The Future of EPG Regulation: The View from the Stakeholders
Speech given at a Westminster e-Forum Seminar on the Ofcom Consultation on EPGs
Date: 22/01/2004
Venue: Lewis Media Centre, Westminster, London, UK
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First of all let me say that as a Member of the Ofcom Content Board which approved a Consultation framework for EPG accessibility (and separately for other services for disabled people) that I am not speaking on behalf of the Content Board or of any part of Ofcom.
Bathed in the golden light of victorious evening, let us not forget that the outcome of the Communications Act 2003, as it affects disabled people, was a close run thing. Peter van Gelder will remember that when I spoke at a Westminster Media Forum gathering on the Bill in November 2002, I said that if the Clauses on disability (or the lack of them) remained as at that date, broadcasters would be open to prosecution from disability organisations on the basis of the DDA.
Happily, an effective pincer movement took place between disability organisations on the one hand and the Ofcom Shadow Content Board, reinforced by Stephen Carter's deep and public commitment, on the other, resulted in a positive outcome which has brought us here today
At the heart of the EPG issue there lies one simple fact which is easy to overlook if you are only superficially involved with the technology; an EPG looks like the digital equivalent of an analogue programme listing system but it is more than that, it is an access mechanism. So, to take a perfectly plausible case: Mr x has been accustomed to using five terrestrial channels; he was happier when he only had two to choose from but over the years he has grown used to three, four and then five. His daughter buys him a brand new multi channel system and sets it up for him. To save confusion she thinks he will be better off with only one remote controller, rather than two, and he suddenly finds that although he has access to 387 channels, he can't readily find any of them. Mr. x may, over time, learn how to sort out his favourites and get back to his five, saving his time and wasting his kind daughter's money. Of course the objective of the broadcasters is that he should do much more than this; that he should expand his horizons, his interests, his viewing hours and his purchases; so the idea of EPG accessibility is a core strategy for increased penetration and uptake, for increased diversity and advertising revenue; but if you can't find it, you can't watch it.
Behind this, however, is the more serious case I first mentioned. If in the future you can't access an EPG then you will not be able to access programmes; some people, such as blind people like me, may end up worse off after a proposed analogue switch-off than before it. Because of the DDA and other rights legislation, a failure to sort out EPG access may delay analogue switch-off.
This is why the discussion of EPG accessibility is so important. For the first time I can recall in the sphere of disability, legislation is ahead of the technology. The Communications Act 2003 actually requires that EPGs are made accessible but we do not yet have the technology to solve the problem and with the switch over from the ITC to Ofcom we have a continuity problem. Jonathan Freeman has already told you about the VISTA project to which I was an unpaid adviser but we urgently need a continuation under Ofcom before the expertise of VISTA is totally dispersed and momentum lost. The obvious base proposition is that if you can't engineer access there is no point in regulating it. On the other hand, as I have said, if you can’t engineer access this brings about all kinds of problems not only with markets but also with rights; and in the special case of BBC listings there is also the significant matter of fiscal justice; you pay for the service and you are therefore entitled to it. This may mean that we need an interim position between what we have now and the productisation of VISTA in the form, for example, of a 'talking' remote controller that, at least, 'speaks' the numbers pressed. This might also encourage the recognition of key features being in a standard configuration on remote controllers.
From the stakeholder point of view I would say that the climate of discussion over these issues has improved perceptibly from a very poor baseline. It would help enormously if broadcasters simply behaved with a degree of courtesy by saying that they accept the moral and the legal case but are still in technical difficulties. In the context of digital technology where the medium is plastic, compliance will be plastic, too; the better and cheaper the technology the greater the accessibility which we will expect; so there is no point trying to apply analogue rigidies in a digital world. Further, there is no point in broadcasting executives and politicians telling us we live in an information age but that universal access is an optional nuisance. the Communications Act was as good as it could be but backsliding over, for example, audio description on satellite channels, particularly by the licence funded BBC, has been disappointing.
From the stakeholder perspective, then, the Act's EPG requirements are extremely welcome but the obstacles to realisation are partly technical and partly attitudinal.
It is foolish to look more than a few years into the future of technology but people and society change much more slowly than technology so I think I can make some reasonably safe points about regulation going forward. First, regulation is in inverse strength to market forces; when disability and elderly viewers are seen as an important market segment in their own right the accountants will howl for the technologies to be made available; until then there will be a sustained demand for regulation because if there ever was, there certainly no longer is, any such thing as a 'Gentleman's agreement'.
Secondly, the crunch will come when scheduled, spectrum based television is replaced by broad band, largely unscheduled entertainment-on-demand systems. At that point the border free technology juggernaut will come into direct conflict with the bicycle of human rights; politicians will be torn but the technology and its commercial backers will adopt minimalist guidelines until they re-learn their demographics of aging and purchasing power.
It seems to me, then, that we are in a short period of opportunity to set accessibility standards and drive home the market case before the next tidal wave of technology batters all the power out of regulators and legislators. The disability lobby will have to accept at last that the rights we have are not absolute, they are comparative and conflict with the rights of others; at no time in history has the right of the rich to make even more money been seriously challenged over a sustained period; this is the age of the WTO not the UN. The EPG strand of accessibility will be an important indicator of whether we grasp the limited opportunity we have to entrench accessibility as part of good commercial, as opposed to human rights, practice.