34
CHAPTER II: The Framework of Broadcasting Regulation
I. Trends in the 1990s
The aim of this chapter is to provide a general discussion of broadcasting regulation and thus
lay the ground for the analysis of policy documents relating to the regulation of public service
broadcasting in the analyzed countries. Normative issues concerning the media in general
have been over a long time decided in the political and judicial arenas and a wide range of
principles concerning the role of media is as a result reflected in policy documents at the
national level as well as in journalistic codes of practice produced by the media themselves
together with a
gradual extension of regulation and of the normative discourse to the international
level. In short, this body of material does provide an empirical basis for a normative
enquiry into the media, however diverse in form, ramifying and uncodified it may be.
We may expect to find the clearest expressions of the "public interest" and also the
clearest statements of fundamental values about communication from the point of
view of "society" in such material (McQuail, 1992b: 31).
Of concern are not only policy documents but the whole policy-making process with a variety
of actors who
make claims within a political system on behalf of goals (favoured end-states) which
are said, in the light of certain fundamental, or commonly held, values to be of general
benefit to the whole society, community or public, over and above individual wants,
satisfactions or utilities. These claims are specified in terms of preferences about
a communication system or its performances which correspond to the advocated endstate.
The specifications offered should indicate evaluative criteria for recognizing
whether or not preferred conditions are present or goals reached (ibid: 27).
It thus becomes clear and needs to be stressed from the beginning that the normative issues
with which this dissertation is concerned cannot be found in a systematic form and are not
confined to a particular government body, media organization or a civic sector actor. Rather,
they can be found in documents compiled by various committees and state organs, "other
sources are codes of media practice originating within the media themselves, statements of
public policy, or the actual requirements of performance entered in laws, regulations or
similar instruments of public policy" (ibid.: 33).
35
Detailed case studies of public service broadcasting policy in the European Union,
Czech and Slovak Republics and Ireland are discussed in Chapters 3 to 5. The policy analysis
provided in these chapters takes into account legislative developments based not only on final
acts but also on bills at various stages of the legislative process e.g. as drafts, amended drafts
etc. Attention is also paid to policy documents and decisions arrived at by various bodies
active in the field of broadcasting, such as parliamentary committees, broadcasting councils
and similar. The current chapter aims at discussing key issues related to the policy making
process in general. However, media policies should be viewed within a larger framework of
trends within media regulatory practices (in this respect the trend-setters clearly are the USA1
and Great Britain) as well as the questions of media regulatory aims, justifications and
techniques. The following addresses these in more general and draws in particular on the
developments in the 1990s in the Anglo-American context.
There appears to be general agreement that the major trend during the last two decades
within broadcasting regulation (but not restricted to it) has been towards deregulation, for
example, McQuail (1992b: 143) identifies "a more general 'liberalizing' and deregulation
political-economic trend in Europe". Murdock (2004) argues that the marketization of
broadcasting was promoted by liberalization which
has introduced competition into broadcast markets that were previously either public
monopolies (as in most western European countries) or duopolies with strong public
service regulation, as in Britain. ... As well as massively enlarging their sphere of
action private television interests also succeeded in winning more space for manoeuvre
by pressing for the rules governing ownership and advertising to be relaxed and
getting the underlying purpose of regulation redefined.
Liberalization was combined with deregulation which implies a minimalist regulatory
approach on the part of the state as well as increased stress on self-regulation. This trend has
been widely explored (see e.g. Murdock, 1990 and McChesney,2004) and claims have been
made to a major shift in the policy rationale, moreover, the change has been characterised as
a move away from regulation in the public interest to regulation in corporate interest, a shift
from citizen-oriented to consumer-oriented regulation. Another important issue is the
prevalence of regulation after the event rather than pro-active regulation.2
In Feintuck's words
1
In this respect I agree with Calabrese, "of course, there is a vitally important global dimension to all of this, in
that for many years the US has served as both the model and, when models fail, the primary source of political
and economic pressure, to get the rest of the world to fall into line with its media policy frameworks" (2004:
112).
2
In relation to British broadcasting regulation Graham Murdock pointed out that "what has been relinquished is
regulation which is pro-active and aims to create a communications environment that honours certain public
obligations to open debate and diversity of opinions" (Metykova, 2003).
36
deregulation results in "accepting and legitimising market trends rather than establishing
positive targets for regulation" (1999:164).
The effect of deregulation was to be overwhelming, as McChesney notes in his
commentary, "according to conventional wisdom the effect has been rapid commercial
development of spectacular new technologies, more competitive markets that 'give the people
what they want', plus a tremendous spur to economic growth in the information age" (2003:
125). McChesney, however, goes on to argue that this is far from the truth. According to him,
the claim that media deregulation is necessary and serves the interests of the society as
a whole has three parts, first, it claims that the market - even if highly concentrated - is the
best to regulate media, second, deregulation is inevitable and third, new technologies make
"old" public interest justifications obsolete (ibid.: 129). These arguments are recurrent in
writing on media regulation and broadcasting systems. Some of them I have already dealt
with in the previous chapter, to others I return in the course of this chapter.
Much of the discussion on the role of media in society and the ways of ensuring these
roles has been formed around the dichotomy of free market versus state, in the case of
regulation of deregulation versus government regulation. This dichotomy though leads to
a deadlock and is based on the false premise that the free market involves no state
intervention, as McChesney argues "all media systems are the result of explicit government
policies, subsidies, grants of rights and regulations. ... Indeed, to have anything close to
competitive markets in media requires extensive government regulation in the form of
ownership limits and myriad other policies" (2003: 126). Similarly, McKenna (2000) stresses
that deregulation does not indicate that regulatory pro-competitive provisions are not
incorporated in broadcasting regulation. Murdock (1997: 12-13) points out that deregulation
is a misnomer,
what is at stake is not so much the number of rules but the shift in their overall
rationale, away from a defence of the public interest (however that was conceived) and
towards the promotion of corporate interests. Communications corporations benefit
from this shift at two levels. They not only gain from changes to the general laws
governing corporate activity in areas such as trade-union rights but, more importantly,
they have also gained considerably from the relaxation of the additional rules designed
to prevent undue concentration in the market-place of ideas and to ensure diversity of
expression.
I consider it important to illustrate what some aspects of deregulation involve with
concrete examples. The US 1996 Telecommunications Act and its implementation provide
a very telling example of what deregulation of media ownership can involve. According to
37
McChesney (2003: 128) the Act most directly affected US radio3
as it changed the restriction
on the ownership of radio stations (prior to the 1996 Act a single company could own 28
stations nationally and 4 in a single community) by completely removing the restriction on the
number of national radio stations owned by a single firm and increasing the number of those
owned in a community to 8. "Since 1996 well over half of US stations have been sold, and
a stunning consolidation has hit the industry. One firm, Clear Channel, now owns nearly
1,200 stations. Every market is dominated by two to three firms that own nearly all the
stations between them" (McChesney, 2003: 129). What McChesney finds worrying about this
concentration of radio ownership is the decrease in the diversity of radio content as well as in
the diversity of voices presented on the radio as well as increased commercialization. Another
change in the rules applied by the US Federal Communications Commission was announced
on 2 June 2003. A 20-month review of its media ownership policy was to determine whether
its broadcast ownership rules were "necessary in the public interest as the result of
competition"4
(www.fcc.gov/ownership). Following the review the FCC "revised the local
television multiple ownership rule; modified the local radio ownership rule by revising the
local radio market definition; raised the national television ownership limit from 35% to 45%;
retained the dual network rule and developed a single set of cross-media limits to replace both
the radio/television cross-ownership rule and the newspaper/broadcast cross-ownership rule"
(ibid.). The new rules have not been implemented yet at the time of writing (early 2005) as
the decision was appealed against in various federal appellate courts.5
Another characteristic feature of recent developments in broadcasting regulation is
increased reliance on self-regulation. Self-regulatory authorities are usually set up by the
industry itself, however, their establishment can be supervised by a government body. A report
on self-regulation prepared by the Programme in Comparative Media at Oxford University6
deals in detail with aspects of self-regulation in print media, broadcasting, film industry,
electronic game industry and the Internet. The authors of the report identified the following
3
In this respect see also McKenna (2000 : 103), among other significant changes he lists the following: "section
202 eliminates total TV station ownership limits per se and raises former limits on national audience totals from
25 to 35 per cent. The Act also formalized the position whereby existing TV station owners' licences were
renewed as of right."
4
Cooper (2003: 111) argues that during the review of media ownership rules FCC attempted to prove that there
is substitutability between media - this is crucial also in respect of the entire deregulation argument - FCC's own
data show that there is very little substitutability between media either for viewers as a source of information
gathering or for advertisers as a source of information dissemination
5
In this respect see also Cooper (2003) for a detailed qualitative and quantitative market analysis which
demonstrates that the FCC should maintain structural limits on media ownership.
6
"Self-Regulation of Digital Media Converging on the Internet: Industry Codes of Conduct in Sectoral
Analysis" (further "Self-regulation ....") accessible at http://www.self-regulation.info.
38
reasons for setting up self-regulatory codes: to provide an alternative to direct statutory
regulation; to prevent direct statutory regulation by the state; to build public trust/consumer
confidence; to avoid legal or user-perceived liability; to protect children and other consumers;
to exert moral pressure on those who would otherwise behave "unprofessionally"; to reinforce
the competitive advantage of a group of industry players; to mark professional status and to
raise the public image of the given industry (ibid., 17-18). In relation to broadcasting, selfregulation
is most evident in the case of public service broadcasters who establish internal
bodies that self-regulate and self-monitor them. However, there are also self-regulatory bodies
that deal with commercial broadcasters. For example, in the area of broadcasting and the
protection of minors, Germany probably provides the most striking example. In 1993 the
major German commercial broadcasters founded Freiwillige Selbstkontrolle Fernsehen
(Voluntary Television Review Body) which was to ensure that commercial broadcasters
complied with child protection that exceeded normal legal stipulations. They use the
mechanism of pre-publication review when a review panel of 5 to 7 people examines a
broadcast and makes a decision about it (taking into account how the broadcasters intend to
broadcast it, e.g. the timing etc.). The decisions made by FSF are compulsory (for more detail
see www.fsf.de or "Self-regulation ...").
Another area that is related to broadcasting and is often self-regulated is advertising.
To use an example from Eastern Europe, we can mention the Czech Council for Advertising
(for more detail see www.rpr.cz) which was set up in 1994 by the industry to self-regulate
advertising in all media, its structure was based on that of the British Advertising Standards
Authority (ASA).7
The Council is mainly involved in handling complaints relating to
advertising, its powers are rather limited as it can only make recommendations to change an
advert or to stop using it. Upon request the Council prepares analyses for government
agencies in relation to the implementation of the Act on Advertising. There is, however, a
statutory body in the Czech Republic that deals with advertising and sponsorship in relation to
radio and television broadcasting - the Czech Council for Radio and Television Broadcasting
(does so on the basis of Act no. 40/1995 Coll. on the regulation of advertising). In the case of
Slovakia the statutory organs that supervise compliance With Act no. 147/2001 Coll. on
Advertising are the State Veterinary and Food Administration of the Slovak Republic, the
State Institute for Drug Control, the State Institute for Veterinary Drug Control and the Slovak
7
In this respect it is interesting to point out that ASA regulated non-broadcast advertising, it was only on 1
November 2004 that the Office for Communications in an attempt to deregulate broadcast advertising contracted
out its regulation to ASA (see www.asa.org.uk and www.ofcom.org.uk).
39
Retail Inspection Office. The Council of the Slovak Republic for Broadcasting and
Retransmission is empowered to impose fines in case of a breach of legal stipulations related
to advertising and teleshopping.
There are a number of questions that arise in relation to the accountability,
transparency and efficiency of self-regulatory bodies. The question always is to what extent
the interests of the industry overlap with the interests of consumers, respectively citizens, and
to whom the self-regulatory bodies are made accountable. In terms of efficiency it is possible
to provide a number of examples that illustrate how limited and driven by industry interests
self-regulation can be. Let us look at the example of the British self-regulatory press body
(although press is not of major concern for my analysis, nonetheless, it is more self-regulated
than audiovisual media thus I consider it important to at least make a passing reference to it).
The Press Complaints Commission was set up in 2001 following a government report on its
self-regulatory predecessor the Press Council. The report of the Calcutt committee
recommended the introduction of privacy laws and the replacement of the Press Council by a
statutory regulator. The industry reacted by establishing the Press Complaints Commission.
Chris Frost (2004) analyzed complaints handled by PCC during the first ten years of its
existence to show whether the commission works effectively in obliging newspapers to
behave more responsibly (PCC obviously claims that this is what it achieved). Already the
fact that PCC received more than 20,000 complaints in those ten years and adjudicated only
707 and upheld 321 of them is telling. However, Frost is not interested only in statistics,
rather he looks at various areas that the complaints related to and shows that PCC's record is
particularly poor in regulating complaints about discrimination, during the ten years that Frost
analyzed only 6 complaints were upheld.8
The reasons behind this have to do with PCC's
code itself as the Commission decided not to take complaints from third parties thus only
those named in an article could complain. This approach was criticized even by the UK
Culture, Media and Sport Select Committee.9
Thus if a government is to transfer some areas from its regulation to self-regulatory
bodies there are a number of issues to be taken into account. In this respect the example of the
British Office for Communications is interesting, it created a set of criteria that will be taken
into account when transferring regulatory functions to self-regulatory ones. Ofcom will
This is particularly striking as solely in relation to the coverage of Euro96 PCC received 306 complaints about
the allegedly racist depiction of the German team once England was drawn to play it.
9
See House of Commons Culture, Media and Sport Committee, "Privacy and Media Intrusion", accessed from:
http://wwT
w.parliament.the-stationery-office.co.uk/pa/cm200203/cmselect/cmcumeds/458/458.pdf.
40
sanction the change in case self-regulation is beneficial to consumers; works with a clear
division of responsibilities between co-regulator and Ofcom; is accessible to the public; no
interference from interested parties; adequately funded and staffed; near universal
participation; effective and credible sanctions; provide auditing and review by Ofcom;
publicly accountable10
; consistent with similar regulation and have an independent appeals
mechanism (for more detail see www.ofcom.org.uk). Yet, at the authors of "Self-regulation
..." point out:
Most attention to self-regulation and its accreditation by statutory bodies or
government departments has focused on the issues of effectiveness, transparency and
sanctions, i.e. with features of the self-regulatory institution and code. These aspects of
the self-regulatory regime remain very relevant, but accreditation must also involve
other dimensions such as financial sustainability, implications for speech freedoms
and the structure of interests of the industry sector. If criteria such as those recently
outlined in the U K by Ofcom are to justify a shift to self-regulation there must also be
some reflection on the nature of the public policy objectives concerned, and whether
they are likely to be coterminous with the aims of the industry itself ("Self-regulation
...",86).
II. Contexts
Before turning to the general outline of regulatory issues and mechanisms it is necessary to
point out three influences on the regulatory framework that need to be born in mind
throughout the argument: historical developments, technological improvements and the
international context. The rationales, or justifications, for broadcasting regulation as well as
regulatory techniques and bodies have evolved historically, reflecting technological as well as
socio-political and cultural developments. It has been claimed that the oldest justification for
broadcasting regulation in the public interest has been spectrum scarcity (see Feintuck 1999:
24). As it has been already mentioned, due to the limited nature of the broadcasting spectrum,
it was to be treated as a public asset. The development of broadcasting systems went in
different directions in Great Britain (and in more general in Western Europe) and in the
United States.11
The basic difference was the establishing of public service broadcasting,
based not only on the understanding of the spectrum as a public good but also a series of
philosophical and political arguments (among them the need to have a channel that provides
information for citizens and a forum for discussion which enables full participation in the
political process).
On the issue of media accountability and responsibility in relation to market mechanisms and government
regulation see also Bardoel and d'Haenens (2004).
1 1
See e.g. Briggs (1995, vol. 1), Barnouw (1962, vol. 1), Engelman (1996), Scannel and Cardiff (1991, vol. 1).
41
Off-air broadcasting has always been classified as a public good in the lexicon of
economics, since unlike a commodity such as a cinema seat, access is potentially
universal and everyone can enjoy it at the same time without interfering with anyone
else. As we have seen however, from the outset public broadcasting was also thought
out of as a "public good" in a more general, philosophical sense, as an activity that
aimed to contribute to the quality of communal life and the development of democratic
culture. Although other publicly funded institutions shared this ideal the limits
imposed on them by space and location prevented them from matching broadcasting's
universality (Murdock 2004).
It is almost a cliche to repeat the three imperatives that public service broadcasting was to
fulfil according to the British Broadcasting Corporation's first Director General John Reith: to
educate, inform and entertain the nation irrespective of commercial and political pressures. It
has been pointed out that in the case of the United States a "strongly commercial, advertising
funded model of broadcasting was established from its earliest days" (Feintuck 1999: 166; see
also McKenna 2000). Robert McChesney (2004), on the other hand, argues that it was not
clear from the very beginning that the commercial model would succeed. He points out that at
the beginning there existed non-profit radio broadcasting and the realization that profit can be
generated from establishing national chains of stations that were supported by the sale of
advertising was gradual.12
Closely linked to the broadcasting systems and the justification for their introduction is
the system of supervisory and regulatory bodies. In the British case (as well as in other
Western European countries) the system of public service broadcasting had a monopoly until
commercial broadcasting was established and thus dual systems were introduced (e.g. in
Britain in 1955, in the Netherlands in 1990 within the EU15 the only exception is
Luxembourg which never had a public service broadcasting system). In general public service
13
broadcasters tend to be regulated separately from commercial ones, in the case of France
and Italy, for example, the regulator for commercial channels has some limited competencies
related to public service broadcasting (see "Self-regulation ...", 29), in the United Kingdom
the public service broadcaster - the British Broadcasting Corporation (BBC) - is regulated by
1 2
McChesney (2004) traces developments between 1927 when the provisional Federal Radio Commission was
established (and the 1927 Radio Act was passed) and 1934 when the Federal Communications Commission was
established as a permanent regulatory body that took on board the views represented by the National Association
of Broadcasters, the commercial broadcasters' lobby organization.
1 3
In this connection it is worth mentioning that another field crucial to broadcasting is that of
telecommunications which tended to be regulated separately, e.g. in the British case by the Office for
Telecommunications (OFTEL), however, this was not the case in the USA where telecommunications have also
been regulated by the Federal Communications Commission. Another point that must be clarified and which will
be dealt with in more detail is that in the 1990s some of the regulatory and supervisory bodies that previously
regulated various media or various fields linked with communication were merged into a single body under the
justification of converging technologies.
42
twelve governors (the Board of Governors) who act as trustees of the public interest, they are
appointed by the Queen on advice from ministers.14
On the other hand, until recently UK
commercial broadcasting was regulated by the Independent Television Commission15
(ITC)
which also ensured that commercial broadcasters complied with certain public interest
requirements which were stipulated when they were given their licences.16
The case of the
United States is, though, radically different, as I have already hinted, the Federal
Communications Commission was established in 1934 to regulate all communication systems
within the United States.17
One of the attempts to ensure that US broadcasters fulfilled certain
obligations to the public was the setting up of the fairness doctrine, in which the Federal
Communications Commission required licence holders to serve local community interests,
produce and broadcast news and current affairs programming and programmes for children.
However, in 1987 the FCC stopped enforcing most of its own recommendations.18
Another
aspect that is reflected in the evolution of supervisory and regulatory bodies is transparency
and accountability (and in the case of public service broadcasters accountability to the public).
As I have already suggested in the previous chapter when briefly describing different public
service broadcasting systems all of them include provision and mechanisms that are
implemented to represent the public interest, to secure the independence of the public service
broadcaster/s from political and economic pressures.
During the last few decades a number of changes in regulatory practices as well as
regulatory bodies were justified by technological convergence. Technological advances, in
particular digitalisation, enable the integration of formerly different forms of communication,
such as telecommunications, broadcasting and information technologies. Convergence does
1 4
The question of public service regulation is not specifically the subject of this chapter, yet I consider it
important to stress that in the case of public service broadcasting the regulatory framework can be viewed as
self-regulatory yet one should bear in mind Nitsche's point: "although on its face public service broadcasting
employs self-regulatory measures..., it is plain that the proximity to official authorities is very close. One can
argue about whether this can, in fact, be qualified as self-regulation" (2001 : 34)
1 5
Its role was taken over by the Office for Communications (OFCOM) on 18 December 2003, see section on
technological convergence.
Let us consider the example of Channel 4. The Channel 4 licence specifies minimum hours per week of
mandatory programmes which include: high quality news (minimum 4 hours excluding breakfast news),
educational programmes (minimum 7 hours), schools programmes (at least 330 hours per year) and religious
programmes (minimum 1 hour per week though this is not a mandatory category). Importantly, Channel 4 is also
bound to provide S4C (the Welsh fourth programme) with programmes free of charge (for further details see The
Broadcasting Act 1990 and ITC (now OFCOM) documents available at www.ofcom.org.uk)
1 7
"The Commissioners of the FCC are appointed by the US President subject to Senate approval, with the FCC
dependent upon Congressional funding. Its actions can be overruled by Congressional legislation, thus the
Commissioners have traditionally been sensitive to the wishes of Congress" (McKenna, 2000: 100).
1 8
McKenna (2000: 101) refers to an argument made by S. Miller who points out that despite its progressive
mandate the Federal Communications Commission tends to support the views of the industry players rather than
those of the consumers, in the 1980s, for example, the FCC rules that the inclusion of home shopping
programmes satisfied the TV stations' public service requirement.
43
not only blur the distinction among various forms of communication but also among
services.19
To make this issue more concrete we can look at the example of fibre optic cable,
which "offers the potential for the delivery to individual households of television and radio,
networked computer facilities, interactive services such as home banking, shopping and video
on demand, combined with telecommunications (telephone and fax) facilities. Indeed, the
ultimate potential of digitalisation, allowing the transfer of all such material down a single
line, seems almost boundless" (Feintuck 1999: 23). Under these circumstances significant
questions are raised regarding the regulatory framework, Drucker and Gumpert (2000: 48)
summarize them in the following way: "Does the existence of different regulatory authorities
responsible for different aspects of telecommunications, media and IT [information
technologies] activities offer a workable structure for regulatory supervision in the light of
convergence or does convergence require a reassessment of regulatory responsibilities at
a national or international level, and if so, in which areas?" Different governments deal with
these questions differently. Yet, if we accept the fact that the United States and the United
Kingdom are trendsetters then it is worth noting that in 2003 the UK Office of
Communications was established and it replaced five regulators - the Broadcasting Standards
Commission, the Independent Television Commission, the Office for Telecommunications,
the Radio Authority and the Radiocommunications Agency.
In the previous chapter I touched upon the question of the importance of regulation in
the public interest in the digital age in relation to public service broadcasting. I argued that
digitalisation does not make regulation obsolete and that indeed it might make it even more
necessary. Here I provide a broader look at the question using a line of argumentation that
was developed by McKenna (2000). Even if we adopt a strictly pro-market approach that
argues that deregulation and technological convergence bring better services (often what is
meant is actually cheaper services) to consumers the question is problematic. So far
deregulation has not completely blurred the distinction among television, telephone and
internet services so consumers are able to compare prices and the services on offer within the
individual sectors thus
1 9
In this respect Cooper (2003) makes an important: advocates of convergence tend to equate all media while in
fact distinct products are involved that are oriented at different geographic markets - both in terms of the
commercial marketplace and the forum for democratic discourse
44
competition can be seen in the short run at least as providing lower prices for
consumers. ... However, two important factors must be borne in mind, first true
competition can only be judged when the competing products can be viewed on a like
for like basis, which is so often not the case, and second, with the different services
now able to be transmitted over the same medium, very shortly the companies that are
able to, will offer a complete range of communication services, and this is when we
may discover the true nature of competition within the industry and the real winners
and losers from the convergence revolution. (2000: 109)
McKenna goes on to speculate about the nature of these "bundled" services. The provision of
packages of services may make it unprofitable to provide separate services although there
might be demand for them. "People who cannot afford such packages may find that Internet
access is available on a subscription only basis and lack of competition in the telephone only
business will have forced call charges up. Therefore in the deregulated world, open
competition may actually reduce choice and diversity for poorer people" (ibid.: 110). Another
example of what might be at stake in the deregulated digital world is connected with the
provision of access through an electronic gateway which is a conditional system for digital
television. Obviously the regulation of control over the gateway will be of crucial importance.
When dealing with broadcasting regulation it is also important to bear in mind that
apart from strictly broadcasting legislation there might be other laws as well that need to be
taken into account. Stipulations related to broadcasting regulation can often be found in the
country's constitution (e.g. provisions guaranteeing freedom of speech such as the First
Amendment to the US Constitution) as well as in competition law. In some cases it is also
judiciary decisions that greatly influence the shape and scope of broadcasting regulation. For
example, in the case of the United States the Supreme Court interpreted media regulation in
constitutional terms and ruled that media content intervention is illegitimate thus making
legislators use structural interventions (see e.g. Feintuck, ibid.: 169). The role of competition
law in broadcasting regulation has played a crucial role, I deal with it in more detail in the
section on regulatory justifications. Specifically related to public service broadcasting are
stipulations on state aid.
Some understand technological convergence as a development that calls for the
increased application of competition law in all areas and the concurrent abandonment of
sector specific regulation, as Drucker and Gumpert (2000: 48) point out" 'technological
convergence' quickly leads to the consideration of'market convergence' which immediately
suggests 'regulatory convergence'" and leads to the introduction of competition law. They go
on to warn that
45
the development of convergent technology should not be entirely controlled by free
market forces, because there is little room for the participation of community members
in any sense other than as consumers. We believe that the current path shifts the
emphasis from communities of place to virtual communities, where entertainment and
commerce are divorced from obligation, and technological and commercial
convergence leads to regulatory convergence divorced from locality (ibid.: 51).
Another dimension that needs to be kept in mind in relation to broadcasting regulation
is its international dimension as (even national) regulatory activity is not confined to single
states and is developed on the basis of international agreements within organizations such as
the European Union, the United Nations and the World Trade Organization. As Drucker and
Gumpert point out, "an organisational structure based on an exclusive view, focusing on the
regulation of a medium is antiquated, and single-issue international agreements (e.g.,
copyright) are too limited to be effective. All regulatory schema must allow for domestic,
regional, and transnational community citizen participation" (2000: 51). It is not only
membership in transnational organizations and the requirements that it involves in relation to
broadcasting policy at the national level but also the practical need to consolidate steps at
international level. For example, the introduction of digital terrestrial television requires coordination
of frequencies at the national as well as European level. Due to the above
mentioned reasons and the fact that all the analyzed countries are members of the European
Union the following chapter provides a detailed discussion of E U broadcasting regulation.
III. Regulatory justifications
Once outlining the larger framework of broadcasting regulation I can now move to
a discussion of justifications underlying such regulation. Feintuck (1999: 43-48) explores four
justifications for contemporary broadcasting regulation. First, regulation is justified on the
grounds of enabling effective communication. This notion is closely related to the freedom of
speech ideal, as reflected, for example, in the First Amendment to the US Constitution or in
Article 10 of the "European Convention on Human Rights". Feintuck points out that effective
communication implies both unobstructed as well as diverse communication. McQuail
(1992b: 69) argues that freedom related to communication is understood as a crucial
individual right, yet it has undeniable and concrete benefits to society and its members. "As
a condition of media structure, freedom calls not only for the absence of a legally imposed
licensing or censorship mechanism, but a degree of independence (which must actually be
exercised in order to count) from the main kinds of pressure and constraint encountered in
public life." Very rightly McQuail reminds us that the notion of freedom in communication
46
also involves economic freedom, a question to which I return later in more detail. In respect
of freedom in communication McQuail proposes the following framework that needs to be
taken into account in the exploration of this topic:
structural conditions (legal freedom to publish); operating conditions (real
independence from economic and political pressures and relative autonomy for
journalists and other "communicators" within media organizations); opportunities for
"voices" in society to gain access to channels; benefits of quality of provision for
"receivers", according to criteria of relevance, diversity, reliability, interest, originality
and personal satisfaction (ibid: 70).
It is clear from the above that closely related to freedom of communication is
diversity, which Feintuck identifies as the second ground for justification of broadcasting
regulation. Feintuck relates diversity specifically to political debate and cultural identities.
This division might seem somewhat restrictive, yet it reflects the framework in which policy
makers tend to view diversity. It is, however, helpful to deal with the question of diversity in
media/communication in more detail due to its complexity as well as to the fact that it is very
closely related to the conceptualization of public service broadcasting (and public sphere), as
Hoffman-Riem (as quoted in McQuail, 1992b: 142) points out in relation to broadcasting
arrangements in Europe: "The public service philosophy of broadcasting ... is oriented
towards the accessibility of pluralistic information for citizens and society rather than the
freedom of communicators. Diversity of program content, accessible to all segments of the
audience must be established and safeguarded." According to McQuail diversity "reflects an
attempt to make a virtue out of a necessity brought on by modernity, but it also signals
resistance to some of the new unifying (and fragmenting) forces of economic power,
technology and bureaucracy" (1992b: 141) and there is "a wide agreement that pluralistic
mass media can contribute to diversity in three main ways: by reflecting differences in
society; by giving access to different points of view and by offering a wide range of choice'"
(ibid.: 144, original emphasis).20
In multicultural, respectively multilingual, societies language also presents an issue
that is reflected in broadcasting policy. Although Feintuck does not deal with language as an
2 0
McQuail goes on to distinguish three standards of diversity for the assessment of media performance, diversity
as reflection, as access and finally as more channels and choice for the audience. In respect of the first standard
McQuail uses the principle of representation as developed by Jacklin according to which "there is representative
diversity when the structure of 'diversity' in communications corresponds to the structure of diversity in society"
(ibid., 144). The second standard (diversity as access) refers to access to "channels" (made available by media)
which various "voices" (i.e. groups and interests of which the society comprises) have. The most essential
preconditions for access to these "channels", as McQuail rightly stresses, are "freedom to speak out; effective
opportunity to speak (there being a sufficient number of independent and different channels); autonomy, or
47
issue in relation to diversity as justification of media policies I consider it important to point
out this specific aspect of ethnic/cultural identity as the countries whose media policies I deal
with all handle the question of languages of broadcasting in one way or another in their policy
documents.21
Understandably, language and language maintenance are of key importance in
particular for minority populations. A number of convincing arguments have been developed
in relation to the role of language maintenance for minority populations. De Varennes (1996),
for example, lists six areas in which minority language protection is absolutely vital for the
maintenance of a language. It is not surprising that these areas include education, institutions,
names and toponomy, script prohibition, media and publications and the use of minority
languages at home and in public (emphasis added). Kymlicka (1995) makes a similar point
when he argues that "one of the most important determinants of whether a culture survives is
whether its language is the language of government - i.e. the language of public schooling,
courts, legislatures, welfare agencies, health services etc." (Kymlicka, 1995: 111). Doubtless,
media play a prominent role as agents of public communication.
An important issue in relation to diversity is, as Feintuck (1999: 46) rightly stresses,
the potential tension between this principle and interventions premised on the protection of
consumers (in particular minors, relating to sexually explicit and violent material). Such
interventions also relate to freedom of communication and are often made in the name of
public interest. This type of intervention is, however, different from interventions made in
order to ensure the maximum competitiveness of a given market (for example, provisions
regarding media ownership that attempt to prevent undue concentration). The definition of
intervention in the interest of consumers, respectively citizens, can be a problematic one. In
some cases such an intervention is by media organizations understood as breaching freedom
of speech or the right of the public to crucial information. These issues are by no means
restricted only to totalitarian countries, an example of censorship in a democratic country
involves the United Kingdom. Probably the most serious and long-lasting intervention in this
sense involves the Northern Ireland Notice. On 19 October 1988 the then Secretary of State
Douglas Hurd introduced a notice under clause 13(4) of the BBC Licence and Agreement and
section 29(3) of the Broadcasting Act 1981 which prohibited the broadcasting of direct
statements by representatives or supporters of eleven Irish political and military organisations
adequate self-control over media access opportunities" (ibid.: 145). The last standard simply refers to the choice
that consumers have at their disposal, essentially it involves diversity of formats and contents.
2 1
Public service broadcasters in the analyzed countries are bound to provide programmes in minority languages
either within majority language broadcasting or on separate channels. I discuss the provisions in detail in the
individual case studies.
48
(among them e.g. the Irish Republican Army, Sinn Fein, the Ulster Voluntary Force, the
Ulster Defence Association). It became known as the Broadcasting Ban2 2
and was lifted in
October 1994 when the Northern Irish peace process began (and IRA announced the cessation
of violence).
Economic interest constitutes the third type of justification. Justifications of this type
centre on perceived benefits of undistorted competitive markets. However, as Doyle (among
others) points out "perfect competition exists when there are many sellers of a good or a
service that is homogeneous (i.e. exactly the same or not differentiated) and no firm(s)
dominate(s) the market. In such a situation economic forces operate freely. ... It is very rare to
find an example of perfect competition in the real world" (2002: 8). Rather, what we face is
imperfect competition where
cost advantages associated with size will dictate that an industry should be an
oligopoly unless some form of market intervention or Government regulation prevents
the firms from growing to their most efficient size. If no such intervention takes place,
existing firms in the industry may create barriers to entry where natural ones do not
exist so that the industry will be dominated by a handful of large firms only because
they are successful in preventing the entry of new firms. But substantial economies of
scale in any industry will, in themselves, act as a natural barrier to entry in that any
new firms will usually be smaller than established firms and so they will be at a cost
disadvantage (Doyle, 2002: 9).
In order to fully appreciate Doyle's point some of the terms she uses need to be
explained. First of all, media concentration "or media integration is defined as an increase in
the presence of one (monopoly) or a few media companies (oligopoly) in any market as
a result of acquisitions and mergers or the disappearance of competitors"23
(Meier and
Trappel, 1998: 41). Meier and Trappel (1998) list six observations that are related to the
impact of media concentration on media pluralism, media diversity and media quality.24
The
first observation relates to the possible expansion of market power to political power, "media
conglomerates develop from merely economic factors in public life into powerful institutions
in society and eventually increase their political power" (ibid.: 39). Further, Meier and
~ A similar ban existed in the Republic of Ireland - known as Section 31, it was lifted in January 1994 (see
Chapter V).
2 3
We distinguish various types of concentration. My descriptions are based on Meier and Trappel, 1998: 41-42.
Horizontal media concentration refers to concentration within one and the same industry section (an example can
be the merger of two newspapers in the same geographical market). Vertical media concentration is involved
when a media enterprise gains control over some steps necessary for the production and distribution of a given
media (for example, distribution, promotion etc.). Cross-media concentration refers to a situation when a media
enterprise gains cross-ownership of different media products (respectively outlets) in different media markets
and industries. Diagonal media concentration includes not only cross-media concentration but also activities of
an enterprise from a different industrial sector in media markets.
49
Trappel point out the lack of public debate on media concentration, "usually media owners are
keen to advertise the advantages of horizontal, vertical, diagonal and international
concentration and state agencies play down the potential risks and threats of media
conglomeration to the public sphere in particular and to democracy in general" (ibid.).
According to the third observation media concentration policy favours big highly integrated
media corporations, "the common policy of privatization and deregulation all over Europe has
aggravated the very problems they were intended to solve. In other words, state and
administrative bodies in charge of media regulations have willingly stimulated - and not
reduced - the concentration process" (ibid.). Further, there is a lack of empirical evidence
from scientific research bodies, this is partly due to "two different approaches to the problem:
on the one hand, the competition policy concept developed by economists and, on the other,
the public policy concept (political and cultural concept) by social scientists" (ibid. :40). The
fourth observation that Meier and Trappel identify is that it is the competition policy concept
developed by economists that dominates discourse and policy, "some national and
international organizations refer to media concentration only and entirely under aspects of
competition law. Within this concept, all measures in respect of media concentration are
analysed from the point of view of possible distortion of competition law" (ibid. :40). The last
observation that Meier and Trappel make in relation to media concentration is closely linked
to the previous one, the public policy concept of social scientists is marginalized in discourse
and policy. "The public policy concept of media concentration research aims at describing
potential effects on the public interest, rather than on competition. Both concepts, however,
are interrelated to some degree" (ibid.).
In more concrete terms the possible impacts of media concentration include, for
example, the threat to the diversity of content and the reduction of the number of different
information sources.
The more media become exposed to profit-generating objectives (a serious concern in
the cases of diagonal and multimedia concentration), the more normative journalism
will be replaced by marketjournalism. Advertisers do not pay for high-level quality
journalism, but for the requested "quality" of the sector of society to be reached.
Market journalism, however, provides for a different construction of reality in the
media and for a substantially different media reality. Its first and foremost objective is
not to inform but to satisfy the targeted sector of society (ibid.: 57, original emphasis).
" We can be reminded of the consequences of such concentration that Habermas envisioned as discussed in
Chapter I.
50
The topic of media concentration has been widely discussed in mass communications
theory, the opinions on the significance of media concentration vary greatly, from the notion
that the dangers of concentration have been exaggerated as the media industry remains
essentially fragmented and the questioning of the influence of media concentration26
to the
opposite view according to which powerful media moguls have taken over global markets.
According to James Curran (May 2002) there are four sources of concern related to the
question of concentration.
The first is that private concentration of symbolic power potentially distorts the
democratic process. ... The second reason for concern is that the power potentially at
the disposal of media moguls tends to be exerted in a one-sided way. ... The third
reason for concern is that the concentration of market power can stifle competition.27
...
To this can be added perhaps a fourth concern. The dominant position that emerged in
this debate - that media concentration undoubtedly exists but matters relatively little fairly
accurately reflects the balance of opinion, both in the relevant academic
literature and in wider political debate. This is giving rise to a one-sided protection of
our freedoms: a state of constant alert against the abuse of state power over the media,
reflected in the development of numerous safeguards, not matched by an equivalent
vigilance and set of safeguards directed against the abuse of shareholder power over
the media.
It thus becomes clear that concentration is in general unwanted on any type of market, yet,
even if we were to have perfect competition on the media market, there are arguments that
the audiences would not get "what they want" as the media market is based on advertising and
as, for example, Doyle (2002: 67) points out, "advertising is a faulty funding mechanism in
that it creates an incentive for the broadcaster to maximize not overall viewer welfare but the
supply of whatever mix of programming yields the audience volumes, while patterns of
intensity of viewer demand for different sorts of output may be ignored." Even though there
are other funding options available (e.g. direct payment from viewers), these are unlikely to
elevate market failure. This is explained by the economic theory of discrimination: small
groups with atypical preferences will not be served by the market due to impersonal economic
processes - simply because they are too small to generate profit (Cooper, 2003 : 37).
2 5
See e.g. the discussion related to media concentration at www.opendemocracy.net as well as McChesney and
Herman (1997), Compaine (1982), Curran (2002), Hallin (1986, 1994), Doyle (2002), Bagdikian (1997).
2 6
Some argue that it is governments rather than media moguls that threaten the independence of media, further
that media concentration does not necessarily eliminate staff autonomy or decrease the power of the consumer.
Yet even a former Federal Communications Commissioner provides a very vivid description of what vertical
integration involves: "When you contract with an author to write a book and sell it in the stores you own,
produce the movie in the studio you own and run it in the theatres you own, make it into a video and distribute it
through the stores you own, then put it on the cable system you own and the broadcast stations you own,
promote it on the TV network you own, and write it up in the entertainment magazine you own, that's pretty
tough to compete with" (Nicholas Johnson, as quoted in McKenna 2000: 111).
51
Let us briefly consider instruments aimed at handling/preventing concentration in
media markets. The usual tool within the European Union in general and member states in
particular is competition law. "Competition policy has traditionally worked on the assumption
that the efficiency of markets depends directly on their competitive structure and, especially,
on the extent of seller concentration. So competition policy may sometimes involve
'structural' interventions - i.e. attempts to bring about market structures which are less
concentrated - on the assumption that this will ensure good behaviour by competing firms to
promote improved industrial performance" (Doyle, 2002: 168). Limits on media ownership
are a typical example of such a structural intervention. A different type of intervention behavioural
one - is becoming more frequent, this involves regulation that encourages
monopolistic firms into behaviour in the public interest (see also p. 27 of current chapter).
There are other basic economic characteristics of media that should be borne in mind
when assessing economic justifications for media regulation. Doyle (2002: 12) reminds us
that media generate two commodities, content and audiences thus they represent a so-called
dual-product market. Another significant feature of the media industry is that it is
characterized by economies of scale, "economies of scale are said to exist in any industry
where marginal costs are lower than average costs. When the cost of providing an extra unit
of a good falls as the scale of output expands, then economies of scale are present" (ibid.: 13).
In other words, the cost of supplying the media product to an extra consumer is nil or very
low compared to the total cost of making the media product divided by its audience. Further,
economies of scope are also commonly characteristic of media enterprises, these are
economies at the disposal of firms "large enough to engage efficiently in multi-product
production and associated large scale distribution, advertising and purchasing" (Lipsey and
Chrystal as quoted in Doyle, 2002: 14). "They arise when there are some shared overheads or
other efficiency gains available that make it more cost-effective for two or more related
products to be produced and sold jointly, rather than separately. Savings may arise if
specialist inputs gathered for one product can be re-used in another. " (Doyle, 2002: 14). In
other words, media output is such that a product created for one market can be turned into a
product for another - an interview for a documentary programme can be used for other
television/radio programmes as well.
It must also be borne in mind that "mass communications is a uniquely sensitive
industry prone to market failure" (Marsden as quoted in Feintuck 1999: 164). Doyle (2002:
2 7
In this respect he provides the example of the British national press, pointing out that due to the long control of
the market by an oligopoly no new independent national newspaper has been launched in the past seventy years.
52
64) stresses that the term market failure is usually used in two ways, to describe "any failure
by the market system to allocate resources efficiently" and also to describe a "failure of the
market to advance socially desirable goals other than efficiency, such as preserving
democracy and social cohesion". Baker notes that "the most commonly recognized reason for
markets to produce 'inefficient' or non-wealth-maximizing results is 'transaction costs' that
prevent some costs and some benefits from being brought to bear on the actions or decision
making of market participants. The consequence of this failure is often described as an
externality" (2002: 41). Or in the words of the economist Milton Friedman "an externality is
the effect of a transaction ... on a third party who has not consented to or played any role in
the carrying out of that transaction" (Bakan, 2004: 61).2 8
A frequently mentioned negative
externality is pollution, on the other hand an example of positive externality can be
a playground freely accessible to all or a nice view. Baker insists that to assess whether media
give their audiences what the audiences want we must take externalities into account. Positive
externalities mean that the media product has value for which its producer is not paid.
The audience pays for the benefit to itself but is deterred from purchasing by being
required to also pay for benefits to third parties. In this circumstance, "failure to buy"
does not necessarily mean that the audience does not want the content. ... Rather, it
only means that the audience does not want the content at the improperly high price. ...
Likewise, negative externalities permit artificially low prices - the audience pays for
only a portion of its real cost. Purchases do not mean that the audience wants the
content - only that it wants the content when charged less than its real cost (ibid., 42).
Baker goes on to rightly point out two particular difficulties with assessing externalities in the
media context. The first is that such externalities often involve non-economic values (more
informed citizens) and secondly, they often involve freedom of expression (preventing harm
to others that is caused by broadcasting a message). A related issue that researchers (as well as
policy makers) face is that "these externalities are not only virtually impossible to measure.
Often their significance, even their valence, is disputable. Therefore, whether any particular
regime gives the audience what it wants will likewise be continually contestable. Although
empirical information is helpful, the evaluation is inherently political" (ibid.: 43). Although
my assessment of media policy will only touch upon what can be considered externalities
" Bakan is a Canadian professor of law and in his analysis of the corporation makes a very strong and important
point: "Corporations are created by law and imbued with purpose by law. Law dictates what their directors and
managers can do, what they cannot do, and what they must do. And, at least in the United States and other
industrialized countries, the corporation, as created by law ... compels executives to prioritize the interests of
their companies and shareholders above all others and forbids them from being socially responsible - at least
genuinely so" (ibid.: 35). In other words, "They [corporations] are institutions which have really only one
mission, and that is to increase shareholder value" (Debora Spar as quoted in Bakan, 2004: 35).
53
linked to public service broadcasting , I find it useful to reproduce here the ten generic
categories of effects that the production and distribution of media content has on others than
the paying audience. These are:
1. The quality of public opinion and political participation.
2. Audience members' interactions with other people.
3. Audience members' impact on cultural products available to others.
4. Exposing and deterring abuses of power.
5. Other behavioural responses to the possibility of media exposure.
6. Nonpaying recipients.
7. Positive benefits to people or entities wanting their message spread.
8. Messages' negative effects on those who do not want the attention.
9. Gains or losses to media sources.
10. Costs imposed or benefits created by information-gathering techniques. (Baker, 2000:
44)
Having outlined some of the concerns that market failure raises, it is important to stress that
"the most commonly used policy tools to address market failures in broadcasting are
regulation and public ownership" (Doyle 2002: 66), Doyle goes on to argue that of these two
options the latter one - public ownership - is more efficient.
In Chapter I a reference was made to broadcasting as a public good, in economic terms
public goods are non-excludable (i.e. those who do not want to pay for them cannot be
excluded from receiving them, e.g. national defence systems protect all) and non-exhaustible.
"In essence the economic conditions for efficient allocation of a public good require that it
should be given away for free. This is because whatever price is charged for pay television [it]
will exclude viewers to an extent not justified by the marginal costs that would be involved in
allowing them to have the service" (Doyle 2002: 78) At the same time broadcasting is a merit
good3 0
which Doyle (2002: 66) characterizes as "one where the Government takes the view
that more of it should be produced than people would choose to consume, if left to their own
devices. Several different motives may be implied when something is treated as a merit
good." Among such goods/services we can list education or health care and the motives
include positive externalities, the assumption (on the part of the government) that people do
not judge their own interests in the best possible manner and also the fact that the
Cooper (2003: 42) also stresses that "the public at large benefits from the watchdog function beyond the value
that individual media firms can capture in their market transactions (advertising revenue and viewer payments)".
Herman (1997) compares externalities linked with commercial and public service broadcasting and argues that in
respect of public affairs, cultural and children's programming (all of which can be sources of positive
externalities) commercial media fail. On the other hand, commercial media tend to exploit sex and violence
which can result in negative externalities.
3 0
Nitsche (2001: 18) alerts against confusing merit goods and public goods.
54
goods/services contribute to the maintenance of social values. "Broadcasting seems to fit all
these categories. It can confer positive externalities. There are some forms of content that are
collectively desirable and that everyone benefits from (e.g. documentaries, educational and
cultural programmes) but which viewers, on an individual basis, might not tune into or be
prepared to pay for" (Doyle, ibid.). Some believe that government intervention (regulation) is
justified in this respect also because "individual choices by individual viewers are highly
likely to produce too little public interest programming in light of the fact that the benefits of
viewing such programming are not fully 'internalized' by individual viewers" (Sunstein as
quoted in Cooper 2003: 43).
In the previous chapter I have argued that broadcasting has very significant roles to
fulfil in relation to citizenship, I briefly discussed some of these roles in relation to public
service broadcasting, from the above it should be clear why the market alone cannot deliver
sufficient resources for citizenship, here I just reinstate these. Murdock (1992: 23-24) points
out that from the beginning it was clear that media ownership concentration and reliance on
advertising revenue - which resulted in pressure from large advertisers and the privileging of
the "speech of commerce" to the detriment of other voices as well as the pulling of press
towards sensationalism - significantly limited the role of media in relation to citizenship.31
The fourth justification for regulation that Feintuck identifies is public service. Public
service broadcasting systems have been well-established in western democracies, they vary to
a great degree and are regulated on a national basis, however, basic common features can be
found. McQuail (1994: 127) argues that broadcasting in the public interest should guarantee
universally accessible quality service (defined differently in the different national systems of
public service broadcasting), diversity as well as national political and/or cultural interest. I
have briefly pointed out characteristics and problems related to public service broadcasting in
Chapter I and I return to the specific regulatory provisions in the analyzed countries in the
next chapters.
The above mentioned justifications present a typology of rationales connected with
broadcasting regulation. Apart from these, one also needs to consider techniques which are
applied in broadcasting regulation. Feintuck (1999:51) outlines a tripartite classification of
such techniques: structural, behavioural and content regulation.
Murdock (ibid.) draws attention to the fact that the proposed solution to this undesirable situation was to
establish endowed papers (public subsidy as a solution was out of question as this was understood as threatening
the independence of the papers from possible government interference) which were to have financial resources
from the wealthy and were to be run by boards of trustees and dedicated to rational information and debate.
55
In shorthand, "content regulation" refers to limitations being imposed on what cannot
or must be broadcast or published, while "structural regulation" refers to limits on the
extent of that which can be owned within any market by any one corporate entity, and,
in effect, "behavioural regulation" generally serves to limit how property held can be
used in relation to its impact on actual or potential competitors (ibid.).
In relation to regulatory techniques applied in the field of broadcasting Feintuck identifies
a shift away from structural and content regulation to that of behaviour in the marketplace.
Doyle (2002: 169) argues that the changing emphasis
reflects important theoretical developments in the area of industrial organization over
recent decades. It is now widely recognized that what matters for efficiency is not
necessarily the number of rival suppliers that exist in a market per se but whether
competitive pressure from incumbent or even potential market entrants is sufficient to
induce firms to cooperate efficiently and to deter anti-competitive behaviour.
It also needs to be borne in mind that one of the causes of this shift is technological
convergence, Drucker and Gumpert (2000: 44) point out that
in the upcoming era of convergence it will also be difficult to regulate content control
as to broadcast quotas. It will be more difficult to regulate the content rules, because
one can no longer count on television stations. There are countless Internet sites
making broadcast regulation hard to control simply because of the sheer quantity of
broadcasts. In addition, the consumer can regulate the amount of local sites he visits, if
he/she decides to visit local sites at all. For this reason it is unlikely that broadcast
quotas (associated with E.U. directives) be adequately applied to the Internet.
If one were to use a single word to characterize developments in broadcasting
regulation in the past fifteen years, the word would undoubtedly be deregulation.
Deregulation has been a buzzword with politicians, governments, competition offices, the
International Monetary Fund as well as the World Bank. This chapter focused on
deregulation and self-regulation in detail to argue that rather than being miracle cures they
indeed raise a whole range of questions, perhaps most importantly among them questions of
accountability, transparency and efficiency. In relation to broadcasting deregulation (and
indeed I have to stress again that the term is misleading as it does not involve the absence of
regulation but a different regulatory approach) raises questions related to diversity (political,
cultural, of viewpoints, languages), citizenship (the crucial distinction between consumers and
citizens) as well as human rights and freedoms.
Deregulation goes hand in hand with an overall pro-competitive ethos and economic
justifications thus I considered it important to give at least a brief overview of the economic
characteristics of broadcasting (and media in more general). When judging deregulatory (and
other legal) measures it is of key importance to bear these in mind, in particular one must not
56
forget that broadcasting is a public and merit good and these types of goods require specific
regulatory measures. The chapter also stresses that to argue that deregulated free markets will
automatically deliver better services (let us not pause here to consider what this vague term
could denote) is entirely misleading for a number of reasons, many of which are linked purely
to economics. As I already pointed out perfect competition is almost non-existent, market
failures do occur and the economic theory of discrimination (to provide a service to a small
number of buyers is often not profitable, simply due to the size of the group) does very much
apply. Indeed in the light of these arguments the conclusion that increased regulation in the
public interest is necessary comes as no surprise.
Other issues at stake faced by regulators (and legislators) are the regulatory
regimes/mechanisms to be implemented - these issues resonate particularly strongly in the
context of technological divergence. Are behavioural, content or structural regulatory
mechanisms most appropriate? Is the existence of dual broadcasting regimes justified? How
many regulators are needed (nationally and internationally)? Where is the fine line between
cultural, citizenship and diversity goals and the threat of jeopardizing the economic potential
of media industries crucial for national economies? It may appear that the chapter raises more
questions than it actually answers, yet one should remember that
the crucial choice is not, as many commentators suppose, between state licensing and
control on the one side and minimally regulated market mechanisms on the other. It is
between policies designed to reinvigorate public communication systems which are
relatively independent of both the state and the market, and policies which aim to
marginalise or eradicate them. (Murdock as quoted in Raboy 1996: 9)
The debate about broadcasting regulation is still raging (in particular in relation to
convergence) and it is reflected in the broadcasting legislation implemented in the selected
countries. At this point the dissertation moves on to a discussion of the cases of the European
Union, the Czech Republic, the Slovak Republic and the Republic of Ireland in relation to
broadcasting regulation.