July 2004

Content regulation -Canada and the USA

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..

Our view.

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 route.

We therefore respect the views of others who would be more restrictive but not of those who would arbitrarily change rules.
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..

The CHOI affair .

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 headquarters.
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 has declined.
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.

The US experience.

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 your comments.

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