Yesterday’s Times had an op-ed piece commenting on the idea that Stephen Carter might take the top post at ITV. The Times said in part:

It is . . . far too soon for [Stephen Carter] to switch to running a business that he has recently been regulating. The nature of his position at Ofcom means that he has seen extremely sensitive business-plan material and been informally consulted on strategic matters that range well beyond Ofcom’s official remit. In his post he has deliberately (and reasonably) sought to assist ITV through troubled times to ensure that the number of large broadcasters does not fall from three to two.

He would be in an unduly privileged place at ITV, knowing more about the company and regulatory thinking towards it than would his successor at Ofcom. Under the oddly cosy arrangements that operate at Ofcom, its chairman, Lord Currie of Marylebone, has the discretionary authority to impose an extra six months ‘gardening leave’ on Mr Carter to stop him securing ‘in-appropriate’ employment. Ofcom will be a laughing stock if he does not do so. He should then turn his mind to ensuring that his next chief executive signs a more ethically robust contract.

My take: These types of comments about Stephen Carter’s future may be premature. It may be the case that Carter is not even considering the ITV post. But of course the sentiment underlying this op-ed piece is spot-on. We’ve said for quite some time here at OfcomWatch that Ofcom need to create clear and bright lines between itself and the industry that it regulates. If ITV were to employ Carter it would make a mockery of this notion and poison (to some extent) Ofcom’s relationships with ITV’s competitors.

But the underlying problem is structural and has nothing in particular to do with Stephen Carter’s departure from Ofcom. It’s a simple fact: Ofcom is structured — in many important respects — to resemble a corporation, not a public regulator. So, it was simply a matter of time before Ofcom got slammed in the press for doing the types of things that are acceptable for private firms, but odious in the field of public regulation.

Ofcom simply do not have the proper ethical safeguards in place when it comes to policy-oriented meetings. Take the example of ex parte rules. Ofcom - to the best of my knowledge - has flatly rejected the idea that policy meetings between regulated entities such as ITV and Ofcom should be ‘on the record’. On the record meetings means that the key details of the meeting (who, when & a summary of what was discussed) are made available to the public and other regulatees. The U.S. FCC and many other regulators do this routinely, yet still keep the system fair for regulated firms by ensuring confidential materials remain out of the public’s grasp. For a brief overview of the FCC’s ex parte rules, click here.

So, if ITV meets with Ofcom to discuss Channel 4’s funding and future, not only are the positions expressed at that meeting not made public, the fact that a meeting happened is itself secret, unless unearthed through the FOI process or leaked. So, when Sky or Five claim that they have given Ofcom briefings and that Carter’s employment at ITV would be problematical, the rest of us are in no position to make an informed decision on that issue. Nobody knows except a few Ofcom insiders and the parties themselves.

That’s no way to regulate in the public interest.

By the way - ITV is completely unwatchable. Period. They don’t need Stephen Carter. They need Barry Diller.