April 2001
Making regulation effective

Effective regulation.

What point is there in regulations which are ignored?

In March, we looked at why regulation is needed at all; this month we follow up by considering the implications of making regulation effective.
In this we are not alone; although we would not certainly share all the judgements of US Federal Communications Chairman Michael Powell, he has made some valid points about having the powers to make regulations effective if there are to be regulations.
To us for any properly-run business this usually ends up being more a matter of financial calculations than of a commitment to any higher values; indeed that's what a company is ultimately about.
However as all companies operate within the societies where they trade, it seems to us that society has both a right and a duty to set a suitable framework.
Many organisations will ignore regulations if they can get away with it and fines of a few thousand on corporations worth billions seem to render regulations impotent and cast the law in general into disrepute.
We conclude therefore that Powell is correct. If regulations can't be enforced they shouldn't be there and it follows that the best approach may be less regulation but more power for regulators to apply most stringent penalties when regulations are wilfully broken or ignored.

What penalties will work.

To be effective, penalties require general support and a clear and fair definition so that all involved know where they are in advance, and indeed can argue in advance for modification.
They also have to be applied in a context, something that lawmakers already recognise in such ways as allowing dissemination in a particular context or at a particular time of material, which is prohibited in other contexts, or at other times.
There is an obvious distinction to us, therefore, between Internet audio, a "pull" medium and broadcast traditional radio which is a "push" medium, although this distinction seems beyond the powers of understanding of one current US FCC Commissioner.
In the former case, we really don't see any need for regulation at all beyond the parameters of normal law (surely anyone who pays for something illegal is an accessory to the illegal action).
In the latter the situation is different -- commercially a radio station cannot function if operating illegally and thus the ultimate sanction of licence removal, judiciously and sparingly applied will work.
So indeed, as businesses are making commercial decisions will fines, or perhaps even more effectively the sanction suggested by the Australian Broadcasting Authority when it was dealing with the cash-for-comment enquiry. This was that the station would have to continue running but would be prohibited from carrying advertisements.

The current situation.

Regulators currently as we see it, often fail in many ways. They are fairly efficient over technical matters where rules can be clearly delineated and measurements made thus removing the need for judgement (It would be technically possible with some parameters to go as far as automating the whole process: Too much signal deviation into some remote receivers and your station is removed from the air!)
They are much less efficient in areas where human judgement and more vague concepts are involved such as programme content. Here there is often a lack of clarity over what the rules mean in practice, understandably so because they often have to be phrased using such terms as a "reasonable" or "average" listener, of what will offend in a particular context and so on. (In this context the recent release by the US Federal Communications Commission of guidelines as to its "Indecency" regulations - RNW April 7 - is to be welcomed.).
Then there is the lack of clarity on how vigorously regulations will be enforced and indeed the uncertainty of whether there will be any action at all since most regulators react to complaints rather than try and enforce a policy.
Thus, unless there is efficient dissemination to the public of what the rules are and how people can make their voice heard, there will inevitably be an over-representation of complaints about which lobbying groups feel strongly (as many broadcasters already know from the e-mail and snail-mail they get which is similarly phrased on a particular issue.).
Maybe it's inevitable, but without general public involvement the voices heard most will be of those with strong feelings rather than those with reasoned arguments.

What we'd like to see.

We don't think it possible to have simple solutions but we would like to see some widespread public debate being stimulated to arrive at a regime of minimal regulation firmly and fairly applied with a fairly standard route map of consequences for actions.
For persistent offenders, we think the obvious solution is to pose broadcasters with the same problem that individuals face as motorists -- you build up too many points within a particular period and you're off the road.
Thus the penalty for any individual offence can be suited to the degree of that offence with only really gross abuse likely to lead to severe penalties such as revocation of licence. On top of that though, organisations, which are persistent offenders, would eventually get close to a situation where they would automatically face loss of licences -- or rather they would change practices as they started getting close.
We are cynical enough not to believe that commercial operators will self-regulate against their perceptions of commercial interest (not necessarily the same thing as their self-interest as many organisations have found when actions tip a balance and suddenly a seemingly minor step upsets enough people to change an overall attitude).
They would however calculate very carefully if it was obvious that their commercial interests were threatened.
At the same time, however, we would not like to see timid media afraid of occasionally over-stepping the mark (in this regard we note the stifling effect of UK libel laws and some European privacy laws on their media compared to the freedoms in the US but also the unfair way in which individuals without power are often deprived of any rights of reply to abuse of them under both systems).
We would therefore like to see some counterbalance to any organised campaigns on issues, which could easily place broadcasters under unfair constraints including the pressures of dealing with them.
Maybe a sub-section of regulation which says that complaints that are clearly part of an organised campaign are automatically declared void unless the organisation behind them puts up some form of "bail bond" which will pay all the broadcasters costs when a complaint is not upheld.

That way the weaker individual retains a voice but the powerful lobby has to put up or shut up..

Any views? Please comment on the above. For that matter, if you can put the time aside, we'd like to introduce some "Guest comment" pages this year to stimulate more feedback and dialogue.

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