the public service remit for television by public service broadcasters. The Bill extends the scope of this obligation by requiring Ofcom to consider the wider delivery of public service media content on other platforms, such as the internet and on-demand programme services, in addition to the television channels on which it currently reports. 

Ofcom will also be responsible for the specification of the procedural and enforcement aspects of the internet service providers’ (“ISPs”) obligations aimed at the reduction of online copyright infringement through the approval or adoption of legally binding codes of practice.  In addition the Bill provides that the Secretary of State may direct Ofcom to assess whether technical obligations should be imposed on ISPs, and Ofcom would also be responsible for creating a code setting out procedural mechanisms to give effect to any technical obligations imposed on ISPs.

The government hopes that the new obligations placed on Ofcom by the Digital Economy Bill will help ensure the country’s communications infrastructure and safeguard Britain’s important public service content for the future in a world where communications are becoming increasingly important. 

For further information, please contact Louisa Albertini.