January 2007

Broadcasters and the law.

Broadcasters and the law.

Broadcasters and the law- are specific laws needed?

As the furore continues over the death of Sacramento woman Jennifer Strange who took part in KDND-FM's water drinking contest- complete with various calls for the FCC to step in and revoke the station's licence as well as civil lawsuits - we thought this was a suitable time to consider the relationship between broadcasters and the law, both in terms of what is and also what we think should be.

What is certainly clear in the US is that the one area dominates the regulatory-cum-public mind when it comes to enforcement of broadcasting regulation - that of broadcast indecency and in our view some of the decisions seem to fit into a mould of mob law inspired by Witchfinder generals much more neatly than one of thinking about regulation, setting down boundaries clearly and then applying the rules as published.

So what laws should be drafted specifically to apply to broadcasters if any and where should the law applicable be that which is applicable in general but happens to catch a broadcaster? Our view is that the first should be very few and that in principle laws are best drafted that apply broadly, even when about offences specific to certain occupations or areas of business.

Legislation specific to broadcasters.

Looking at things from the light of our view that legislation should as far as possible be written to apply in general rather than particular, we can think of nothing that strictly speaking relates solely to broadcasting.

This does not however prohibit the regulation of spectrum - necessary for technical reasons but applying to a wide range of communications - nor any regulation of indecency although here, apart from caveats about public airwaves and the difference between a service that has to be chosen and paid for and one that is in the ether and can be stumbled upon in error, we see no reason why laws should be different in general for broadcast and other media.

There is, of course, a difference between material available via print media or along a cable, Internet or other means where the resources to distribute are effectively limited only by cost and media dependent on limited spectrum and thus for reasons if nothing else of preventing interference to the degree that it degrades all services requires some form of regulation backed by legal sanctions.

Where the resource is unlimited and requires specific positive action to access it, no such regulation is needed and thus regulation can be left to the marketplace against a backdrop of general law: An extreme example here would be so-called "snuff movies" that are advertised as showing a death where it could be reasonably argued that those who pay to view it are complicit in the killing or encouraging a potential future killing. There is thus no need for censorship - all involved including all customers should face prosecution as accessories to murder (and in our view, if the advertising is to promote material as involving actual death it would be no real stretch to convict for incitement to murder - with a similar lengthy jail sentence - should a defence then be used that there was in fact no such killing). The general law, in other words should be enough.

Regulation of broadcasters.

As digital technology has developed so has the ability to get more use out of spectrum and also to use it in different ways and thus the requirement to think again about the nature of regulation of that spectrum.

On the basis of the amounts paid for mobile phone spectrum only a few years ago it's quite possible that broadcast media could be put out of existence in a completely free market world but we would argue that it would be a dereliction of duty for any government to allow this to happen because, to quote from an Ofcom Digital Dividend consultation paper, " … there are some potential uses and users of the spectrum that could bring additional value to society, but that may not be able to earn commercial revenues to correspond…"

So in a new world where digital not only means that more can be delivered by the same spectrum but that different uses can be made of it, what approach should regulators adopt for allocation of the use of that spectrum? And should that approach dictate in part the way the appropriate technology for a purpose.

A suitable regulatory approach for digital.

In line with the above, we consider the essential element of regulation of broadcasters should relate to their use of a limited and publicly owned resource - spectrum. It is thus acceptable for a society should it so wish to constrain the use of such a resource to a greater degree than that of one which is not thus limited.

A corollary of this, however, should in our view be that the relevant restrictions are set down clearly and understood to be there when the initial agreement - to licence spectrum and to take up that licence - is made.

If subsequent changes are then necessary we would hold that they should be introduced on a basis that is fair as far as be possible to both parties: In practical terms we would take the view that should a broadcaster feel that new constraints being imposed will have a significant financial effect on the broadcaster there should be an automatic option to return the licence and get a fairly-calculated refund related to the sum bid for the licence and the use made of it.

This would not prohibit the same broadcaster, if a licence were handed back, from bidding for it again but would mean that the market value would then be placed upon the licence

Other laws affecting broadcasters.

In this area is pretty well everything else, from copyright - where we can see no intellectual justification for allowing different rules to apply to terrestrial radio stations than apply to the satellite companies and Internet streams - to areas like contest where we would take the view that there is a general duty of companies to take reasonable precautions to prevent injury but where criminal or civil law should apply generally.

We see no particular reason for a broadcast regulator to be involved - neither although they often are - in questions relating to competitions if suitable general laws exist nor for there to be laws on such matters for broadcasters when it is not feel that they are needed in general law.
It is accepted in some countries that matters such as content regulation, including that of adverts and competition rules, should come under the remit of a communications regulator and we can see the arguments for this.

This however in our views fits more harmoniously in a context of a society with a policy of fairly general acceptance of state regulation than one which, in theory at least (the way "pork" is distributed in by US legislators would indicate less than total devotion to the market by many -"corrupt" they might well be called by the same people when operating in another country under a different political system) relies on the marketplace as the main regulator of action allied with civil legal penalties to temper that marketplace.

Thus in our view the logical situation in the US would be to enforce adequate publication of relevant information to enable people to judge what they are getting into ( be it taking part in a competition, smoking, or being able to know what they are eating and its origins) and then use the general law via criminal (we would have no objection to jail sentences for "corporate manslaughter" where a company's executives have allowed reckless endangerment of people's lives) prosecution or civil suits for damages.

When it comes to areas like copyright and spectrum licensing, which are more limited areas but not exclusive to broadcasters, our feeling as already noted is that the rules should be determined on general principles rather than being industry specific. This means that for spectrum the current situation, where people break the law if they do not have a licence but accept the relevant conditions that go with a licence if they obtain one seems appropriate and would not preclude changes but limit them in the sense of any onerous new rules only coming into effect on application for renewal - thus giving time to prepare accordingly.

As for copyright, we see no reason for terrestrial broadcasters, who - through the National Association of Broadcasters - call for "level playing fields" in various areas relating to competitors like satellite and Internet broadcasters, should not face a level playing field: If they believe in the market they should have no objection to the scrapping of the current exemption they alone have to paying royalties on music broadcasts and negotiating deals under the same framework that applies to others.

What you think? Please E-mail your comments.

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