is self - regulation the answer ? guy berger. a tale from the tip of africa 1

Is self-

regulation the

answer ?Guy Berger

A tale from the tip of Africa

1

External regulation

SABC is an advert-financed PBS,

And it reports to:

• Regulator: Icasa • Board → Parliament• Govt Department of Communications

(represents the state as shareholder)

External regulation

SABC reports on compliance with:• Charter (as set out in Act of parliament)

– freedom; reflect S. African views & languages

• Icasa’s Code of Conduct – for all broadcasters– deals with generic issues (eg. Watershed)

• Own Code of Practice (req’d by law) – Editorial values, what SABC strives to do

SABC’s

self-regulation• Part of a voluntary broadcasters

council (BCCSA) with own Code of Conduct– Deals with individual complaints

• Editorial Policies since 2002– With some monitoring & evaluation

systems

Is it working?

• No: numerous stakeholders still wanted extra external regulation. Why?

– To make SABC more of a distinctive PBS– To limit its scope as a commercial competitor.

• Re-licensing by the Regulator in 2004→ debate over further regulation for SABC.

Why re-licensing?• Broadcasting Act 2002 said SABC stations

to be classified & operated as:

PBS - a public service wing, or

CBS - a commercial service wing.

(Policy: CBS to subsidise PBS; no reverse flow; no licence fee income to CBS)

• 2004: SABC applied to Icasa to amend its licenses for 18 radio & 3 TV services.

What SABC wanted

2

No new license conditions!

1. Unnecessary – already highly regulated and self-regulated.

1. Illegal – because conditions would:– Infringe free expression rights – Usurp role of parliament-appointed

Board

More conditions would also be…

3. Endangering ― Of delicate economic model which

needed flexibility in face of competition

4. Redundant ― SABC already doing good PBS

5. Globally exceptional ― Special nature of PBS internationally

As Icasa summed up SABC case:

We determine HOW we meet obligations; you determine WHETHER.

“

”

Commercial TV critics weigh in

3

e.tv (fta) in for the kill

• We have the more onerous obligations: – Local content (45%); (SABC 3 = 35%)– Only 12 mins ads an hour (SABC = no limits)

‘SABC wants self regulation to keep

unfair competition,

yet rest of industry is regulated’

“

”

“SABC is a virtual monopoly”

Licences should also ensure:

– Separated programme buying for PBS and CBS

– No cross-promotion between PBS & CBS– No cross-selling of adverts or anti-

competitive discounting– Repeats across channels may not count

towards local content quota

Lacunae in extant regulation:

• Broadcasting Act sets out only general statements of principle – not licence conditions;

• SABC Editorial policies = just broad

principles, no performance indicators.

Eg. “significant” number of education programmes.

• Licence conditions must be measurable and quantifiable to be enforced.

• Such conditions will make SABC deliver on public services like 11 official languages.

• Conditions should spell out parity: same detail conditions for SABC’s CBS TV as e.tv

• Ban “monopoly” practices.

Conditions determine quotas and not content – therefore no free speech infringement.

“Tie them up, pin’ em down!”

Commercial radio adds kicks

4

Icasa can’t abdicate its duty to

secure level playing field for business.

Its role is to flesh out law into substantive and enforceable detail.

Precise conditions are necessary for

Icasa to assess compliance with mandate

Civil society speaks

5

SABC seeks to: – Undermine role of Icasa– Evade accountability

Icasa must protect public – therefore no free rein for SABC:

• Regulation must oblige Board to get government funding

• Clarify distinction between CBS and PBS– Can’t treat SABC as a single collective entity

• Parity needed with other broadcasters; indeed:

not just parity – but more obligations!

SABC rises from the floor

6

Critics “absurd”, “mischievous”

• Not seeking self-regulation – but pointing out we are already regulated, and even more so than others arguably.

• Obligations exceed private sector – and make it hard for us to compete.

• We account via annual reports, dialogue with parliament and the Regulator, and public consultation.

• Charter “exacts from the SABC an extensive range of detailed obligations.”

• ICASA is already obliged to:– monitor & enforce compliance with Charter. – scrutinise and review Editorial Policies – enforce our Code of Practice– ensure we comply with their Code of

Conduct.

Re-licensing should not substitute subservience by the SABC to the (apartheid) government, with subservience to ICASA.

Business arguments

• Fair competition issue is extraneous to re-licensing –needs sector-wide process.

• Ad limits are not a matter for re-licensing.

• “Any recommendation on limiting the

SABC revenue opportunities should

be approached cautiously given the

Corporation’s fragile revenue base.”

Devil and the detail

•“fallacy” that ICASA can only monitor compliance if obligations reduced to “a calculator and excel spreadsheet”

• ICASA is capable of translating broad statutory obligations into tangible

form and of making a judgement on whether a particular quantity or percentage of programme material is “significant”.

Regulator’s ruling

7

Power to regulate

• Role more than “rubberstamping” SABC’s proposal.

• Legally empowered to impose conditions “that are appropriate and necessary (in the sense of being reasonably needed)” in order to reflect SABC’s obligations.

•No violation of free expression.

• Silence on fair competition aspect.

Saints in the detail• Conditions will help give effect to SABC’s

obligations in respect of PBS and CBS.

Function is to:

•Translate law’s broad obligations – “many …expressed in vague and aspirational terms” – into more specific obligations.

• Provide “with reasonable certainty” sufficient

guidance to the people affected.

SABC TV tied to specifics• Both PBS and CBS limited to 12 mins ads,

and both get many public service obligations.

• Main difference is new 80% language obligations for PBS TV (10 tongues on two channels).

• Local content: 35% CBS; 55% PBS.

•No ban on CBS-PBS TV channels sharing services, cross-promoting, content purchasing, counting of repeats, and cross-advertising.

SABC radio pinned down

•public radio = many obligations: news, children’s content and drama.

• SABC commercial radio really only news.

• all stations can take unlimited ads.

SABC resigns itself to regulation

• Acceptance, but asks for more

“incremental” or “gradual” approach to implementation.

• Repeats that conditions are

potentially damaging to the SABC’s future stability and viability.

Assessment

8

Regulation results

Icasa rejected status quo of SABC regulation.

BUT with these new regulations: • Commercial logic can still prevail even on PBS.• SABC had said “invidious” model and yet

also claimed that status quo regulation had provided flexibility to succeed in serving audience as both citizens and consumers

• Icasa accepted basic economic model, but not SABC’s claims of successful results.

Regulation’s contradictions

• Re-regulation raises costs but slightly restricts previous opportunities for

income. (cf. 12 minute limit on TV ads)

• So: life is more difficult for SABC –

the bar has been raised for its PBS performance … which in turn depends on greater commercial results across all divisions.

An intrinsic tension• Commercial model points to:

– money-making rationale prevalent,– competing for advertising, – treating obligations as onerous.

And: bare minimum on local content or local language– Rather than aiming for maximum PBS.

• So regulation exacerbates the stress.

Re-regulation ahead?

• CEO Dali Mpofu, appointed after the re-licensing, wants a reassessment of its commercialised funding model.

• It may be that unless there is change in government policy, SABC will not be able to meet all its licence conditions.

• Alternatively, it may be that ICASA will either relax the conditions, or accept less than full compliance.

Regulation rules … for now• Today, SABC is required to make more

money to fulfil a much more measurable public service, yet without compromising that service!

• Self-regulation, and extant external regulation, was not achieving this.

But: is the new external regulation an answer to the lacunae of

SABC self-regulation? We’ll see.