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.
