This post picks up on some of Russ’ earlier comments relating to Ofcom’s role in regulating the interactive television market in the wake of Panorama’s expose about GMTV and others on Monday evening.

Having observed Ofcom since its inception it is undeniable that the regulator has produced much innovative and well researched work across a number of complex areas. Indeed, it could justifiably call itself a ‘world leader’ in a number of instances. But does all this research and the high level strategic thinking that is associated with it make Ofcom any good at actually regulating the various markets it is tasked with regulating?

What the recent allegations relating to interactive television quiz shows highlight is that in Ofcom’s rush to assess future developments in the television market (sic) the regulator appears to have lost sight of what it looks like right now. For all the bluster and cleverness about digital deficits, Channel 4’s future funding model, the impact of the BBC in a fully digital world, reallocation of spectrum post-switchover and the much touted PSP (Public Service Publisher) they appear to have failed to protect consumers phoning in to shows where it would either be unfeasible to guess an answer (slim chance of winning) or the quiz has actually ended (zero chance of winning).

I have a gut feeling (sorry not to be evidence based here) that the majority of people care most about what’s happening right now. Although media policy observers such as ourselves have been impressed with some of Ofcom’s thinking about potential scenarios relating to the future of television the average viewer probably doesn’t give two hoots. They just want (i.e. expect) someone to have put in place meaures to ensure that they get a fair deal when they pay for some sort of television service - be that a subscription, TV shopping, interactive voting or entering a TV quiz.

On that point - interactive quiz and/or TV shows - Ofcom appears to have failed the public. The regulator has effectively out-sourced regulation in this area to ICSTIS, who in turn appear to have failed to adequately enforce regulations. But it is Ofcom who ultimately must take the heat on this one - when they outsource regulation they also have a duty to assess and monitor how well it’s being achieved. That oversight seems to have gone awry here. Perhaps they have been busy with other things - it certainly feels that way if you are to pick up one their genuinely impressive documents. But you can’t just think regulation you have to do it too.

The key man in this area at Ofcom, Tim Suter, interviewed on Panorama on Monday, said - ‘I am confident the rules are in place’. Knowing Ofcom - and its extensive deliberations - there is no doubt there will be will plenty of well drafted rules in place. But importantly Suter didn’t follow up his comments by saying that he was confident that they were being enforced. Surely regulation is an enforcement based activity not only a rule making one. In regard to the allegations made by Panorama against GMTV and Opera Telecom it seems a lack of enforcement may have allowed certain practices to go unchecked for a number of years.

For most people it has been hard to miss the explosion of TV quiz shows on television - not just late at night but increasingly embedded at the core of mainstream television shows. To the average observer this development looks like desperation triggered undoubtably by the ever tightening television advertising market. But where you have desperation you never have to look far to find instances of sharp practices. Surely Ofcom, who have studied the implications for television of falling market share and revenues would have been acutely aware of this potential?

Whilst there certainly appears to have been a serious lapse here it should be noted that there are many legitimate operators still in this market - particularly the general PRS market beyond interactive televison. What would be unfortunate is if Ofcom, in a knee jerk reaction to its own failings, now drafted a further set of disproportionate and onerous rules during its current review of PRS rather than moving its own resources away from looking into the Riverside House crystal ball with a view to making pronouncements on the future and deploying them into oversight and enforcement of the existing rules.