Section 5.1 of the Policy reflects the obligation of the BAI to consider matters relating to the character, expertise and experience of individuals/legal entities whether as applicants for a new licence or as those requesting changes to the ownership and control of a broadcasting service. The draft Policy provisions are broadly similar to the current Policy but a number of changes are proposed.
In this regard, the current Policy applies the character tests to Directors, management positions approved by the BAI and shareholders whose shareholding constitutes a substantial interest, or control, as defined. The draft Policy retains the character tests in respect of shareholders holding control or a substantial interest and Directors but limits the application in terms of management positions to the Chief Executive Officer and the company secretary. If this approach is adopted, the tests would no longer be applied to Programme Directors or Chief Financial Officers, as is currently the case. The BAI is proposing this shorter list of management positions given the maturity of the broadcasting sector and the importance of minimising administrative burden. Nevertheless, the draft Policy gives the BAI the discretion to consider the character of other management positions on a case-by-case basis. This may occur where there is a significant change in ownership and control, for example, where a group of services or a very significant player in the market changes ownership.
Under the specific tests set out at section 5.1.1, the first test dealing with criminal offences has been amended to exclude “spent convictions”. This is changed to take account of the BAI’s experience of applying the Policy and having also had regard to new legislation dealing with spent convictions – the Criminal Justice (Spent Convictions and Certain Disclosures) Act 2016.
The draft Policy also clarifies that a failure to pass a character test does not automatically disqualify an applicant (in the case of a licence application) nor will it lead to a request for a change of ownership and control being rejected. While this reflects current practice, the targeted consultation highlighted uncertainty on the part of some stakeholders about the impact of failing a character test on a decision of the BAI. This is not to say that a failure won’t be the basis for rejecting a specific request or application, rather, the Policy has been updated to clarify that this will not follow automatically.
Separately, the BAI is seeking views on whether other offences should be included as part of the character test, in addition to fraud or dishonesty and also whether adverse findings of civil/public bodies, but which do not constitute a criminal offence, should also be taken into account.
The BAI is not proposing any changes to the assessment of Expertise and Experience provisions contained in the Policy.
The 2009 Act requires the BAI, when awarding certain broadcasting contracts or multiplex contracts, to have regard to:
“the character, expertise and experience of an applicant or, if the applicant is a body corporate, the character, expertise and experience of the body and its directors, manager, secretary or other similar officer and its members and the persons entitled to the beneficial ownership of its shares.” 
Assessments of Character
In assessing character, the BAI will apply the ordinary meaning of the word and will consider, in particular, if the applicant, as set out above, is a fit and proper person to hold a broadcasting, content provision or multiplex contract (as appropriate) with reference to the provisions of sections 66 or 137 of the Act (as appropriate) and in the context of its compliance with other relevant statutory and regulatory provisions.
In addition to these character tests being applied at application stage, the BAI shall also apply these to commercial broadcasting services as a matter of policy during compliance reviews and when considering proposals for changes to the ownership and control of contractors. The tests shall apply in general to the following positions approved by the Authority:-
- Chief Executive Officer;
- Shareholders whose shareholding constitutes a substantial interest, or control
The Authority retains the right to apply character tests to other positions having regard to the particulars of an application or in the context of a change in ownership and/or control.
 Sections 66(2)(a) and 137(2)(a) of the Act. A specific provision in relation to character, expertise or experience of content provision contract holders is not set out in the Act. However, the BAI, as a matter of Policy, will continue to consider the character of an applicant when considering applications for section 71 and 72 content provision contracts.
Tests applied by the BAI in respect of Character
In relation to character, the BAI will apply the following seven tests:-
- Has the applicant ever been convicted of an offence involving fraud or dishonesty (but excluding ‘spent convictions’)?
- Has the applicant ever been restricted or disqualified as a Company Director, or convicted of any offence under the Companies Act 2014 in this jurisdiction or under equivalent legislation in any other jurisdiction?
- Has the applicant ever been adjudicated a bankrupt, become insolvent or entered into a voluntary arrangement with creditors, or had a receiver appointed to any of its assets, in this or any other jurisdiction?
- Has the applicant ever been a director of a company to which a receiver was appointed, which went into compulsory liquidation, creditors’ voluntary liquidation, examinership or which made any arrangement with its creditors or class of creditors?
- Has the applicant ever been convicted of an offence under any legislation by which Broadcasting and/or Wireless Telegraphy is regulated in this or any other jurisdiction?
- Has the applicant ever had a licence or contract issued by a broadcasting licensing body or any other statutory body suspended or revoked in this or any other jurisdiction?
- Is the applicant aware of any reason why it may not be a fit and proper person to be awarded a contract?
Individuals, contractors and other relevant parties should note that failure to pass any of the tests set out above may not automatically disqualify an applicant or a request for a change of ownership and control. The BAI will have regard to all of the relevant information provided and subsequent clarifications provided, as deemed necessary.
Assessment of Experience and Expertise
In addition to assessing character the BAI will also apply tests in respect of the experience and expertise of applicants. In addition to these tests being applied at application stage, the BAI shall also apply these to commercial/community broadcasting services as a matter of policy during compliance reviews and when considering proposals for changes to the ownership and control of contractors.
Tests applied by the BAI in respect of Experience and Expertise
In relation to experience and expertise, the BAI will apply the following two tests:-
- Does the Board of Directors of the applicant include sufficient personnel with the necessary experience, expertise and knowledge having regard to the nature of the contract proposed?
- Is the management structure of the applicant appropriate and does the membership and make-up of the management team have sufficient experience and expertise having regard to the nature of the contract proposed?
In applying these tests the BAI shall examine the proposed arrangement in terms of the relevant individuals within the structure, (e.g. is there an over-reliance on one individual in the corporate and/or management structure) and the overall membership and structure of the Board and management team (e.g. are there any independent directors).
The BAI believes that structures which reflect best practice in terms of corporate governance are key components in ensuring the delivery of quality services for audiences.
In assessing these matters the BAI shall also take into account the specific nature of the service involved, e.g. local, community, multiplex etc. In the case of community services the BAI requires that the ownership and management structures facilitate and support active participation by the community served at all levels within the service.
In relation to the composition and structure of an entity, the BAI does not differentiate between either a natural person or persons or the corporate status of the applicant i.e. type of legal entity.