International standards: Regulation of broadcasting media
05 Apr 2012
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By far the most important source of information, as well as of entertainment, for most people around the world is the broadcast media. Radio and television are delivered straight into the living room for free, making them the most easily accessible media, particularly for the poor and those in rural areas.
Due to its centrality as a source of news and information, and therefore its ability to influence the opinions of the public, broadcasting is often the target of illegitimate control. In many countries, the State-funded broadcaster operates as a mouthpiece of government rather than presenting diverse sources of information of public interest, while private broadcasting is either prohibited or its independence is curtailed through a variety of mechanisms.
In contrast to the ‘hands off’ approach most suited to the print media, an effective broadcasting system which serves the public interest cannot survive without official regulation. The electromagnetic spectrum is a limited resource, and while new technologies are beginning to increase the number of channels that can be carried, demand for spectrum still outstrips supply. Since States are required under international law to guarantee their citizens freedom of expression “through any medium”, the available spectrum must be rationed in a way which maximises the ability of different voices in society to speak and be heard over radio and television. The US Supreme Court explained the need for regulation in simple terms in Red Lion Broadcasting Co. v. FCC:
If 100 persons want broadcast licenses but there are only 10 frequencies to allocate, all of them may have the same “right” to a license; but if there is to be any effective communication by radio, only a few can be licensed and the rest must be barred from the airwaves. It would be strange if the [guarantee of freedom of expression], aimed at protecting and furthering communications, prevented the Government from making radio communication possible by requiring licenses to broadcast and by limiting the number of licenses so as not to overcrowd the spectrum.
By the same token … the licensee has no constitutional right to … monopolize a radio frequency to the exclusion of his fellow citizens. There is nothing … which prevents the Government from requiring a licensee to share his frequency with others and … present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves.
In most democratic countries, broadcast regulators undertake two key functions: allocating broadcast frequencies through the award of licences and developing and applying codes of broadcasting conduct, which normally deal with a range of content and broadcast practice issues.
These regulatory functions presents two basic dilemmas: how to promote independent broadcasting yet ensure that it serves all regions and groups in society, and how to regulate without the regulation becoming an instrument of improper government control. This document will describe the international standards which have been developed to ensure that these dilemmas are overcome.
Pluralism and frequency planning
Pluralism – the availability of a wide range of content serving the needs and interests of all different groups in society – is a fundamental concept both to democracy and to the protection of free expression. A State in which only a privileged few can effectively express their opinions cannot be said to be a free society. Such a situation breaches not only the rights of those who are unable to make themselves heard, but also the right of each individual citizen to be well-informed and to receive information from a variety of sources. For these reasons, international law requires States to take steps to safeguard pluralism. The European Court of Human Rights has frequently stressed
… the fundamental role of freedom of expression in a democratic society, in particular where, through the press, it serves to impart information and ideas of general interest, which the public is moreover entitled to receive. Such an undertaking cannot be successfully accomplished unless it is grounded in the principle of pluralism, of which the State is the ultimate guarantor.
The protection of pluralism should be the principal goal of State regulation of the broadcast media, which might otherwise easily be monopolised by the government or a small section of the population. Promoting pluralism means ensuring a diversity of broadcasting organisations, of ownership of those organisations, and of viewpoints and languages represented in the programmes they carry.
The starting point of a good broadcasting policy is usually the formulation of a frequency plan, which stipulates how that part of the spectrum available for broadcasting will be utilised. The idea is to ensure that frequency allocation takes place on a planned basis, not just to the highest bidder. In established democracies, this task is entrusted to an independent broadcast regulator (see the next section), which is required by law to promote a number of values, such as freedom of expression, accuracy, impartiality and, of course, pluralism. Frequency plans normally reserve separate ‘slices’ of spectrum for national, regional and local broadcasting. These are then divided up amongst radio and television, and divided once more amongst public, commercial and community broadcasting. Finally, criteria are set for the awarding of licences for each of the resulting broadcasting ‘blocks’. These criteria should be carefully designed to promote pluralism, including by promoting the availability, in the different regions and languages represented in the country, of programming that caters to their needs.
A frequency plan which has come about through consultation with all those with a stake in it – in particular broadcasters and representatives of their audiences – stands the best chance of serving the public interest effectively.
Protecting the independence of the regulator
When the task of rationing the broadcast spectrum is left to the government, government and its allies tend to end up as the greatest beneficiaries. But even when a government approaches this task in good faith, fear of losing a licence can induce broadcasters to practice self-censorship and toe the official line. As one observer noted wryly, “So long as the [government] can determine which individuals shall be endowed with larynxes, it does not need additional power to determine what shall be said.”
The logical solution to this problem, which has been adopted in most democracies, is to allocate the power to regulate broadcasting to an administrative body which is independent of government. Further protection for freedom of expression can be achieved by circumscribing the powers of this body very carefully and guaranteeing the possibility of a judicial appeal against its decisions.
Perfect independence is difficult to achieve, but a number of measures can help prevent political or other interference in the work of the regulatory body. The following is a summary of the key recommendations on this subject made by the Council of Europe and ARTICLE 19:
- The regulatory body should not be part of or affiliated to any ministry or other government institution. Its independence should be explicitly guaranteed by law and, if possible, also in the constitution.
- The body should be overseen by a governing board, which should be appointed according to a procedure which is clearly defined in law, is not dominated by any particular political party or commercial interest, and allows for public participation and consultation, including the nomination of candidates by civil society. Appointments should not be left to a single person or political party; in many countries, this is done by an all-party committee of parliament. Regardless, the government should not be able to control the appointments process.
- The law should define a number of exclusions or ‘rules of incompatibility’ which apply to candidates for membership in the board. At a minimum, no one should be appointed who: 1) is employed in government, the civil service, a political party, or is an elected representative; or 2) holds a position or has a significant financial stake in broadcasting or the telecommunications sector.
- Once appointed, members of the governing board should be protected against removal outside of exceptional circumstances. Their term of office (tenure) should be fixed and the possible grounds for removal should be clearly defined by law. The power to remove should rest with the same body as the power to appoint, and be subject to judicial review.
- The regulatory body should be accountable to the public through a multi-party body, such as parliament or a parliamentary committee. It should publish an annual report providing an overview of its activities and finances, and be required to provide annual audited accounts of its expenditures.
- The body should be adequately funded in a way which protects it against political interference. The framework for funding should be set out in law and define clear criteria for periodic readjustment. One good way of ensuring the body’s financial independence is to allow it to use the fees charged for broadcast licences to sustain itself, supplemented by a grant from the general budget if necessary.
Administration of broadcast licences
Allocation of licences
In most countries, periodic calls for licence applications are issued, in accordance with the frequency plan, so that interested parties may compete for the licences being offered.
In order to ensure transparency, the process for assessing licence applications should be set out clearly and precisely in law. Time limits within which decisions must be made should be specified, in such a way that each of the applicants has an opportunity to be heard and the general public is able to submit comments. The criteria by which applications are judged should be announced in advance, and preferably set out in the primary legislation. Examples of common criteria are whether the applicant possesses the necessary technical expertise and financial resources to provide the proposed broadcasting programme. In line with the importance of promoting diversity, an important licence criterion is the extent to which the proposed broadcasting is likely to contribute to meeting the needs of diverse groups in society, taking into account existing content availability.
Blanket prohibitions on the basis of applicants’ form or nature normally represent a breach of the right to freedom of expression. Licensing decisions should be made on a case-by-case basis, taking into account all of the circumstances, rather than being subject to rigid a priori rules. One exception is a ban on political parties holding licences, common in democracies, given the obvious potential that party-aligned stations will unfairly skew the political process. Applicants for a licence should not be required to pay a deposit, although a small fee to defray the costs of processing the application is justifiable.
Once the regulator has taken its decision, it should be communicated to the applicants, accompanied by written reasons. Anyone who has been refused a licence should be able to apply to the courts for judicial review.
Licences usually come with several terms and conditions. These are of two types: general conditions – normally set out in primary or secondary legislation – and specific conditions, which are set individually for the licensee. All such terms and conditions should be relevant and consistent with the broadcasting policy, and this is particularly important for specific conditions, to prevent this being abused for political reasons. They should not intend to, or have the effect of making use of the licence unreasonably difficult or financially unattractive. In particular, the duration of the licence should be sufficiently long to allow broadcasters to recoup their investment. Once the term has expired, the licence should normally be renewed, unless doing so would be against the public interest, a concept which should be elaborated in the broadcasting law.
If a licence fee is charged, it should be reasonable and certainly not be so large as to undermine the commercial viability of the sector as a whole. A fee schedule should be published in advance, and arbitrary distinctions – such as charging higher fees for broadcasters who carry news – should not be allowed.
Regulating broadcast content
Licensing is relevant to broadcasting content inasmuch as the provision of diversity of programme content is a licence criterion. At the same time, in most countries, broadcast regulators also have a mandate to develop administrative codes of conduct to which broadcasters must adhere. Such codes can be legitimate, so long as they do not impose criminal or civil liability for programme content and are developed in close consultation with broadcasters and other stakeholders. No code should be imposed if an effective system of self-regulation is in place.
Broadcasting codes normally deal with a wide range of programming issues such as accuracy, privacy, and the treatment of sensitive themes like bereavement, sex and violence. A common and important rule is the requirement of balance and impartiality in the coverage of news and current affairs. Codes may also address questions of professional ethics, including the use of subterfuge to obtain information, the conduct of interviews and payment for information. An important area in which codes can serve a useful role is in ensuring balanced and impartial election coverage. Finally, such codes may deal with issues relating to advertisements.
The primary goal of a broadcasting code should be to set standards rather than to punish broadcasters for breaches. Sanctions should in the first instance aim at reforming behaviour, and so consist of a warning or requirement to broadcast a message recognising the breach. More serious measures, such as fines or suspensions, should be applied only after repeated and serious breaches, when warnings and milder sanctions have failed to redress the problem.
Public service broadcasting
Most countries around the world have one or more national, State-funded broadcasters. These broadcasting organisations can make an important contribution to pluralism, by producing programmes in areas that are unprofitable and therefore ignored by the private channels, such as children’s or minority language programmes. They can also promote the general public’s right to know, by presenting a credible platform of balanced and accessible news and current affairs, both through traditional and modern formats, such as TV news, documentaries, current affairs programmes and entertainment programmes. The often significant and stable sources of funds available to public service broadcasters enable them to attract respected journalists and conduct in-depth research for programmes. A key challenge is to ensure the independence of these broadcasters, and a terminological distinction is sometimes made between ‘State broadcasters’, which serve as a mouthpiece of government, and ‘public service broadcasters’ (PSBs), which genuinely serve the public interest. Another concern that may warrant attention is the potential of State-funded broadcasting to compete unfairly with private stations, threatening their commercial viability.
The regulation of PSBs presents four main questions: how to ensure independence from the government and business; what types of programming will be provided; how to fund it; and how to make it accountable to the public. These are addressed briefly in turn below.
Guaranteeing the independence of PSBs raises similar problems to those relating to broadcast regulators. The system’s governing body – usually a board of directors – can be appointed under a comparable procedure, ensuring that those elected to the body are independent, competent and free of political connections or financial interests in broadcasting.
The central considerations in the programming of the PSB should be how to serve the interest of the public as a whole. In this respect, PSBs are distinct from commercial broadcasters, whose main concern is to maximise their profits, and whose programming decisions therefore tend to be guided by the preferences of ‘mainstream’ viewers. PSBs should cater to all audiences, with special attention to minorities who are not served by commercial stations. Their programmes should offer impartial and balanced information, allowing viewers to form their own opinions on important topics based on the most accurate facts available. This is true especially of the news, which should cover both international and national developments, including the proceedings of key decision-making bodies such as parliament. Finally, an important function of PSBs is to increase social cohesion and respect for minorities while fostering a sense of national identity, by reporting on the country’s history and cultural diversity in a non-discriminatory manner.
Funding for PSBs can come from various sources, each with its own pros and cons. In some countries, the PSB is financed by a mandatory contribution paid by all owners of a radio or television set. Such an arrangement has the benefit of being relatively insulated from government interference and provides consistent levels of funding over time. On the other hand, it can also make owning a set unattractive for those with a small income, and the contribution can be difficult or expensive to collect. A PSB financed from the general government budget is a more simple solution which exempts the poor, but carries the risk of political interference in the service’s programming decisions. A recent development is the increasing use of commercial activities as an alternative to full public funding, mainly advertisements but also spin-off industries such as videos and books. Advertising can improve the financial situation of a PSB, but also carries a number of risks. More time for advertising means less time for quality programmes, and if advertising becomes a dominant source of income, PSBs risk starting to mimic the private sector, basing their programming choices on revenue generation rather than the public interest. At that point, the rationale for having a PSB ceases to exist. Moreover, PSBs may draw advertising away from private broadcasting, harming its viability or endangering its quality.
As organisations which spend large amounts of public money, it is important that PSBs are properly accountable. The public should be able to verify in which way the PSB has utilised public funds. One common and logical way of ensuring financial accountability is a duty for the PSB’s governing board to submit a public annual report, including an overview of its expenditures, as well as annually audited accounts, to parliament. Accountability for programming decisions and the content of broadcasts can be achieved by the adoption of a code of broadcasting practice, in consultation with journalists and civil society. The code should be accompanied by a procedure whereby members of the public can lodge complaints against programmes, which must then be assessed against the code
 Red Lion Broadcasting Co., Inc., et al. v. Federal Communications Commission, et al. No. 2, 395 U.S. 367, 389 (1969).
 ARTICLE 19’s publication Access to the Airwaves: Principles on Freedom of Expression and Broadcast Regulation provides guidance on these issues. To access this document, see the link in note 32.
 Informationsverein Lentia and others v. Austria, 28 October 1993, Application No. 13914/88 (European Court of Human Rights).
 Usually there will be a ‘higher level’ frequency plan which allocates the spectrum amongst various uses, such as mobile telephony, radar, emergency service radio and, of course, broadcasting.
 Morris Ernst, 1926.
 Recommendation (2000)23 of the Committee of Ministers to Member States on the Independence and Functions of Regulatory Authorities for the Broadcasting Sector, 20 December 2000. See also note 26.
 See note 136.
 ARTICLE 19’s Model Public Service Broadcasting Law provides a practical example of how these questions can be dealt with. To access this document, see the link in note 32.
 This goal is endorsed by Resolution No. 1: The Future of Public Service Broadcasting of the 4th Council of Europe Ministerial Conference on Mass Media Policy, Prague 1994. See also the link in note 26.