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Penalties related
to the importance attached to things.
The penalties a society attaches to
breaches of law or codes are almost always a pointer towards the
importance attached to things and a number of news stories over
recent weeks together with the impressions given by the severity
of US Federal Communications Commission (FCC) penalties
for various offences seem to present a disturbing perspective on
the US.
We say this because of the comparatively high penalties levied in
general on pirate station operators compared to those on commercial
broadcasters, the amount of comment in recent results about the
degree to which the absence of political adverts this year have
reduced revenues and profits, and also the marked lack of response
to stories of US broadcasters and programme providers --- such as
Sky Radio (See RNW
Oct 28) - charging their subjects to carry out and use
interviews; it is difficult not to conclude that domestically in
the US money rules and democracy comes a poor second whatever high-flown
declarations may be made from the White House about Iraq.
The issues have a common thread although they may not be directly
linked and in Australia when similar activities by talk hosts in
taking money but then not disclosing an interest became public in
the cash-for-comment scandal in it provoked widespread responses,
a regulatory enquiry, and a change in the rules (See
RNW Feb 28, 2000).
The US, it would seem is different and either has a different perspective
on democracy or doesn't mind being bought.
Relative penalties and
the logic behind them.
Apart from the recent exceptional penalties
levied on Infinity over the Sex in St Patrick's Cathedral
stunt - and even then they were low in the impact on Viacom
compared to a USD 10,000 penalty on a small-scale pirate operator
- the US seems to take the content of what is broadcast much
less seriously than what we might call "technical"
and safety-related offences.
In this we see some sensible considerations underlying the
relative scales but a lack of proportion. Unless the argument
is that the pirate could affect emergency service transmissions
as opposed to causing interference to the signal of a commercial
broadcaster, our view is that offences relating to unlit towers
that could be a hazard to aircraft or unfenced antennae that
could damage people's health should generally attract significantly
more severe penalties than an activity that inconveniences
others but is not risking injury to anyone's life or limb.
The fact that they don't should surely be of public concern
unless the realistic view is that the whole edifice of tower
lighting rules is unnecessary in many areas since the de facto
risk of an aircraft hitting a tower is considered to be negligible.
If that is so, the rules make sense; if it is not so, the
delays permitted for remedying some defects should not be
allowed and the penalties for breaches should be much higher
and by higher we mean higher in both absolute terms and in
relationship to the resources of the offenders.
As regards "content" related offences, it would
seem to us that the US has generally just about given up on
these except where a particularly gross violation takes place
that leads to significant public outcry. Were this because
of a genuine concern for freedom of speech, the outcry would
not matter and the penalty would relate solely to the severity
of the breach in terms of the rules as written. This it seems
to us is manifestly not the case at the moment.
We would therefore suggest that if the intent is to ensure
safety through inhibiting breaches and minimize offence and
inconvenience where safety is not an issue, penalties should
automatically be related to the ability of the offender to
pay; in other words it would be quite just at times to fine
Clear Channel or Infinity a million dollars where a near-bankrupt
local station pays thousands. The current base scales are
totally inadequate to do this and are therefore clearly going
to be ineffective in that in some areas the big companies
will simply write down paltry fines as part of the cost of
doing business.
Where politics is concerned, we again think the current situation
in the US should be giving far more cause for concern than seems
to be the case despite measures by some politicians such as Republican
Senator John McCain to do something about the degree to which
money is allowed to influence things.
Taking on board arguments that an individual should be allowed
to spend their money as they like, we would point out that this
is not accepted where it is to the known detriment of society;
were this not so, it would be no offence to hire a hit man. Logic
thus says to us that where democracy is concerned it is quite
reasonable to limit activities so as to ensure a balance is struck
between the freedom of the individual and the health of the body
politic.
Following on from this, we would suggest that it is reasonable
to limit individual contributions so as to ensure that contributions
do not end up running close to bribery and corruption - either
by placing absolute limits on the amounts individuals and corporations
can donate and that politicians can accept from lobbyists without
making full and public declarations or possibly by splitting sums
above a certain amount into two parts - one a general fund providing
matching funds to those a political or party raises from small
donations (i.e. relating it to the numbers of people supporting
the party or individual) and the other that which can go to the
candidate and party. In our case a four to one split would seem
about right - any donation above say USD 50,000 would go eighty
per cent to the general fund - thus improving the health of the
democracy - and twenty per cent to the individual.
We would also suggest that as the airwaves are a leased public
resource, broadcasters should be set well-defined public duties
in terms of news coverage of issues allied with a similar restriction
on the maximum advertising a candidate could buy as a multiple
of a base amount or the amounts spent by other candidates, whichever
is the greater. Allies with this, those broadcasters who did not
meet the duties in terms of news coverage should be banned - with
automatic immediate revocation of licence as the penalty - from
carrying any political or issue advertising in an election thus
giving them the option of taking on their public duties in the
period with potential financial rewards or not doing so with no
benefits being permitted.
Open declarations of
interest.
In the case of the other issue noted, that
of requiring payment for interviews that are then carried
without adequate information concerning the details, we think
the Australian experience shows the way.
To us what is required is open declaration of interest with
the most severe financial penalties where this is not done;
if the interview is in fact an advertisement it should be
made clear to the audience that it has been paid for - and
here we would go further than the Australians and insist on
the actual amount also being broadcast on air and put on a
company web site available to all so as to allow the public
to put things into context.
Similarly if an individual or company has vested interests
in an issue this should be stated openly and again - as in
Australia - broad details
should be available to the public via web sites as well as
being stated on air. This is done routinely by most major
newspapers, which note when covering an issue, their vested
interests.
Where this is done we think financial penalties rather than
the licence revocation we mooted above would be the appropriate
response since in the one case the actions are a denial of
responsibility to play it fair when using a resource leased
from the public and the other an exploitation and potential
misleading of the public for financial reward.
As to the level of the penalties, we would suggest that a
penalty that is the equivalent of telling the pickpocket caught
red-handed to give back the goods is a waste of time; the
penalty should automatically be of the order of at least ten
times the amount of benefit that has been gained by the individual
or organization with a baseline set of one twelfth of the
past year's total revenue and the company or individual having
to provide evidence as mitigation to reduce this rather than
the onus being on the regulator to prove the amount.
What you think? Please E-mail
your comments.
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