(a) who is not an employee (whether or not on temporary leave of absence) of a broadcaster;
(b) who, subject to paragraph (4A) below, does not have a shareholding greater than 25 per cent in a broadcaster; and
(c) which is not a body corporate in which any one UK broadcaster has a shareholding greater than 25 per cent or in which any two or more UK broadcasters together have an aggregate shareholding greater than 50 per cent.
(4A) A shareholding greater than 25 per cent which a producer has in a broadcaster shall not have the effect that the producer is not an independent producer if-
(a) the producer is incorporated under the laws of a state for the time being bound by the agreement on the European Economic Area signed at Oporto on 2 May 1992 or has his principal place of business in such a state; and
(b) the television services which the broadcaster provides are provided exclusively for reception in states which are not for the time being bound by that agreement and are not received directly or indirectly in any state which is for the time being bound by that agreement. The 1991 Order defines independent producers by reference to having an ownership stake no greater than 25% in any broadcaster. This means that an independent producer can only become a broadcaster if it is prepared to forfeit its ‘independent’ status. However the Order does include an exemption to enable independent producers to hold a greater shareholding in a broadcaster if the TV service is to be received exclusively outside the EEA – but not if the service is to be received within the EEA, including the UK.
EU Audiovisual Media Services (AVMS) Directive Article 17 of the AVMS Directive makes provision for independent producers and explains the relationship with TV broadcasters. It says: “Member States shall ensure, where practicable and by appropriate means, that broadcasters reserve at least 10% of their transmission time… for European works created by producers who are independent of broadcasters.”
Article 18 of the Directive says: “This Chapter shall not apply to television broadcasts that are intended for local audiences and do not form part of a national network.”
Articles 17 and 18 of the AVMS Directive have been carried through from the previous Television Without Frontiers (TVWF) Directive, which the AVMS Directive replaced. When the TVWF Directive was transposed into UK legislation, the exemption for local TV was not included.
Local TV framework The Government has developed a new local TV framework which it is currently implementing. This was developed in response to the historic market barriers which had worked against those interested in running local TV services, coupled with a legislative regime geared to national broadcasters.
The framework being put in place (secondary legislation was laid in December 2011) allows Ofcom to implement a local licensing regime for local TV. It will license individual standalone local services, each serving a different location – principally large conurbations in the first instance (e.g. Cardiff, Manchester, London, etc).
This is not replicating the existing regional TV structure, but rather a new market and a new service which will operate at a sub-regional level. Existing regional services (such as those offered by the BBC following the national news) will remain. The new local TV services will be at a new channel number, broadcasting on DTT with content relevant to the local population. This might include news, sport, current affairs, etc. The local stations will be able to source content through any method they wish and so could broadcast a mixture of content produced in-house and content procured from external producers.
Whilst the Government has had much interest from potential local providers, the market has not yet been fully tested. This is because the first phase of local TV licensing has not yet taken place (Ofcom will advertise licenses when they have consulted on the process; the first licenses are expected to be advertised during April/May 2012). Government is keen to ensure that the barriers to participation in bidding to operate local TV stations are reduced. It is now considering how independent producers could be involved in local TV in the most practical way.