BBC local radio plans could potentially breach operating licence

The Leeds & West Yorkshire NUJ branch has been investigating if the BBC operating licence allows the plans by BBC bosses to share more programming across the local radio network.

After many emails with Ofcom and looking through the small print, members in Leeds believe Ofcom’s regulation of local radio doesn’t add up.

Ofcom says local radio stations need to provide 95 hours a week of local output – but all of this output can be shared with neighbouring stations.

Current plans are for all stations to broadcast local output (or shared) for 86 hours – leaving them nine hours short.

In a further twist, this rule only applies 6am till 7pm. In the evening, local output needs to be not-shared, meaning tighter rules during the evening.

One member of the NUJ has been investigating this particular oddity since late last year, and explains more below:

The BBC Local Radio Changes – A Failure of Regulation

“How did we arrive at a situation where BBC Local Radio stations are not required by the regulator, Ofcom, to provide any local programmes whatsoever between the hours of 6am and 7pm, and yet may still end up in breach of their Operating Licence?

Members of the NUJ Leeds and West Yorkshire Branch have been doing some research into the history of BBC Local Radio regulation.

Until 2012, BBC Local Radio stations were required under the Operating Licence issued by the BBC Trust to “provide 85 hours per week of original, locally-made programming”. A clear and unambiguous commitment. So, what happened to this?

In the BBC Trust Operating Licence published in May 2012, a new line appeared in the licence for the first time (on page 5):

Programming shared with neighbouring stations broadcast between 06:00 and 19:00 can be included in the total.

Why was this line added in 2012? In the BBC Annual Report of July 2012 – Performance Against Public Commitments, page s15, we find the following footnote:

All Local Radio stations exceed the average minimum weekly hours of original locally made programming, except Lincoln. Lincoln’s originated hours appear lower because it shares origination of the mid-morning show with Humberside, but for service licence purposes these are all listed under Humberside.

This refers to the Peter Levy Show, which at that time was broadcast weekdays 12-2pm from Radio Humberside, and taken by Radio Lincolnshire.

It seems likely that this line was added to the licence to allow the lunchtime Humberside/Lincolnshire share, which was the only weekday daytime shared programme on the network at that time. The line remained in the licence every subsequent year.

Fast forward to 2017. The BBC Trust has been wound up, and regulation handed to Ofcom. What would Ofcom do to the local hours commitment? They increased it, from 85 to 95 hours per week. Surely the idea behind this was to get local radio stations to make more local, rather than regional, programmes.

How did the BBC respond to the increase in hours? By ending the All England Evening Show, and replacing it with local programming at each station between 7-10pm, Monday to Friday, an increase of 15 local hours which could be added to each station’s total.

Now we get to 2022, and the BBC announces major changes to local radio. The majority of output will be shared between stations or across the entire network. Local programming for most stations will be limited to 6am to 2pm on weekdays only, plus sport.

Surely such a level of programme sharing isn’t permitted by the operating licence? We noticed that the reason for Lincolnshire’s failure to meet the quota in 2012 was that Humberside, as the originating station, was allowed to count the programming as “locally-made”, but Lincolnshire, as the receiving station, was not. We also noticed that there were lower local hours quotas set of three radio stations: Somerset, Jersey and Guernsey. Again, this could be explained by the fact that Somerset used to take weekday afternoons and most of the weekend from Radio Bristol. As the receiving station, it couldn’t count the hours as “locally-made”. Similarly, Guernsey and Jersey arranged their shared programmes in a way that allowed each station to meet their slightly lower quotas, with Jersey providing weekday afternoons and Guernsey providing weekday evenings.

We decided to ask Ofcom about this. Can shared programmes be counted by stations receiving the output as well as those originating it? Here’s what they said:

Under the licence, programming shared with neighbouring stations broadcast between 06:00 and 19:00 can be counted towards each BBC local station’s quota for original, locally-made programming. As such, it is the case that after 7pm the BBC cannot count shared programming towards this quota. This time condition for shared programming, and the variations to the original, locally-made programming quotas for Jersey, Guernsey and Somerset were first introduced by the BBC Trust and inherited when Ofcom introduced the first Operating Licence. Any shared programming that counts towards the quota can do so for the station which shared that programming (i.e. the sharing station) and the neighbouring station with which that programming was shared (i.e. the receiving station).

This left us with some unanswered questions. If shared programming could be counted by receiving as well as originating stations, what was the rationale for the exceptions for those three stations? Here’s Ofcom’s reply:

As set out in our earlier email, the variations to the original, locally-made programming quotas for Jersey, Guernsey and Somerset were first introduced by the BBC Trust and adopted by Ofcom when we introduced the first Operating Licence. These conditions have not been amended as no specific questions or concerns were raised about them, either in our initial work on the first Operating Licence or in our recent review.

That’s all very well, but it doesn’t explain the reason why lower quotas are set for those stations. (And perhaps the reason no concerns were raised during Ofcom’s consultation on the licence is because it took place before the BBC announced its plans, and most people wouldn’t have known it was happening, which might perhaps explain why the consultation received a grand total of just 12 responses). Ofcom’s answer for anything it doesn’t understand or can’t explain is to blame the BBC Trust, and the fact that the licence was “inherited”. You would think that in 7 years they might perhaps have taken some time to scrutinise it.

A reminder again that Ofcom’s interpretation of the Operating Licence it inherited means that stations don’t have to originate any local programming at all between the hours of 6am and 7pm, 7 days a week.

In reply to our enquiry, Ofcom says:

Programming shared with neighbouring stations broadcast between 6am and 7pm can be counted towards each BBC local station’s quota for original, locally-made programming, amounting to 13 hours a day, 91 hours a week or 4,745 hours a year.

But hang on – the stations are required to provide 95 hours of “original, locally-made programming” each week, so that would leave all stations 4 hours short. So what about shared programmes after 7pm? We asked Ofcom, and this is what they said:

While shared programming provided by another station cannot be used to meet the quota for original, locally made programming after 7pm, the stations can include their own original programming after 7pm, including if they have shared their original content with another station.

It seems a bit odd, to say the least, to place a tougher interpretation on “locally made” after 7pm, when audiences are lower and most programmes are music-based, so we asked Ofcom to explain the rationale behind this. This was their reply:

The 6am to 7pm timeslot used for each BBC local station’s quota for original, locally-made programming is a well-established time descriptor used to denote daytime programming, with evening programming beginning after 7pm. This time period was first introduced by the BBC Trust and retained when Ofcom introduced the first Operating Licence in 2017. It was not amended as no specific questions or concerns were raised about them, either in our initial work on the first Operating Licence or in our recent review.

Sorry, but we didn’t ask for a definition of the words “daytime” and “evening”. We asked the regulator to explain the reasons for the stricter rules on shared programmes after 7pm. They chose to ignore that question and repeat again the defence that they inherited the licence from the BBC Trust.

We wanted to be absolutely sure that we had our central fact right, that BBC local radio stations could originate no local programming whatsoever between 6am and 7pm, 7 days a week, taking all programming from “neighbouring stations”, and count it as “locally-made”, which, under any definition of those words, it is not. Ofcom stated twice in their correspondence with us that “Locally made programming is an important part of the BBC’s delivery”. With this being the case, we asked Ofcom, “what is the minimum number of hours (per week or annually) each BBC Local Radio station must make and broadcast from within that station’s licensed coverage area (and not networked from other stations)?” This is what they said:

The Operating Licence does not contain a specific requirement for a set number of hours to be made and broadcast by a particular local radio station. However, as “original, locally-made programming” can include programming shared with neighbouring stations broadcast between 6am and 7pm (which as noted in our previous email amounts to 4,745 hours a year) the BBC must ensure that at least a further 209 hours of original, locally-made programming are broadcast outside of these hours on each BBC Local Radio station.

So just 4 local hours per week, broadcast sometime after 7pm, is the minimum requirement.

But what about all England programming, which is planned between 10pm and 1am, 7 nights a week, and after 2pm on Sundays? Does that also count towards these quotas? Here’s the answer from Ofcom:

We would not expect All England programming to count as original, locally made programming as an All England show could not be described as being shared with neighbouring stations.

We recognise that the BBC’s planned changes to local radio involve broadcasting some ‘all- England’ programming during daytime hours (e.g., on Sunday afternoons). It will therefore need to ensure it broadcasts enough original programming in the evenings across the course of the year, in addition to the 209 hours mentioned above, to meet the overall local programming quota.

So, deduct 5 hours on Sundays between 2 and 7pm, which is “All England”, and can’t be counted. That leaves 86 hours per week available between the hours of 0600 and 1900, which every station can immediately award itself under these rules, even if it originates no programming within these hours. This leaves most stations with a deficit of 9 hours per week, which would need to be locally originated (not shared from another station) sometime after 7pm. Will all of the BBC Local Radio stations be originating 9 hours per week of local programming between the hours of 7 and 10pm? If not, they may not be compliant even under this very lightweight operating licence.

How much tougher are the rules on “locally-made programming” for small community stations. Here’s what Ofcom requires of them:

Locally-produced output is content which is made and broadcast from within the station’s licensed coverage area. It may include all types of local production including repeats and continuous music, as long as it is created anywhere within the licensed coverage area and is not material that is networked from other stations.

That hardly seems fair, does it? We asked Ofcom why the rules on “locally-produced output” are so much more demanding for community radio. This is Ofcom’s reply:

“Community radio stations typically cover a small geographical area with a coverage radius of up to 5km, fuelled by the work and enthusiasm of volunteers. However, BBC local radio stations typically cover larger geographical areas ranging from major conurbation services such as Birmingham, London, Manchester and Sheffield to more rural/large town area services such as Cumbria, Somerset, and Teesside. Community radio stations and BBC Local radio stations are distinct and subject to different rules.”

Again, we know the difference between the types of station, but that wasn’t what we asked.

All in all, the Operating Licence is a mess. Ofcom can’t or won’t explain key contradictions in the licence. The metrics simply do not allow for any scrutiny or accountability going forward.

None of this means that Ofcom is happy with the BBC’s plans for local radio. Ofcom said in its public letter to the BBC in February 2023:

We are considering whether, in light of responses to our consultations on the new Operating Licence and the BBC’s changes to local radio provision, our proposals for regulation of local radio remain appropriate.

If we identify any concerns about the BBC’s provision of local content, we will consider whether we need to introduce further requirements into the Operating Licence.

Surely now is the time to rewrite the operating licence. Concerns have been raised. It is not fit for purpose.”