The Digital Beat

Vol. 1, No. 5, 16 April 1999

Public Interest Obligations in Broadcasting ¿ International Comparisons

• Introduction
• Political Broadcasting
• Content Quotas
• Sanctions
• Public Hearings
• An Advisory Role for the Public
• Reliance on Public Broadcasting to fulfill the "Public Interest"
• Conclusion

INTRODUCTION

With the recommendations of a Presidential Advisory Committee delivered to the Vice President in 1998, the coming months will see review of the public interest obligations of broadcasters by the Federal Communications Commission and Congress. Although no other country has a comparable system of commercial or local broadcasting, there are occasional examples of international practice that have value when considering ways in which public interest obligations of American broadcasters can be better defined and enforced. In every instance, regulations arise from the same premise: that the spectrum is publicly owned, and that the broadcasters who get to use it, whether for profit or not-for-profit, have public interest obligations.

In most countries, the legal and regulatory system for broadcasting was erected on the basis of a) non-commercial public broadcasting, with commercial stations being added later, and b) a national or regional system, rather than a local one. No other country, moreover, has a First Amendment -- one of whose (unpremeditated) consequences is to preclude the possibility of public interest or social responsibility in broadcasting acquiring the sort of quasi-constitutional/quasi-legal status it has in most other countries.

Public interest obligations are therefore embedded in these other systems much more deeply -- almost always beginning with the charter (e.g. the BBC's charter in the United Kingdom) or the legislation which established a national broadcasting organization (e.g. Germany and Japan, where ZDF and NHK respectively were created after World War II by occupying powers using the model of the UK). These national broadcasting organizations are publicly owned and not-for-profit, but they are not necessarily barred from taking advertising (e.g. CBC, ZDF, etc.). Subsequent legislation to add commercial broadcasting to the mix almost always accepted, implicitly or explicitly, the public interest ethos of the national broadcaster.

In no other country, therefore, has the marketplace been given so much control over the nature and content of broadcasting as in the United States.

It is perhaps unthinkable that the United States can, at this late stage, introduce legislation or regulatory controls of the breadth and scope used in other countries -- they would, no doubt, be challenged as unconstitutional. But it is worth noting that the debate over the public interest obligations of broadcasters is much more intense in most countries than it presently is in the United States. In Germany, for instance, where commercial broadcasting is a comparatively recent addition, it amounts almost to a national obsession. In Australia and Canada, where (for different reasons) commercial pressures on traditionally non-commercial systems have put great strain on broadcasting, it has become a political issue of considerable importance.

In any case, there are valuable lessons to be learned from the approaches of other nation's to the challenges that exist here as well -- such as providing amble coverage of politics and elections. And there are also models that should be examined as we begin the age of digital television. To be considered are the roles of content quotas, sanctions, public participation, and the reliance on public television to fulfil the public interest.

Political Broadcasting

Television advertising expenditures in political campaigns in the US increased 800% between 1970 and 1996 -- more than any other category of campaign finance. Candidates have turned to television advertising, especially on broadcast television, because in many areas, it is the best medium to reach voters. In a democracy that aspires to be deliberative, television can do a great deal if it deals with political issues in a serious way. Engagement with serious issues can be educative; it can increase citizen involvement in political issues; it can make citizens better able to choose.

In most countries, public broadcasters have some sort of constitutional obligation to give free time to politicians -- certainly during election campaigns, very often at other times as well. In France, for instance, the two public service channels, France 2 and France 3, are required to transmit "twelve statements about a great national cause agreed annually by the government". Few other countries allow their governments so much latitude! The most sophisticated system is probably the British one -- and it is the most interesting to the United States because it is jointly operated by public and commercial broadcasters.

Each year, broadcasters (radio and television, public and private) make a joint offer of free airtime to the principal political parties. Politicians have no statutory right to this airtime: it is essentially an offer made by the broadcasters, but it is traditionally "negotiated" with the politicians before being finalized. The extent of a party's inclusion in the offer is governed by the percentage of total votes cast for that party in the previous election (i.e. a system of proportional representation) with additional calculations made to ensure adequate representation for regional parties in areas such as Scotland, Wales, and Northern Ireland.

In a non-election year, the principal parties can normally expect five broadcasts, each of five minutes, while smaller parties get less airtime. The scheduling of the broadcasts is at the discretion of the broadcasters, but an undertaking is given that they appear between 5:30pm and 11:30pm (all channels used to transmit them simultaneously, but this was so unpopular with the viewers that it was abolished a few years ago). The production costs are paid by the political parties, who also have editorial control. The content must observe the law of the land and be non-defamatory. Broadcasts may not include an appeal for funds, but they may urge viewers to become members of their party.

During an election campaign (only about four weeks in Britain), the broadcasters make a special offer of time to the parties -- normally a year's allocation concentrated into the period of the campaign. The number of individual broadcasts is based on the same calculations as are applied in non-election years, but with additional time calculated by the number of candidates a party is fielding.

In exchange for this broadcast time, neither political parties nor individual candidates are allowed to buy time for political advertising.

Broadcasters are anxious to discontinue the grant of free time in non-election years, in view of the plethora of ways in which politicians can now reach voters (through the regular broadcasting of Parliament, for instance). But broadcasters remain committed to continue with the current arrangements during election campaigns, expanding them to give more emphasis to local and regional campaigns.

The President's Advisory Committee on public interest obligations (know as PIAC) has recommended that if Congress undertakes comprehensive campaign finance reform, broadcasters should commit firmly to do their part to reform the role of television in campaigns. This could include repeal of the "lowest unit rate" requirement in exchange for free airtime for candidates, a broadcast bank to distribute money or vouchers for airtime, and shorter time periods of selling political airtime, among other changes. In addition, PIAC recommends, the television broadcasting industry should voluntarily provide 5 minutes each night for candidate-centered discourse in the 30 days before an election.

A majority of the Committee went even further and made a strong recommendation for "free time" for national and local candidates for candidate-centered discourse. The majority recommendation sets the end of 1999 as a deadline for Congress to address the issue -- and suggests the FCC take up the issue if it gets bogged down in the political process.

Content Quotas

Quotas are not a popular method of regulating broadcasting. In most countries, voluntary codes of standards are preferred, but quotas are used when there are overriding concerns of national or public interest. These concerns almost always relate to cultural identity (as in Canada, Australia), language (as in France), and the protection of children.

The Australian Broadcasting Authority (ABA), which regulates commercial broadcasting, is required by the Broadcasting Services Act of 1992 to develop program standards covering the areas of children's programming and Australian content. The ABA imposes a 'transmission quota' of 50% Australian content across all categories of programs broadcast between 6am and midnight. The system for determining what is and what is not "Australian" is complicated and is based on a computation of Australian content, the use of Australian personnel, a quality factor (expensive drama scores higher than other programming), and the number of hours. Even stricter quotas are laid down for advertising - 80% of all advertisements broadcast by a licensee must be produced in Australia or New Zealand.

Children's Television Standards are also enforced by the ABA (children being defined as people under fourteen years of age): every station must broadcast at least 390 hours of children's programming a year, 50% of which must be first release. The quality of these programs is not prescribed, but their scheduling is -- stations have to notify the ABA of the times when children's programs will be broadcast and are prevented from broadcasting "unsuitable" material during the same time period. The Standards also limit the amount of advertising time allowed during children's programs, as well as the number of repetitions of the same advertisement, and they ensure that a clear distinction is made between what is programming and what is advertising.

In Canada, the most highly regulated system among Western nations, the Canadian Radio-Television and Telecommunications Commission (CRTC) lays down content quotas governing Canadian content levels in drama, children's programming, and documentaries as a condition of license renewal. Broadcasters are required to maintain a 50% minimum level of Canadian content between the hours of 6pm and midnight. Most broadcasters (but not the CBC) interpret this as local news between 6 and 7pm, and low-cost Canadian programming between 11pm and midnight, thus enabling them to devote most of the heart of prime time to American programming. Nevertheless, statistics show that, since the mid-1980s, the amount of Canadian programming being made -- and its audience share -- have increased significantly.

In France, a very different, and very specific, form of quotas is applied to France 2 (one of the two public service channels). The terms and conditions under which it operates state that each Sunday morning it must transmit "programs of a religious nature reflecting the main forms of worship practiced in France" (specifically, Catholicism, Protestantism, Judaism, and Islam). Moreover, France 2 is required to bear the cost of these programs, up to a stated maximum.

In the US, the Children's Television Act of 1990 requires the FCC, in its review of each television broadcast license renewal application, to "consider the extent to which the licensee...has served the educational and informational needs of children through the licensee's overall programming, including programming specifically designed to serve such needs." Congress found that television has the power to teach children -- that "television can assist children to learn important information, skills, values, and behavior, while entertaining them and exciting their curiosity to learn about the world around them." Congress also found, however, that there are significant market disincentives for commercial broadcasters to air children's educational and informational programming. In 1996, the FCC adopted rules which instructed broadcasters to air at least 3 hours per week of educational children's programming.

In the age of digital television -- when a single station can provide four to six video channels where it can now only provide one -- PIAC recommends multiplying broadcasters' public interest obligations by the additional number of channels they provide. The Committee also recommends the creation of new, noncommercial channels devoted to educational programming for all ages.

Sanctions

Public Hearings

An Advisory Role for the Public

Reliance on Public Broadcasting to Fulfill the "Public Interest"

PIAC urges Congress to consider ways to provide increased funding for public broadcasting in the digital era, and to create a trust fund to make such funding assured and permanent, and to move public broadcasting out of the whipsaw of the political arena. Many members suggested that funding mechanisms for support of noncommercial, public broadcasting should include fees paid by commercial broadcasters. In January, the Benton Foundation, the Project on Media Ownership, the Media Access Project, the Center for Media Education and the Civil Rights Forum released polling data (../Policy/TV/edtv.html) that points to strong public support for such a proposal. In fact, 79% of Americans support a requirement that broadcasters to pay 5% of their profits into a public broadcasting fund.

Conclusion

©Benton Foundation, 1999
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The Digital Beat is a free online news service of the Benton Foundation's Communications Policy & Practice program <../cpphome.html>. Our aim is to equip you to be engaged in the public debate on the public interest in digital television and the Internet. We will chronicle the action at the Federal Communications Commission and in Congress, the efforts of public interest advocates, the work of nonprofit organizations and government agencies to create new public services, technology developments, and communications trends.

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Media Access Project (MAP) <www.mediaaccess.org>, is the only freestanding public interest law firm which is primarily devoted to representing the public's interest on electronic media issues through policy advocacy at the Federal Communications Commission and the Courts, advocacy in the media and other public fora, and day-to-day counseling of civic organizations and individuals.

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