It is now a two months since Ofcom took the exceptional step on 31 March 2022 of suspending the broadcasting licence of the small Birmingham-based Sikh channel, KTV. The suspension forced the service off air immediately prior to probable revocation of the licence.
At first sight many outside the world of Punjabi broadcasting will see little of interest in what happened to KTV. But they would be wrong. There are straightforward but important compliance lessons to be learnt by broadcasters and media lawyers from this case.
LESSON ONE. When Ofcom investigates a programme, respond fully and on time. The decision against KTV causing Ofcom to suspend the licence and recommend revocation was a breach of Rule 3.1 (incitement of crime and disorder). This was because a discussion programme in Ofcom’s opinion contained a call for viewers to take violent action to achieve an independent Sikh Khalistan state in India.
It is clear from the regulator’s Decision that KTV did not engage with the investigation in detail until too late, either not replying at all, in time, or in detail. It seems that it was only when Ofcom had prepared a Preliminary View that the channel started to make a few relevant representations. But understandably these were too few and brief by this stage to persuade Ofcom to change its mind and the final Decision was issued.
Once this had happened the only way to challenge the Decision was by judicial review. And it is very difficult indeed to win a review against a specialist regulator like Ofcom, unless there is a procedural flaw in their decision-making. There was no obvious one here.
LESSON TWO. Learn lessons from previous Code breaches and don’t let breaches build up. KTV had breached Rule 3.1 twice before. This was the third contravention of this important rule in under four years. To mangle Oscar Wilde’s witticism: “To breach Rule 3.1 twice may be regarded as a misfortune; to breach it again in four years looks like gross carelessness.”
The channel also clocked up an unenviable compliance record in other areas. Ofcom recorded 33 breaches of licence conditions and Code rules, in 17 separate decisions, since the licence was granted in May 2016.
LESSON THREE. Keep promises made to Ofcom. The Notice of Suspension reveals how KTV made a series of bold promises to Ofcom to improve compliance after the two previous 3.1 breaches. Ofcom still fined the service £50,000 for these earlier contraventions but clearly hoped the channel would take its Code obligations more seriously in future.
The promised improvements however were not implemented. So when Rule 3.1 was breached yet again the regulator had reason to mistrust the service. And this time (unlike with the first two breaches), Ofcom believed it was justified in suspending the licence and seeking revocation. Not only that, but the 3.1 breach Decision also reveals Ofcom was conducting a separate investigation into whether the Licensee still remained ‘fit and proper’ to continue to hold its broadcasting licence.
If you don’t get on top of compliance, compliance failures will get on top of you.