| Content regulation
-Canada and the USA.
This month, spurred by the Canadian Radio-television and Telecommunications
Commission (CRTC) decision not to renew the licence of Quebec
station CHOI-FM (See RNW
Jul 14) largely because of comments made by its hosts
that continued despite warnings, we felt it would be of value to
consider and contrast the differing broadcast regulatory regimes
in North America as regards content as opposed to technical matters.
That of the USA since the Federal Communications Commission (FCC)
fairness rules were dropped is generally to allow pretty well anything
to go as far as everything except "indecency" is concerned
and regulate that only at times when children may be listening but
leave things unregulated during overnight hours.
In Canada the regulator still has a significantly wider role with
rules relating to such areas as Canadian content regulation and
ensuring political fairness during election periods - politics is
still not something in which private use of leased public airways
can be used to drive profits in the way it can in the USA - but
regulation relating to such matters as indecency and other content
matters is in general the province of the Canadian Broadcast
Standards Council (CBSC), which applies the codes of industry
body, the Canadian Association of Broadcasters. That
structure normally insulates the CRTC from content decisions on
such matters as indecent, abusive, or offensive broadcasts..
Before going on to consider the situation in
Canada and the US, we felt we should put our own view down
as it has involved.
We start from the basis that what matters are the rules as
laid down more than the structure of who does the enforcing
although it is obviously of importance what enforcement powers
are given to regulators.
Our own views- some may think as might be expected - tend
towards a minimum of government content regulation, almost
to the point of none except where other laws - such as incitement
to criminal actions - are concerned. At the same time we recognize
that we have a vested interest - and those who own broadcast
stations even more of such an interest - in taking such a
We therefore respect the views of others who would be more
restrictive but not of those who would arbitrarily change
That means we have to accept that there will be sanctions
and that for these to be effective in making the regulations
effective there has to be the possibility that the sanctions
will be very severe, either financially in the form of fines
or loss of licence.
After much thought, we've come down to the view that we would
only go for licence revocation where there has been a breach
of other laws as enumerated above but as regards renewal would
in any case prefer a re-evaluation and re-offer of licences
in any case after a reasonable period - say 8-10 years.
This is partly because we feel it needs to be clear that the
licence is a lease not a purchase of public airwaves and also
because the system of automatic renewal acts in our view to
promote vested interests not those of the public.
For other breaches that relate not to law breaking but matters,
to use a regulator's phrase, of "taste and standards"
we think it imperative for fairness that there should be proper
debate before setting a range of penalties and that all changes
in these be only made after a reasonable period of notice
to licensees: This would automatically have ruled out many
of the penalties recently applied in the US, since as we note
below they breached both the rules as written and also changed
penalty scales after offences had been committed.
We also think that any such penalties should be proportionate
in their effects on an offending licensee - perhaps by relating
them to a combination of station income and profits - since
the same fine on a struggling AM in rural Alabama would have
a much more severe effect than on a prosperous New York station.
We'd also welcome the idea of a corrective rather than punitive
system where comments have been broadcast that are difficult
to defend - far better than fining a station for a serious
breach on a show to make the station and show personnel aid
the complainants to make a counter-show that sticks within
the rules but argues the case thoroughly yet calmly - and
then have to broadcast the counter show in the same slot:
it the regular listens are then brought face-to-face with
their prejudices and think about them, it would be all to
the good, and if they turned over to another channel that
would be the station's penalty..
One of the real benefits in our view from a dual system is
the diversity of services it brings. In terms of genuine choice
we would argue that the mixed system provides significantly
greater diversity if properly structured than either a public-only
or private-only system.
Looking at the situation in terms of radio in the UK compared
to the US, where commercial dominates and public radio is
becoming more and more primarily a news-talk medium, we think
the balance here is clearly in favour of the UK.
True in the average English city you don't have the same number
of themed music stations as in the US although as digital
radio has expanded so has this particular aspect of choice.
But on the other hand a quick dip into BBC radio schedules
any day will show a vast range of programming that just has
no real equivalent in the US and that were it to be allowed
to die would never be created by the commercial sector.
Just consider the range of drama, story readings, radio comedy,
long documentaries, current affairs, news, sort and talk on
British radio with the choice listed in the US including both
commercial and public stations.
And what of other areas? When US broadcasting began there
was an emphasis on localism but as consolidation has put more
and more of US media into fewer hands this has decreased and
stations have become increasingly subject to the rule of corporate
Interestingly enough in the UK where the BBC was set up as
a national broadcaster but its commercial competitors following
the US example were set up on a local basis the trend has
been for the commercial sector to become less local under
the consolidation that has taken place so far whilst the BBC
has, in reaction to the commercial sector, added local services.
Also interesting is the fact that in the UK radio listening
- and listeners to a degree get a free ride since there is
now no separate radio licence so all the funding comes from
the TV income - has been increasing whereas that in the US
The reason for this in our opinion is a combination of a greater
real choice, lower advertising load for the commercial sector,
and the beneficial - for the audience anyway - effects of
an environment where each sector is fairly strong and evenly
matched and the regulatory regime prohibits format changes
without a process to justify this.
In the US, the regulatory system is more directly party political
but the current "indecency" actions seem to us more
political than party political and in some cases almost totally
indefensible in a nation that claims to respect the rule of law.
Our cavils with the US therefore boil down more to the application
- or misapplication in our view - of the rules rather than the
rules themselves. The US, having written some of the regulations
fairly clearly in our view [and even more relevantly we note that
the FCC's enforcement bureau applied those rules in the case of
the Bono Golden Globe awards comments to find that there had not
been a breach of the rules] but has then reaction to complaints
by a vocal minority - as for CHOI, so for Stern - by reversing
a decision or applying much heavier penalties than those generally
levied when the breaches were committed.
We believe that the reversal of the Enforcement Bureau's original
Golden Globe ruling was indefensible and other subsequent decisions
albeit having more justification in terms of material breaching
the rules were also unjust in that the penalties imposed were
completely out of line with those applied at the time when the
offences were committed.
The US in other words, doesn't so much have a problem with
writing the rules as with respecting basic rules of law.
That being so, we rather hope that Viacom will take up the cudgels
and fight all the way should penalties be applied to the Howard
Stern Show and not Oprah Winfrey: With luck they may even get
rational US citizens behind them.
We also hope the courts will overrule at least some of the FCC
decisions and that it will lead to a requirement for more clarity
about the regulations and penalties pre-transmission rather than
changes being applied months later.
What you think? Please E-mail