The Digital Beat v.1 no.5

Gary Handman (ghandman@library.berkeley.edu)
Fri, 16 Apr 1999 08:31:30 -0700 (PDT)

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>The Digital Beat v.1 no.5
>
>PUBLIC INTEREST OBLIGATIONS IN BROADCASTING: INTERNATIONAL COMPARISONS
>
>By RICHARD SOMERSET-WARD, Benton Fellow
>
> Introduction
> Political Broadcasting
> Content Quotas
> Sanctions
> Public Hearings
> An Advisory Role for the Public
> Reliance on Public Broadcasting to fulfill the "Public Interest"
> Conclusion
>
>
>INTRODUCTION
>
>With the recommendations of a Presidential Advisory Committee delivered to
>the Vice President in 1998, the coming months will see review of the public
>interest obligations of broadcasters by the Federal Communications
>Commission and Congress. Although no other country has a comparable system
>of commercial or local broadcasting, there are occasional examples of
>international practice that have value when considering ways in which public
>interest obligations of American broadcasters can be better defined and
>enforced. In every instance, regulations arise from the same premise: that
>the spectrum is publicly owned, and that the broadcasters who get to use it,
>whether for profit or not-for-profit, have public interest obligations.
>
>In most countries, the legal and regulatory system for broadcasting was
>erected on the basis of a) non-commercial public broadcasting, with
>commercial stations being added later, and b) a national or regional system,
>rather than a local one. No other country, moreover, has a First Amendment
>-- one of whose (unpremeditated) consequences is to preclude the possibility
>of public interest or social responsibility in broadcasting acquiring the
>sort of quasi-constitutional/quasi-legal status it has in most other
countries.
>
>Public interest obligations are therefore embedded in these other systems
>much more deeply -- almost always beginning with the charter (e.g. the BBC's
>charter in the United Kingdom) or the legislation which established a
>national broadcasting organization (e.g. Germany and Japan, where ZDF and
>NHK respectively were created after World War II by occupying powers using
>the model of the UK). These national broadcasting organizations are publicly
>owned and not-for-profit, but they are not necessarily barred from taking
>advertising (e.g. CBC, ZDF, etc.). Subsequent legislation to add commercial
>broadcasting to the mix almost always accepted, implicitly or explicitly,
>the public interest ethos of the national broadcaster.
>
>In no other country, therefore, has the marketplace been given so much
>control over the nature and content of broadcasting as in the United States.
>
>It is perhaps unthinkable that the United States can, at this late stage,
>introduce legislation or regulatory controls of the breadth and scope used
>in other countries -- they would, no doubt, be challenged as
>unconstitutional. But it is worth noting that the debate over the public
>interest obligations of broadcasters is much more intense in most countries
>than it presently is in the United States. In Germany, for instance, where
>commercial broadcasting is a comparatively recent addition, it amounts
>almost to a national obsession. In Australia and Canada, where (for
>different reasons) commercial pressures on traditionally non-commercial
>systems have put great strain on broadcasting, it has become a political
>issue of considerable importance.
>
>In any case, there are valuable lessons to be learned from the approaches of
>other nation's to the challenges that exist here as well -- such as
>providing amble coverage of politics and elections. And there are also
>models that should be examined as we begin the age of digital television. To
>be considered are the roles of content quotas, sanctions, public
>participation, and the reliance on public television to fulfil the public
>interest.
>
>
>POLITICAL BROADCASTING
>
>Television advertising expenditures in political campaigns in the US
>increased 800% between 1970 and 1996 -- more than any other category of
>campaign finance. Candidates have turned to television advertising,
>especially on broadcast television, because in many areas, it is the best
>medium to reach voters. In a democracy that aspires to be deliberative,
>television can do a great deal if it deals with political issues in a
>serious way. Engagement with serious issues can be educative; it can
>increase citizen involvement in political issues; it can make citizens
>better able to choose.
>
>In most countries, public broadcasters have some sort of constitutional
>obligation to give free time to politicians -- certainly during election
>campaigns, very often at other times as well. In France, for instance, the
>two public service channels, France 2 and France 3, are required to transmit
>"twelve statements about a great national cause agreed annually by the
>government". Few other countries allow their governments so much latitude!
>The most sophisticated system is probably the British one -- and it is the
>most interesting to the United States because it is jointly operated by
>public and commercial broadcasters.
>
>Each year, broadcasters (radio and television, public and private) make a
>joint offer of free airtime to the principal political parties. Politicians
>have no statutory right to this airtime: it is essentially an offer made by
>the broadcasters, but it is traditionally "negotiated" with the politicians
>before being finalized. The extent of a party's inclusion in the offer is
>governed by the percentage of total votes cast for that party in the
>previous election (i.e. a system of proportional representation) with
>additional calculations made to ensure adequate representation for regional
>parties in areas such as Scotland, Wales, and Northern Ireland.
>
>In a non-election year, the principal parties can normally expect five
>broadcasts, each of five minutes, while smaller parties get less airtime.
>The scheduling of the broadcasts is at the discretion of the broadcasters,
>but an undertaking is given that they appear between 5:30pm and 11:30pm (all
>channels used to transmit them simultaneously, but this was so unpopular
>with the viewers that it was abolished a few years ago). The production
>costs are paid by the political parties, who also have editorial control.
>The content must observe the law of the land and be non-defamatory.
>Broadcasts may not include an appeal for funds, but they may urge viewers to
>become members of their party.
>
>During an election campaign (only about four weeks in Britain), the
>broadcasters make a special offer of time to the parties -- normally a
>year's allocation concentrated into the period of the campaign. The number
>of individual broadcasts is based on the same calculations as are applied in
>non-election years, but with additional time calculated by the number of
>candidates a party is fielding.
>
>In exchange for this broadcast time, neither political parties nor
>individual candidates are allowed to buy time for political advertising.
>
>Broadcasters are anxious to discontinue the grant of free time in
>non-election years, in view of the plethora of ways in which politicians can
>now reach voters (through the regular broadcasting of Parliament, for
>instance). But broadcasters remain committed to continue with the current
>arrangements during election campaigns, expanding them to give more emphasis
>to local and regional campaigns.
>
>The President's Advisory Committee on public interest obligations (know as
>PIAC) has recommended that if Congress undertakes comprehensive campaign
>finance reform, broadcasters should commit firmly to do their part to reform
>the role of television in campaigns. This could include repeal of the
>"lowest unit rate" requirement in exchange for free airtime for candidates,
>a broadcast bank to distribute money or vouchers for airtime, and shorter
>time periods of selling political airtime, among other changes. In addition,
>PIAC recommends, the television broadcasting industry should voluntarily
>provide 5 minutes each night for candidate-centered discourse in the 30 days
>before an election.
>
>A majority of the Committee went even further and made a strong
>recommendation for "free time" for national and local candidates for
>candidate-centered discourse. The majority recommendation sets the end of
>1999 as a deadline for Congress to address the issue -- and suggests the FCC
>take up the issue if it gets bogged down in the political process.
>
>
>CONTENT QUOTAS
>
>Quotas are not a popular method of regulating broadcasting. In most
>countries, voluntary codes of standards are preferred, but quotas are used
>when there are overriding concerns of national or public interest. These
>concerns almost always relate to cultural identity (as in Canada,
>Australia), language (as in France), and the protection of children.
>
>The Australian Broadcasting Authority (ABA), which regulates commercial
>broadcasting, is required by the Broadcasting Services Act of 1992 to
>develop program standards covering the areas of children's programming and
>Australian content. The ABA imposes a 'transmission quota' of 50% Australian
>content across all categories of programs broadcast between 6am and
>midnight. The system for determining what is and what is not "Australian" is
>complicated and is based on a computation of Australian content, the use of
>Australian personnel, a quality factor (expensive drama scores higher than
>other programming), and the number of hours. Even stricter quotas are laid
>down for advertising - 80% of all advertisements broadcast by a licensee
>must be produced in Australia or New Zealand.
>
>Children's Television Standards are also enforced by the ABA (children being
>defined as people under fourteen years of age): every station must broadcast
>at least 390 hours of children's programming a year, 50% of which must be
>first release. The quality of these programs is not prescribed, but their
>scheduling is -- stations have to notify the ABA of the times when
>children's programs will be broadcast and are prevented from broadcasting
>"unsuitable" material during the same time period. The Standards also limit
>the amount of advertising time allowed during children's programs, as well
>as the number of repetitions of the same advertisement, and they ensure that
>a clear distinction is made between what is programming and what is
>advertising.
>
>In Canada, the most highly regulated system among Western nations, the
>Canadian Radio-Television and Telecommunications Commission (CRTC) lays down
>content quotas governing Canadian content levels in drama, children's
>programming, and documentaries as a condition of license renewal.
>Broadcasters are required to maintain a 50% minimum level of Canadian
>content between the hours of 6pm and midnight. Most broadcasters (but not
>the CBC) interpret this as local news between 6 and 7pm, and low-cost
>Canadian programming between 11pm and midnight, thus enabling them to devote
>most of the heart of prime time to American programming. Nevertheless,
>statistics show that, since the mid-1980s, the amount of Canadian
>programming being made -- and its audience share -- have increased
>significantly.
>
>In France, a very different, and very specific, form of quotas is applied to
>France 2 (one of the two public service channels). The terms and conditions
>under which it operates state that each Sunday morning it must transmit
>"programs of a religious nature reflecting the main forms of worship
>practiced in France" (specifically, Catholicism, Protestantism, Judaism, and
>Islam). Moreover, France 2 is required to bear the cost of these programs,
>up to a stated maximum.
>
>In the US, the Children's Television Act of 1990 requires the FCC, in its
>review of each television broadcast license renewal application, to
>"consider the extent to which the licensee...has served the educational and
>informational needs of children through the licensee's overall programming,
>including programming specifically designed to serve such needs." Congress
>found that television has the power to teach children -- that "television
>can assist children to learn important information, skills, values, and
>behavior, while entertaining them and exciting their curiosity to learn
>about the world around them." Congress also found, however, that there are
>significant market disincentives for commercial broadcasters to air
>children's educational and informational programming. In 1996, the FCC
>adopted rules which instructed broadcasters to air at least 3 hours per week
>of educational children's programming.
>
>In the age of digital television -- when a single station can provide four
>to six video channels where it can now only provide one -- PIAC recommends
>multiplying broadcasters' public interest obligations by the additional
>number of channels they provide. The Committee also recommends the creation
>of new, noncommercial channels devoted to educational programming for all
ages.
>
>
>SANCTIONS
>
>In order to be effective, broadcasting supervision must have sanctions at
>its disposal, and those sanctions must be graded. When the only available
>sanction is withdrawal of license, there is a natural reluctance to use it.
>The most effective systems are those that range from verbal warnings via
>written admonitions, to the imposition of drastic financial penalties...to
>withdrawal of
>license.
>
>In France, operating licenses for commercial channels are issued for ten
>years, and they are issued free of charge. By the terms of a law passed in
>1994, they are then automatically renewed for two further terms of five
>years each -- unless the license holder has committed "serious misconduct"
>or has failed to maintain the required "pluralism" in its broadcasting. In
>theory, the operating license may be withdrawn or suspended at any time if
>the holder is deemed to have breached the obligations it agreed to in
>consultations with the regulatory body (the Conseil Superieur de
>l'Audiovisuel -- CSA) when the license was originally granted. But the only
>available sanctions -- withdrawal or suspension of license -- are generally
>deemed to be so drastic that there is very little chance of their being
>applied. The French system is thus not unlike the American one.
>
>In Italy, the system established by the 1990 Broadcasting Act gives the
>regulatory authority a range of sanctions -- fining stations for minor
>violations, suspending licenses for a maximum of 30 days, and proposing to
>the competent minister the actual revoking of a license in the most serious
>cases. Unfortunately, the regulatory authority, the Garente (guarantor) is a
>single individual, appointed for a period of only three years, and lacking
>sufficient staff or budget to be effective.
>
>In Britain, the 1990 Broadcasting Act authorized the Independent Television
>Commission (ITC), which is responsible for regulating commercial television,
>to award franchises to the highest bidders in separate auctions for each
>available franchise (16 of them). The ITC -- displaying a splendid disregard
>for the political intent of the Act, but still acting strictly within its
>terms -- decided that, before auctioning the franchises, it would impose a
>"quality threshold" on the bidders. Those unable to guarantee that they
>would broadcast programming of sufficient quality were denied the right to
>bid in the auction at all. Reaching the threshold required a potential
>bidder to guarantee at least 90 minutes a day of high quality current
>affairs programming, two hours a week of religious programming, and ten
>hours a week of children's television. Applicants also had to spell out in
>hours and minutes the amount of time they intended to devote to other areas
>(drama, sports, news, factual programming, education, the arts, etc.), and
>they were formally warned that, if successful, these specifics (as well as
>the business plan by which they were to be achieved) would be written into
>their licenses as binding obligations. Furthermore, the ITC insisted that it
>would review the performance of the new licensees at the end of the first
>year of their operation. It did so, in great detail, and published its
>findings. As a result, one company was formally warned that it was not
>meeting its license conditions, and that it was in imminent danger of losing
>its license. Over and above this licensing procedure, the ITC has
>periodically made "interventions" in response to violations of its program
>code - for example, it fined one company 500,000 pounds ($800,000) for
>giving "undue prominence" to commercial products in programs.
>
>The Telecommunications Act of 1996 modified previous statutory provisions in
>the US regarding license terms for broadcast stations. Prior to the Act,
>television broadcast licenses were for 5 years -- the Act extended them to
>eight years. The FCC also has the authority to fine stations for failing to
>comply with broadcast rules.
>
>
>PUBLIC HEARINGS
>
>There is a democratic argument that, since the spectrum is publicly owned
>and licensed in the "public interest, convenience, and necessity", the
>public has a right to scrutinize the way in which its spectrum is actually
>being used. Adequate scrutiny through the existing system of FCC renewal
>hearings is ineffectual. Even though such hearings are open to the public,
>they are almost always held in Washington -- rather than locally -- and
>there are so many renewals that the vast majority of them are virtually
>automatic ("postcard renewal"). The public's input is also limited around
>content areas. Stations are supposed to track viewers' comments on violent
>programming and FCC rules adopted concerning children's programming rely on
>parents to determine if shows are actually educational.
>
>It would be logical (in terms of democracy, at least) for all license
>holders, as part of an ascertainment process, to be required to hold a
>public meeting once a year, properly advertised and promoted, at which the
>station would account to the public for its stewardship of the airwaves and
>hear the public's views on whether or not it was fulfilling its public
>interest obligations. Public dissatisfaction could thus be brought to the
>attention of the licensing authority, the FCC.
>
>In Canada, voluntary codes of public interest obligations and broadcast
>ethics are given teeth by the ability of the Canadian Broadcast Standards
>Council (CBSC) to hear complaints, in public, when the voluntary codes are
>alleged to have been broken. The CBSC was established by the Canadian
>Association of Broadcasters (the industry association of commercial
>broadcasters) in order to hear public complaints of a station's abrogation
>of its own voluntary code of conduct. The CBSC's membership includes both
>broadcast industry and non-broadcast industry representatives -- i.e. it is
>not a closed professional clique of broadcasters.
>
>In Britain, the government is committed to the creation of a Broadcasting
>Consumers Council through the merger of two existing bodies - the
>Broadcasting Standards Council, which deals with complaints concerning the
>depiction of violence and sex, and lapses of taste and decency; and the
>Broadcasting Complaints Commission, which hears allegations by individuals
>or organizations who feel they have been unfairly treated, or
>misrepresented, in broadcast programs.
>
>In Australia, the Australian Broadcasting Authority (ABA), which regulates
>the commercial sector and makes licenses subject to social responsibility
>and content standards (including the areas of children's programming and
>Australian content), was given extensive powers in 1977 legislation to make
>broadcasters responsive to community needs. One of those powers was the
>ability to hold public hearings within a community to ascertain whether or
>not the broadcaster was fulfilling its obligations. Controversially, and as
>a result of commercial pressure, the Broadcasting Services Act of 1992
>withdrew this power and hearings are now conducted out of the public eye.
>
>In general, a worldwide survey will show that opportunities for public
>involvement in the monitoring and enforcement of broadcast standards are
>becoming fewer and weaker. This undoubtedly reflects the success of
>commercial broadcasters in lobbying governments to weaken all forms of
>oversight, especially oversight by the consumers themselves, the public, who
>own the airwaves.
>
>As part of the package of recommendations sent to Vice President Gore last
>year, PIAC suggested stronger disclosure rules for broadcasters so the
>public could track how their airwaves are used. Reports would be made to the
>public on a broadcasters' activity including, but not be limited to,
>contributions to political discourse, public service announcements,
>children's and educational programming, local programming, programming that
>meets the needs of underserved communities, and community-specific
>activities. The Committee also recommended that broadcasters distribute such
>public interest information more widely, perhaps through cooperation with
>local newspapers and/or local program guides so that viewers can more
>readily identify and evaluate the efforts local broadcasters are making to
>address their interests. Similarly, since many local television stations now
>maintain Internet websites, they could post this information there on a
>regular basis.
>
>Greater availability of relevant information will increase awareness and
>promote continuing dialogue between digital television broadcasters and
>their communities and provide an important self-audit to the broadcasters,
>the PIAC report reads.
>
>
>AN ADVISORY ROLE FOR THE PUBLIC
>
>Almost all democracies other than the United States offer the public (i.e.
>the non-broadcasting community) an advisory role in the governance of
>broadcasting. In some cases, particularly those with a centralized
>broadcasting system, this allows for public input in the overall regulation
>and ethos of national systems (e.g. Britain). In others, with a more
>localized system (though none of them are anything like so localized as in
>the United States), it allows for public representation in the direction of
>individual stations -- not as shareholders, but as outside advisors.
>
>In Britain, the Independent Television Commission (ITC), which regulates all
>forms of advertising-financed television, has ten affiliated advisory
>bodies. They represent different groups and interests within the population,
>and they are free (indeed, they are expected) to adopt critical attitudes
>towards the programming and program philosophies of individual television
>companies. The BBC has an equally elaborate structure of advisory committees
>-- carefully balanced by geography, gender, and ethnic and social
>backgrounds -- which are charged with providing a constant flow of
>information to the BBC's governing body on the needs and interests of
>audiences in all parts of the United Kingdom.
>
>In Japan, Article 3-4 of the Broadcast Law (as amended in 1998) requires
>that all broadcasting stations shall have a consultative organization "for
>the purpose of maintaining the appropriateness of broadcast programs."
>Stations are bound to consult with these bodies on any changes they propose
>making to their codes of standards, and they are bound to hear, and reply
>to, any views the consultative organizations may express about programming
>or program policies.
>
>In Italy, Article 28 of the 1990 Broadcasting Act established a Viewers'
>Council to advise the national regulatory authority (the Garante) on the
>interests of viewers and listeners. The Council has 18 members (ten of them
>selected by user associations, eight of them nominated by media experts,
>analysts and scholars) and has been active in helping broadcasters work out
>satisfactory guidelines in areas such as protection of children's rights, in
>denouncing misconduct by broadcasters, and in putting pressure on the
>Garante to take action in cases of misconduct.
>
>
>RELIANCE ON PUBLIC BROADCASTING TO FULFILL THE "PUBLIC INTEREST"
>
>The implicit (and sometimes explicit) basis for broadcasting in several
>countries is that a strong and reliable public broadcasting system can be
>used to fulfill the public interest obligations of all broadcasters - thus
>removing the need for too close supervision of commercial broadcasters.
>
>In February, 1994, the Federal Constitutional Court in Germany ruled that
>commercial broadcasting is only permissible if public broadcasting fulfills
>its basic functions. Public broadcasters, the Court said, are required to
>provide a broad spectrum of programs for society ("Grundversorgung"),
>whereas commercial broadcasters are necessarily governed by the marketplace
>and cannot be expected to deliver anything like so broad a spectrum of
>programming. This is acceptable, the Court concluded, provided the public
>broadcasters are doing their job, and (by implication) that they are
>adequately funded to do that job.
>
>A logical corollary to this philosophy is that public broadcasting should
>not compete for the same funding as commercial broadcasters. In Britain,
>Australia, Sweden and some other countries, public broadcasters are
>forbidden to take advertising. In Italy and France, on the other hand,
>public broadcasters rely heavily on advertising revenues: as a result, a
>brutal battle for advertisers has severely weakened the public broadcasters.
>In Canada, where CBC gets 25% of its revenues from advertising, and even has
>commercial affiliates, the conflict is less destructive.
>
>The United States has the worst of all worlds. Public broadcasting is
>severely underfunded and unable to provide "a broad spectrum of programs for
>society," while at the same time it is attempting to improve its funding
>base by infringing on commercial territory through "enhanced underwriting"
>and other stratagems that may eventually include actual advertising.
>
>PIAC urges Congress to consider ways to provide increased funding for public
>broadcasting in the digital era, and to create a trust fund to make such
>funding assured and permanent, and to move public broadcasting out of the
>whipsaw of the political arena. Many members suggested that funding
>mechanisms for support of noncommercial, public broadcasting should include
>fees paid by commercial broadcasters. In January, the Benton Foundation, the
>Project on Media Ownership, the Media Access Project, the Center for Media
>Education and the Civil Rights Forum released polling data
>(www.benton.org/Policy/TV/edtv.html) that points to strong public support
>for such a proposal. In fact, 79% of Americans support a requirement that
>broadcasters to pay 5% of their profits into a public broadcasting fund.
>
>
>CONCLUSION
>
>PIAC also recommended a voluntary "code of conduct" be written and adopted
>by the broadcast industry. Nearly four months after those recommendations
>were published, there has been no move by the industry to do so. If
>broadcasters will not take the lead in framing a new compact with the
>communities they are licensed to serve, the public will voice its demands to
>the FCC and to Congress.
>
>What programming services does a broadcast licensee owe its community?
>Should broadcasters make time available to candidates for free -- especially
>during elections -- as is the case in many other countries? Even though
>quotas are not a popular form of regulation, do national concerns regarding
>education, democracy, and children necessitate them?
>
>How can the public be given a greater role in determining if a broadcaster
>is actually using spectrum in the "public interest, convenience, and
>necessity?" Could local communities hold broadcasters accountable to their
>public interest obligations while reducing the burden of the FCC through a
>formal advisory role, a mandated ascertainment process, and public forums?
>
>Or would we rather rely on a strong and reliable public broadcasting system
>can to fulfill all the public interest obligations of all broadcasters -
>thus removing the need for close supervision of commercial broadcasters?
>
>As we address these questions in the months to come, it is worth our time to
>consider the way other countries do these things. Not all are appropriate
>for the US, but some of them may provide us with ideas (or the germs of
>ideas) that can be useful in the battle to get some sort of public interest
>obligations formalized in this country.
>
>----------------------------------------------------------------------------
>
>(c)Benton Foundation, 1999. Redistribution of this email publication -- both
>internally and externally -- is encouraged if it includes this message. This
>publication is available online at (www.benton.org/DigitalBeat).
>
>The Digital Beat is a free online news service of the Benton Foundation's
>Communications Policy & Practice program <www.benton.org/cpphome.html>
>funded by the Open Society Institute. Our aim is to equip you to be engaged
>in the public debate on the public interest in digital television and the
>Internet. We will chronicle the action at the Federal Communications
>Commission and in Congress, the efforts of public interest advocates, the
>work of nonprofit organizations and government agencies to create new public
>services, technology developments, and communications trends.
>
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Gary Handman
Director
Media Resources Center
Moffitt Library
UC Berkeley 94720-6000
http://www.lib.berkeley.edu/MRC

"Everything wants to become television" (James Ulmer -- Teletheory)