Is selfregulation the answer

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Is self-regulation the answer ?

• Guy Berger

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A tale from the tip of Africa

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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)

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External regulation

• SABC reports on compliance with
• Charter (as set out in Act of parliament)
• freedom reflect S. African views languages
• Icasas Code of Conduct
• for all broadcasters
• deals with generic issues (eg. Watershed)
• Own Code of Practice (reqd by law)
• Editorial values, what SABC strives to do

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SABCs 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

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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.

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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.

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What SABC wanted
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No new license conditions!

• Unnecessary already highly regulated and
  self-regulated.
• Illegal because conditions would
• Infringe free expression rights
• Usurp role of parliament-appointed Board

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More conditions would also be

• Endangering
• Of delicate economic model which needed
  flexibility in face of competition
• Redundant
• SABC already doing good PBS
• Globally exceptional
• Special nature of PBS internationally

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As Icasa summed up SABC case

• We determine HOW we meet obligations you
  determine WHETHER.

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Commercial TV critics weigh in
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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

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• 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

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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.

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Tie them up, pin em down!

• 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 SABCs CBS TV as e.tv
• Ban monopoly practices.
• Conditions determine quotas and not content
  therefore no free speech infringement.

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Commercial radio adds kicks
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• Icasa cant 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

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Civil society speaks
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• 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
• Cant treat SABC as a single collective entity
• Parity needed with other broadcasters indeed
• not just parity but more obligations!

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SABC rises from the floor
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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.

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• 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.

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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
• Corporations fragile revenue base.

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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.

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Regulators ruling

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Power to regulate

• Role more than rubberstamping SABCs proposal.
• Legally empowered to impose conditions that are
  appropriate and necessary (in the sense of being
  reasonably needed) in order to reflect SABCs
  obligations.
• No violation of free expression.
• Silence on fair competition aspect.

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Saints in the detail

• Conditions will help give effect to SABCs
  obligations in respect of PBS and CBS.
• Function is to
• Translate laws broad obligations many
  expressed in vague and aspirational terms
  into more specific obligations.
• Provide with reasonable certainty sufficient
  guidance to the people affected.

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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.

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SABC radio pinned down

• public radio many obligations news, childrens
  content and drama.
• SABC commercial radio really only news.
• all stations can take unlimited ads.

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SABC resigns itself to regulation

• Acceptance, but asks for more incremental or
  gradual approach to implementation.
• Repeats that conditions are potentially damaging
  to the SABCs future stability and viability.

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Assessment

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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
  SABCs claims of successful results.

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Regulations 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.

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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.

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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.

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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? Well see.