Radiocentre Limited, R (on the application of) v Office of Communications

An online-only BBC audio stream falls within the existing BBC Online public service where the governing framework distinguishes services principally by mode of delivery. Radio-like features such as presenters, linear scheduling, branding and placement beside radio stations do not convert an online-only stream into a radio service.

Whether an offering is a new UK Public Service requires textual analysis of the relevant services list and consideration of how the service is delivered. A separate multi-factorial analysis of its presentation and appearance is unnecessary. An online-only change may nevertheless be material if it may have a significant adverse impact on fair and effective competition.

Radiocentre sought judicial review of Ofcom’s decision of 23 September 2020 not to require the BBC to conduct a Public Interest Test before launching Radio 1 Dance on BBC Sounds.

The claim challenged Ofcom’s conclusions that Radio 1 Dance was not a new UK Public Service, was not a material change to an existing service by reason of its competitive impact, and had been assessed following a procedurally fair process. Radiocentre also alleged material errors of fact concerning the content and commissioning of the stream and the timing of stakeholder engagement.

1. Ground 1 failed. The Framework Agreement was to be construed by asking what it would convey to a reasonable reader with knowledge of its factual background and purposes, applying the approach in R (English Bridge Union Ltd) v English Sports Council [2016] 1 WLR 957. The relevant question was whether Radio 1 Dance fell within an existing service in Schedule 1.
2. The categories of television, radio and online services were mutually exclusive for this purpose. Radio 1 Dance was available only online through BBC Sounds. It therefore fell within the flexible and non-exhaustive description of BBC Online. Its radio-like characteristics did not alter that conclusion. BBC Three in its online-only form and CBeebies Radio provided relevant comparisons.
3. The proposed multi-factorial analysis was rejected. The decisive matters were the text of Schedule 1 and the mode of delivery. Radio 1 Dance was not broadcast on the electromagnetic radio spectrum and could not be received on a radio. It was consequently not a new radio UK Public Service.
4. Ground 2 failed. Ofcom had correctly understood the proposal to include existing BBC Sounds content, simulcasts, previously broadcast programmes and archive material. It also understood that future commissioning might take account of Radio 1 Dance, but that programming was not being commissioned exclusively for that stream. The stream’s limited audience and competitive effect supported the conclusion that no material change under Clause 7(7)(b) had been established.
5. Grounds 3 and 4 failed. The Claimant had not been promised a particular consultation procedure. The 14 August 2020 email was sent to the BBC, not the Claimant, and did not impose a precondition on Ofcom’s decision. Ofcom rationally concluded that it had sufficient information. No material error of fact was established under the principles stated in R (Institute of Chartered Accountants in England and Wales) v Lord Chancellor [2019] EWHC 461 (Admin).
6. The claim for judicial review was dismissed.

First-instance judicial review in the Administrative Court. The judgment records no appeal.