Transcript 'Public interest and broadcasting development: regulation

Is
self-
regulation
the
answer ?
Guy Berger
A tale from the tip of Africa
External regulation
SABC is an advert-financed PBS,
And it
reports to:
• Regulator: Icasa
• Board → Parliament
• Govt Department of Communications
(represents the state as shareholder)
External regulation
SABC
reports on compliance with:
• Charter (as set out in Act of parliament)
– freedom; reflect S. African views & languages
• Icasa’s Code of Conduct
– for all broadcasters
– deals with generic issues (eg. Watershed)
• Own Code of Practice (req’d by law)
– Editorial values, what SABC strives to do
SABC’s
self-regulation
• Part of a voluntary broadcasters council
(BCCSA) with own Code of Conduct
– Deals with individual complaints
• Editorial Policies since 2002
– With some monitoring & evaluation systems
Is it working?
• No: numerous stakeholders still wanted
extra external regulation. Why?
– To make SABC more of a distinctive PBS
– To limit its scope as a commercial competitor.
• Re-licensing by the Regulator in 2004
→ debate over further regulation for SABC.
Why re-licensing?
• Broadcasting Act 2002 said SABC stations to
be classified & operated as:
PBS - a public service wing, or
CBS - a commercial service wing.
(Policy: CBS to subsidise PBS; no reverse flow;
no licence fee income to CBS)
• 2004: SABC applied to Icasa to amend its
licenses for 18 radio & 3 TV services.
What SABC wanted
No new license conditions!
1. Unnecessary – already highly
regulated and self-regulated.
1. Illegal – because conditions would:
– Infringe free expression rights
– Usurp role of parliament-appointed Board
More conditions would also be…
3. Endangering
― Of delicate economic model which needed
flexibility in face of competition
4. Redundant
― SABC already doing good PBS
5. Globally exceptional
― Special nature of PBS internationally
As Icasa summed up SABC case:
“
We determine HOW we
meet obligations; you
determine WHETHER.
”
Commercial TV critics weigh in
e.tv (fta) in for the kill
• We have the more onerous obligations:
– Local content (45%); (SABC 3 = 35%)
– Only 12 mins ads an hour (SABC = no limits)
“
‘SABC wants self regulation to keep
unfair competition,
yet rest of industry is regulated’
“SABC is a virtual monopoly”
Licences should also ensure:
– Separated programme buying for PBS
and CBS
– No cross-promotion between PBS & CBS
– No cross-selling of adverts or anticompetitive discounting
– Repeats across channels may not count
towards local content quota
Lacunae in extant regulation:
• Broadcasting Act sets out only
general statements of principle
– not licence conditions;
• SABC Editorial policies = just broad
principles, no performance indicators.
Eg. “significant” number of education
programmes.
“Tie them up, pin’ em down!”
• Licence conditions must be measurable
and quantifiable to be enforced.
• Such conditions will make SABC deliver on
public services like 11 official languages.
• Conditions should spell out parity: same
detail conditions for SABC’s CBS TV as e.tv
• Ban “monopoly” practices.
Conditions determine quotas and not content
– therefore no free speech infringement.
Commercial radio adds kicks
Icasa can’t
abdicate its duty to
secure level playing field for
business.
Its role is to flesh out law into
substantive and enforceable detail.
Precise conditions are necessary for Icasa
to assess compliance with mandate
Civil society speaks
SABC seeks to:
– Undermine role of Icasa
– Evade accountability
Icasa must protect public
– therefore no free rein for SABC:
• Regulation must oblige Board to get government
funding
• Clarify distinction between CBS and PBS
– Can’t treat SABC as a single collective entity
• Parity needed with other broadcasters; indeed:
not just parity – but more obligations!
SABC rises from the floor
Critics “absurd”, “mischievous”
• Not seeking self-regulation – but
pointing out we are already regulated, and
even more so than others arguably.
• Obligations exceed private sector – and
make it hard for us to compete.
• We account via annual reports, dialogue
with parliament and the Regulator, and public
consultation.
• Charter “exacts from the SABC an extensive
range of detailed obligations.”
• ICASA is already obliged to:
– monitor & enforce compliance with Charter.
– scrutinise and review Editorial Policies
– enforce our Code of Practice
– ensure we comply with their Code of Conduct.
Re-licensing should not substitute
subservience by the SABC to the (apartheid)
government, with subservience to ICASA.
Business arguments
• Fair competition issue is extraneous to
re-licensing –needs sector-wide process.
• Ad limits are not a matter for re-licensing.
• “Any recommendation on limiting the
SABC revenue opportunities should be
approached cautiously given the
Corporation’s fragile revenue base.”
Devil and the detail
•“fallacy” that ICASA can only monitor
compliance if obligations reduced to
“a calculator and excel spreadsheet”
• ICASA is capable of translating broad
statutory obligations into tangible
form and of making a judgement
on whether a particular quantity or
percentage of programme material is
“significant”.
Regulator’s ruling
Power to regulate
• Role more than “rubberstamping”
SABC’s proposal.
• Legally empowered to impose conditions
“that are appropriate and necessary (in
the sense of being reasonably needed)”
in order to reflect SABC’s obligations.
•No violation of free expression.
• Silence on fair competition aspect.
Saints in the detail
• Conditions will help give
effect to SABC’s
obligations in respect of PBS and CBS.
Function is to:
•Translate law’s broad obligations –
“many …expressed in vague and aspirational
terms” – into more specific obligations.
• Provide “with reasonable certainty” sufficient
guidance to the people affected.
SABC TV tied to specifics
• Both PBS and CBS limited to 12
mins ads,
and both get many public service obligations.
• Main difference is new 80% language
obligations for PBS TV (10 tongues on two
channels).
Local content: 35% CBS; 55% PBS.
•No ban on CBS-PBS TV channels sharing
•
services, cross-promoting, content purchasing,
counting of repeats, and cross-advertising.
SABC radio pinned down
•public radio = many obligations:
news, children’s content and drama.
• SABC commercial radio really only
news.
• all stations can take unlimited ads.
SABC resigns itself to regulation
• Acceptance, but asks for more
“incremental” or “gradual”
approach to implementation.
• Repeats that conditions are potentially
damaging to the SABC’s future
stability and viability.
Assessment
Regulation results
Icasa rejected status quo of SABC regulation.
BUT with these new regulations:
• Commercial logic can still prevail even on PBS.
• SABC had said “invidious” model and yet
also claimed that status quo regulation had
provided flexibility to succeed in serving
audience as both citizens and consumers
• Icasa accepted basic economic model, but not
SABC’s claims of successful results.
Regulation’s contradictions
costs
• Re-regulation raises
but slightly
restricts previous opportunities for
income. (cf. 12 minute limit on TV ads)
more difficult
• So: life is
for SABC –
the bar has been raised for its PBS
performance … which in turn depends on
greater commercial results across all divisions.
An intrinsic tension
• Commercial model
points to:
– money-making rationale prevalent,
– competing for advertising,
– treating obligations as onerous.
bare minimum on local
And:
content or local language
– Rather than aiming for maximum PBS.
• So regulation exacerbates the stress.
Re-regulation ahead?
• CEO Dali Mpofu, appointed after the relicensing, wants a reassessment of its
commercialised funding model.
• It may be that unless there is change in
government policy, SABC will not be able
to meet all its licence conditions.
• Alternatively, it may be that ICASA will
either relax the conditions, or
accept less than full compliance.
Regulation rules … for now
• Today, SABC is required to make more
money to fulfil a much more measurable
public service, yet without compromising
that service!
• Self-regulation, and extant external
regulation, was not achieving this.
But: is the new external regulation an
answer to the lacunae of
SABC self-regulation? We’ll see.