BBC faces legal challenge amid fears it is crowding radio rivals out
‘It’s deeply troubling the BBC’S hopes of avoiding regulatory scrutiny didn’t prompt Ofcom to act’
THE BBC has been accused of misleading regulators and rivals in a court battle over the launch of a new radio station.
Radiocentre, the industry body representing commercial stations, has waged a legal challenge against Ofcom in the High Court over its approval of Radio 1 Dance, an online-only “stream”.
Radiocentre claims the BBC disguised its plans to make new shows for the station, which launched in October 2020, and alleges the corporation intentionally cut out rivals from consultations to prevent opposition.
The fight comes amid concerns the corporation is “crowding out” adfunded rivals such as Heart and Capital.
In skeleton arguments heard last week, the commercial stations challenged Ofcom’s decision to give the green light to R1D.
They argued that the BBC should have carried out a public interest test as the venture constituted a new radio service with the same prominence as its existing stations.
Both the BBC and Ofcom rejected this claim, insisting that R1D would only be available on the BBC Sounds streaming platform and would not have any new or exclusive content.
However, Radiocentre argued that internal emails showed the BBC was planning to commission new programmes on its established stations that were made for R1D.
In an email in November 2019, BBC executive Jonathan Wall wrote that the Dance stream would include “some new OD [on-demand] first dance shows that will be played overnight on r1 or 6 music etc, but are really being made to add content to this Dance channel”.
Commercial stations also accused the public service broadcaster of a lack of transparency in the run-up to the launch, which was delayed because of the outbreak of the pandemic.
It cited emails in which BBC bosses said they would “hold off until September [2020] to engage … commercial radio at that point. The rationale being that this avoided a long summer of objections and lobbying.”
A spokesman for Radiocentre said: “This case has huge ramifications for both the commercial market and the regulatory landscape. It’s deeply troubling that the BBC’S lack of transparency and hopes of avoiding regulatory scrutiny didn’t prompt Ofcom to act.”
The BBC said there was nothing “surreptitious” about Mr Wall’s email and that it had been clear with Ofcom over its plans for R1D.
It said it had engaged extensively with the commercial sector as far back as September 2019, adding that Radiocentre was still unable to point to any evidence relating to market impact that it would have liked to raise.
Ofcom branded Radiocentre’s arguments over new content “hopeless”, saying the regulator “obviously knew that the BBC would continue to commission new programmes”.
Lawyers added that even if commercial stations had been given more time to respond to the planned launch, this would not have affected Ofcom’s decision. The legal battle highlights concerns that the BBC could use its dominant position to crowd out competition from the likes of Heart and Capital.
It also raises wider questions about whether online-only audio streams should come under the same regulatory scrutiny as traditional radio stations.
Jeremy Hertzog, a partner at Mishcon de Reya leading Radiocentre’s claim, said: “Commercial radio are concerned that it could lead to a proliferation of radio stations appearing in the same way and that they would essentially bypass regulation, and there would be a crowding out of commercial radio who don’t benefit from a licence fee.”