1 Regulating public service broadcasting: the Cases of the Czech Republic, Slovakia and Ireland

PhDr. Monika Metykov, Ph.D.

Abstract: the thesis opens with a discussion of academic approaches to public service broadcasting and establishes three overarching themes that are crucial for further analysis: public service broadcasting and democracy, the material base of public service broadcasting and the independence of public service broadcasting from both the state and the market. The thesis pursues the three themes in relation to legislative and regulatory approaches within the European Union, the Czech Republic, the Slovak republic and the republic of Ireland. The analysis looks particularly at regulatory justifications (effective communication, diversity, economic interest and public interest) and mechanisms in each of the analyzed countries and relates these to the more abstract overarching themes. In all the analyzed cases the regulation of public service broadcasting is in line with the more general regulatory trend of deregulation. The analysis of public service broadcasting regulation within the European union and the council of Europe shows that in the two organizations there is a certain commitment to maintaining the duopoly of private and public service broadcasters yet concrete measures related to public service broadcasting are left in the jurisdiction of member states and the overall audiovisual policy (implemented in particular by the EU) is driven by economic (rather than public) interest. In relation to the three analyzed countries the most important and also the most obvious finding is that in all the three countries legislators do not have a consistent, comprehensive and workable vision of the role of public service broadcasting in contemporary democratic societies and regulation is often driven by partial interests (economic and political) rather than by public interest

2 INTRODUCTION In November 1989 the Velvet Revolution swept through Czechoslovakia and marked the beginning of fundamental transformations in all spheres of our lives. Broadcasting was no exception. The process of transforming the state-run institutions of Czechoslovak Television and Czechoslovak Radio and the appearance of privately-owned media on the Czechoslovak market has hardly started when Czechoslovakia ceased to exist on 1 January 1993. Since then both republics witnessed a succession of governments, entry into NATO and the European Union but public service broadcasting has remained one of the most contested issues. Between the years 1990 and 2005 in the two republics altogether as many as twenty-nine acts and decrees directly related to public service broadcasting were passed, the Slovak public service television was in September 2005 led by its 14th director general and at the very end of the year 2000 thousands of Czechs walked to the streets of Prague to publicly demonstrate their concern about the independence of Czech public service television. The social, political, cultural and economic changes shaped public service broadcasting and in turn public service broadcasting shaped these. It has been argued widely that not only public service broadcasting but media as such play important roles in democracies. According to classical liberal theory media create a space between government and society in which individuals exercise control over the state. To understand and facilitate the critical roles of media is of particular importance in new democracies that experienced decades of state control over the media. It is, however, in particular public service broadcasting that was from its birth assigned to inform, educate and entertain to use John Reiths often quoted words uttered at the founding of the British Broadcasting Corporation the nation independent of economic and political pressures. The extent to which these roles are mis/understood in the case of public service broadcasting in former communist countries has been the subject of only a few studies. It is without doubt that during the last fifteen years some of the developments in the sphere of broadcasting in the Czech Republic and in Slovakia helped bring the former state-run broadcasters closer to the public service ethos yet it has been frustrating to see successive postcommunist governments making decisions on broadcasting that clearly demonstrate a lack of understanding of the role of public service broadcasting and a preference for maintaining political control over broadcasters. Many of the interventions in the sphere of broadcasting lack a systemic, comprehensive and long-term approach. In this respect a number of aspects of public service broadcasting literally offer themselves for study and analysis. This dissertation concentrates on the normative framework of public service broadcasting, on legislative measures that were developed between 1989 and 2005 in the Czech Republic and in Slovakia.

3 The sheer volume of legal instruments that were developed and deployed in relation to public service broadcasting in the two republics is striking and even more so is the fact that there is no systematic analysis of this framework available at the moment. Studies concern only certain legislative measures but do not pay attention to the legal framework in its entirety. What kind of public service broadcasting do these instruments facilitate? What roles do they assign it? And how (if at all) did these roles change? What material resources do legal measures attribute to public service broadcasters? How do legal stipulations ensure the independence of public service broadcasting? These are some of the questions that the analysis attempts to address. Obviously, it would be a major shortcoming to explore only the legal framework for public service broadcasting in the Czech Republic and Slovakia without taking into account the larger and increasingly more important supranational regulatory context. Originally the dissertation was set up to compare regulation related to public service broadcasting not only in the two successor states of Czechoslovakia but also in the United Kingdom. However, in the autumn of 2004 I took up a Marie Curie fellowship at Dublin City University in the Republic of Ireland and the study of Irish public service broadcasting made me change my mind. A comparison with regulation on public service broadcasting in the Republic of Ireland appeared to be much more fruitful. The reasons for this are numerous: in size and geopolitical importance Ireland is closer to the Czech Republic and Slovakia, RT (the Irish public service broadcaster) is exposed to similar approaches from the government (e.g. in terms of material resources), Irish regulators face similar choices in relation to protecting domestic production and the Irish language in the context of increasing competition from major global media players yet the legislative framework could hardly be more different. The analysis of the legislative framework, as I demonstrate in the relevant chapters, provides a series of lessons for policy makers in all the three countries. In its final form thus the dissertation analyzes public service broadcasting regulation in the Czech Republic, Slovakia and the Republic of Ireland. However, as I already mentioned, it is virtually impossible to provide an in-depth account of such regulation and disregard its supranational dimension. Due to this the dissertation also discusses public service broadcasting regulation within the European Union. The dissertation attempts to cover in particular developments that occurred from the 1990s to approximately May 2005 when the analysis was completed. The time frame, however, is not absolutely rigid, in case the clarity of the argument required going further in the past this was done (e.g. in the case of Irish legislation it was necessary to go back to the Broadcasting Authority Act of 1960). It is perhaps needless to stress that whilst the work on this dissertation was at its last phase in May 2005, legislation related to public service media is constantly being developed. For example,

4 between the time when the dissertation was completed and it was printed (i.e. May and September 2005) a new act was passed in the Czech Republic (at the beginning of September 2005) that increased the licence fee payable for public service television broadcasting and at the same time decreased the amount of advertising to be broadcast by the Czech Television. In Slovakia, on the other hand, the heads of the two public service broadcasters (the Slovak Television and the Slovak Radio) in late August 2005 suggested that the new act on licence fees (which they prepare together with the Slovak Ministry of Culture) should not base the payment of licence fee on the ownership of a television or a radio set but rather on the consumption of electricity (i.e. everyone who uses electricity would pay a licence fee). Chapters I and II of the dissertation provide the theoretical framework for the case studies on public service broadcasting regulation in the selected countries. Chapter I relates Habermas concept of the public sphere to public service broadcasting and identifies three key features of the public sphere that are also crucial for an analysis of public service broadcasting, namely: its relationship to democracy (it is thus distinctly political and not economic); the required material resources for its functioning; and its independence from both the state as well as the market. The chapter moves on to the outline of concrete systems of public service broadcasting and discusses the most recent changes and challenges facing public service broadcasting. Chapter II further develops the ground for the case studies as it concentrates on broadcasting regulation and general trends that have characterized it during the last fifteen years. It considers in particular deregulation and technological convergence and their impact on broadcasting regulation. The chapter discusses economic characteristics of broadcasting (and media in more general) as these are very specific (in particular because broadcasting is a public good as well as a merit good) and regulatory approaches should reflect them. The chapter concludes with a consideration of regulatory justifications and mechanisms and draws attention to the distinction between regulation in the public interest and in corporate interest. Chapter III discusses the first case study public service broadcasting regulation in the European Union. The supranational dimension of broadcasting regulation has become increasingly important, the scope of the dissertation does not make it possible to discuss more of these organizations thus because all the selected countries are EU member states I devote this chapter to a discussion of EU public service broadcasting regulation. It must be stressed at this point that there is very little EU broadcasting regulation that relates directly to public service broadcasting, importantly in 1997 a protocol on public service broadcasting (Protocol [No. 32] on the system of public broadcasting in the Member States) was annexed to the Treaty on European Union (Treaty of Amsterdam). The protocol leaves public service broadcasting within the jurisdiction of individual member states but does not exempt it from EU trading rules and competition regulation

5 (in respect of public service broadcasting state aid is of key importance). The chapter discusses other policy documents as well, most importantly Directive 89/552/EEC Television without Frontiers of 3 October 1989 which establishes a common European audiovisual market. Apart from the European Union the chapter also considers public service broadcasting policies advanced within the Council of Europe. Of these the most important one is European Convention on Transfrontier Television of 5 May 1989. The chapter clearly shows that the regulatory goals and mechanisms as well as the implementation of policies differ significantly between the two supranational European organizations. The chapter very briefly considers another European organization, the European Broadcasting Union, which draws together European public service broadcasters and is in effect their most important industrial body. Chapter IV incorporates the case study on the Czech Republic and the Slovak Republic and maps the development of regulation related to public service broadcasting since the fall of communism in 1989 to developments as late as May 2005. The chapter also discusses major events and political interventions in broadcasting thus in the case of the Czech Republic it deals with the case of TV NOVA and the Christmas 2000 strike at the Czech Television, in the case of the Slovak Republic then with the de facto state control over public service broadcasting under Prime Minister Vladimr Meiar. It becomes clear from the chapter that the development of public service broadcasting regulation in the two countries is not close to being accomplished but rather a continuous process is involved and indeed it is difficult to make predictions about future developments. Key legislative measures were being passed at the very last stages of the writing of the dissertation and immediately after its completion. The case of regulation of public service broadcasting in the Republic of Ireland is dealt with in Chapter V. The analysis goes back in time further than in the cases of the previous two countries as important historical contexts that had a direct impact on broadcasting regulation (in particular on broadcasting censorship) had to be explained. Public service broadcasting policy in the Republic of Ireland has been influenced by issues linked to competition which is much fiercer than in the cases of the Czech Republic and Slovakia due to the dumping of British media products on the Irish market as well as those related to the protection of the Irish language and the Irish culture. The case studies covered in the dissertation are undoubtedly rather complex and the scope of the dissertation has as always been a limiting factor. There are some clear findings that the dissertation provides and these are undoubtedly relevant for policy makers, in particular in relation to possibilities of decreasing political influence over public service broadcasting and of ensuring its financial stability. There are, however, a number of questions that are still open and will await future analysis, these include the future impact of digitalization on public service broadcasting.

6 CHAPTER I: Public Service Broadcasting I. The Public Sphere Jrgen Habermas seminal The Structural Transformation of the Public Sphere1 (1989; German original published in 1962) provides a basis for discussions of the public sphere/s in contemporary societies. In the following I attempt to summarize Habermas thesis and place it within the framework of recent debates on the public sphere/s2 and media. In his historical narrative informed by the Frankfurt School tradition Habermas traces the development of the bourgeois public sphere and its consequent transformation. According to him, the bourgeois public sphere reached its peak in the early mid-19th century. Habermas argues that the public sphere emerged as a space in which private individuals came together as a public 3 to use their own reason to discuss the power of the state. The bourgeois public sphere thus came into existence as a result of struggle against despotic states. The development of competitive market capitalism led to the creation of institutions within civil society that occupied a space distinct from both the economy and the state. These institutions included newspapers, debating societies, salons and coffee houses. Although Habermas understands the bourgeois public sphere of the early 19 th century as an ideal model, a peak of rational discussion, he identifies problems with its universalism. To be part of the public at the time meant to belong to the property-owning class and to be literate. Habermas also points out that the emergence of the bourgeois public sphere went together with an institutionalization of privateness, with the constitution of a clear distinction between public and private. With the height of laissez-faire capitalism the public sphere underwent significant, and according to Habermas detrimental, changes. The decline of the public sphere is connected with
1

In the Czech language the book was published in 2000 under the title Strukturln promna veejnosti. Hans Kleibstber (2001) deals in detail with the question of translating the German term ffentlichkeit as public sphere and the implications of the use of the term within the European context. He points out that significantly the English term public sphere when compared to the original ffentlichkeit acquires the character of a spatial metaphor. 2 In literature dealing with the public sphere there appears to be a prevalent use of the term in singular with a definite article. However, as I argue in this chapter, we are actually dealing with a multiplicity of public spheres in contemporary societies. 3 The scope of my argument and the current chapter make it impossible to discuss in detail the distinction between private and public. Drawing upon Jeff Weintraubs classification Bruce Robbins (1993) outlines four ways in which public is customarily opposed to private. The first one is a liberal-economist model in which the state is defined as the public and the market economy as the private. The second model, also called republican virtue, is a model of the public as a community and citizenship, distinct both from the state and the market. The third is a sociability model that emphasizes symbolic display and theatrical self-representation but does not deal with collective decision-making or state power. The final model that he offers opposes the private sphere defined largely as the domestic with publicness defined mostly as the economy of wage earners. These distinctions, according to Robbins, point to a number of crucial issues. First of all, the capitalist economy, which figures as both private (for l iberals) and public (for feminists), thus seems to be a crucial place both where the public/private opposition breaks down, and where it demonstrates its resilience as well (Robbins, 1993:xiv). Secondly, if we accept the public/private divide as a socia l construction that is contested and renegotiated over time (Peiss as quoted in Robbins 1993: xv) then it becomes clear that the line between state and market is also constantly negotiated. Moreover, no sites are inherently or eternally public the lin es between public and private are perpetually shifting, as are the tactical advantages and disadvantages of finding oneself on one side or the other (1993: xv).

7 rapid social developments, industrialization, urbanization, growth of literacy and popular press and other related factors. These changes, to use Dahlgrens (1991:4) summary, resulted in a blurring of the distinction between public and private in political and economic affairs, a rationalization and shrinking of the private intimate sphere (family life) and the gradual shift from an (albeit limited) public of political and cultural debaters to a public of mass consumers. The mutual penetration of state and society (which Habermas terms refeudalization) dissolved a private sphere, also the basis for a relatively homogeneous public composed of private citizens engaged in a rational-critical debate was threatened and competing organized private interests invaded the public sphere. The rational-critical debate that characterized the bourgeois public sphere at its peak was replaced by consumption (or such a debate is entirely shaped by the media) and for Habermas it continues to exist as a public sphere in appearance only. Further changes in the public sphere followed with the emergence of the welfare state. Habermas argues that public opinion is no longer the result of rational debate but the outcome of media engineering. The public sphere has become a platform for advertising and the press has become mere trade. In order to restore the function of the public sphere, Habermas proposes a discourse-centred theory of democracy, according to which a majority decision must be a rationally motivated but fallible result of a discussion concerning the judicious resolution of a problem, a discussion that has come temporarily to a close because coming to a decision could no longer be postponed (1997: 450). Thus a political public sphere would be characterized by at least two crosscutting processes: communicative generation of legitimate power and a deployment of media power to procure mass loyalty, consumer demand and compliance with systematic imperatives (1997: 452). This brief summary of Habermas arguments does not by any means aim at providing a full account of his thesis. Rather, my aim is to draw attention to the role that Habermas attributed to mass media in the disintegration of the public sphere and to discuss whether he understands mass media as playing any other than a negative/destructive role in relation to the public sphere. In the summary I have already alluded to Habermas views on the press, he identifies a particular problem which is a consequence of the conflation of journalism and literature and results in conjuring a peculiar reality, even a conflation of different levels of reality: instead of doing justice to reality, [journalism] has a tendency to present a substitute more palatable for consumption and more likely to give rise to an impersonal indulgence in stimulating relaxation than to a public use of reaso n (1989: 170). However bleak this picture may seem, it was to get worse with the emergence of radio and television. With the arrival of new media [radio and television] the form of communication as such has changed; they have had an impact, therefore, more penetrating (in the strict sense of the word) than was ever possible for the press. Under the pressure of the Dont talk back! the conduct of the

8 public assumes a different form. In comparison with printed communications the programs sent by the new media curtail the reactions of their recipients in a peculiar way. They draw the eyes and ears of the public under their spell but at the same time, by taking away its distance, place it under tutelage, which is to say they deprive it of the opportunity to say something and to disagree. The critical discussion of the reading public tends to give way to exchanges about tastes and preferences between consumers even the talk about what is consumed, the examination of tastes, becomes part of consumption itself (ibid.: 171).

In more concrete terms Habermas identifies the degree of economic concentration and technological-organizational co-ordination in media as a threat to the critical functions of publicist institutions. In respect of this problem he points out that due to the high degree of concentration, governments often opted for putting media under public control rather than private ownership. Thus the original basis of the publicist institutions, at least in their most advanced sectors, became practically reversed. According to the liberal model of the public sphere, the institutions of the public engaged in rational-critical debate were protected from interference by public authority by virtue of their being in the hands of private people (ibid.: 188). Habermas concept of the bourgeois public sphere and its transformation has been criticized mainly on three grounds (Dahlgren, 1991, Garnham, 1990, Fraser, 1993). Firstly, although

Habermas admits the exclusionary nature of the bourgeois public sphere in terms of class, he omits the question of gender altogether. Secondly, he remains silent on alternative public spheres. In this respect the work of Oskar Negt and Alexander Kluge (Jameson, 1993) provides an interesting comparison, with their notion of a proletarian counter-public sphere. However, Polan (1993) convincingly argues that Negt and Kluge tend to idealize this counter-public sphere similarly to Habermas idealization of the bourgeois public sphere. And finally, as Peter Dahlgren points out, Habermas Structural Transformation of the Public Sphere is characterized by an absence of reference to the complexities and contradictions of meaning production as well as to the concrete social settings and cultural resources at work (1991:6). Habermas (1997) himself acknowledges that some of his arguments need revision and in particular that his diagnosis of a unilinear development from a politically active public to one withdrawn into a bad privacy, from a culture-debating to a culture-consuming public is too simplistic (1997:438). Yet, he maintains that the bourgeois public sphere as it existed in the early 19th century provides an ideal model, arguing that a single political public sphere that is built on the principles of communicative action can serve contemporary societies. Nicholas Garnham (1986) stresses two shortcomings in relation to Habermas understanding of the public sphere. First, the relation of the concept to the historical reality of class

9 division and class politics, he, however, points out that despite the validity of this criticism we do not need to give up on the universalistic possibility of a general public sphere. Secondly, argues Garnham, Habermas conceives of public sphere on an individualistic basis, an assumption, which seems to me wholly unrealistic, that all participants possess complete information and engage in all debates, (ibid.: 44) consequently the concept cannot at its present form deal with the political problem of mediation and equally there is no space left for the social role and power of expertise and expert knowledge nor for the role and social interests associated with knowledge broking. Thus it becomes difficult to handle the problem of the role of those who in fact manage the conduct of the information-gathering and debate which is the Public Sphere's raison d'tre, namely, in particular, journalists and politicians themselves. It is a further result of this weakness that the theory has no place for what I regard as an essential and central organizing institution within the Public Sphere, the political party (ibid: 45). Despite these criticisms Garnham maintains that three key components of Habermas thesis are essential in an understanding of the public sphere/s in contemporary societies. Firstly, Habermas focuses on the indissoluble link between the institutions and practices of mass communication and the institutions and practices of democratic societies (1997:360). Secondly, he stresses the necessary material resource base for any public sphere (1997:360) and finally Garnham praises Habermas for his avoidance of the simple dichotomy of free market versus state control in his distinction of the public sphere from both state and market that enables him to discuss the question of threats to democracy from both of them. Garnham believes that these arguments have particular relevance in contemporary societies as the emergence of global markets as centres of private economic power undermines the nation state and new public spheres and political institutions are needed for the control of the global polity and economy. Moreover, he goes on to argue, public broadcasting institutions are themselves undergoing changes with the development of new media and the progressive destruction of public service media.4 Nancy Frasers critique (1993) of Habermas argument relates closely to the issues raised by Garnham. She argues that revisionist historiography questions four assumptions central to Habermas, bourgeois masculinist (1997: 117), understanding of the public sphere. Firstly, it challenges the assumption that societal equality is not a necessary condition for political democracy (1997:117). Secondly, it questions that a multiplicity of public spheres is a step away from democracy. Thirdly, it undermines the assumption that discourse in public spheres is devoted solely to public good, leaving private interests and issues undesirable. And finally, the assumption

Another strength of the concept of public spheres lies, according to Garnham (1986: 43) in its identification of rationality and universality as key in the democratic political process and the aspiration to resist the reduction of politics to either simply the clash of power interest, in particular class forces, or to questions of state adminis tration.

10 that a functioning democratic public sphere requires a sharp separation between civil society and state is not necessarily a valid one. Regarding the notion that rational debate in the public sphere should promote public good, Fraser suggests that there should be no restrictions on topics debated in the public sphere as there is no guarantee that the outcome of a deliberative action will be the discovery of common good. One of the central questions that have been explored by critics of Habermas argument is whether there is or have ever been a single public and consequently a single public sphere. Bruce Robbins convincingly argues that historical narratives (Habermas among them) in which an idea of a lost public is evoked miss a crucial point. The appearance of the public in these historical narratives is something of a conjuring trick. For whom was the city once more public than now? Was it ever open to the scrutiny and

participation, let alone under the control, of the majority? Was there ever a time when intellectuals were really authorized to speak to the people as a whole about the interests of the people as a whole? If so, where were the workers, the women, the lesbians, the gay men, the African

Americans? (Robbins, 1993: viii; original emphasis). More insight can be gained if one moves away from the universalizing ideal of a single public an d attends instead to the actual multiplicity of distinct and overlapping public discourses, public spheres, and scenes of evaluation that already exist, but that the usual idealizations have screened from view (1993: xii). Fraser argues that a single public sphere does not provide an arena for subordinated groups in which they can discuss their needs, objectives and strategies, they would have no venues in which to undertake communicative processes that were not, as it were, under the supervision of dominant groups (Fraser 1997:123). The existence of multiple public spheres would enhance participation in the sense of being able to speak in ones own voice, and thereby simultaneously to construct and express one's cultural identity through idiom and style (1997: 126). Moreover, public spheres are not spaces of zero-degree culture, they consist in culturally specific institutions, including, for example, various journals and various geographies of urban space. These institutions may be understood as culturally specific rhetorical lenses that filter and alter the utterances they frame; they can accommodate some expressive models and not others (1997:126). Privileging a single seemingly all-inclusive public sphere thus results not only in a reduction of these diverse modes of expression but indeed in a privileging of a dominant mode. In her conclusion Fraser states that what we ultimately need is a critical political sociology of a form of public life in which multiple but unequal publics participate (Fraser, 1997:128).

11 John Keane argues that there are empirical reasons alone why the concept of public spheres should be brought to bear on phenomena as disparate as computer networking, citizens initiatives, newspaper circulation, satellite broadcasting, and children playing video games. Public spheres can and do develop within various realms of civil society and state institutions, including within the supposed enemy territory of consumer markets and within the world of power that lies beyond the reach of nation-states, the Hobbesian world conventionally dominated by shadowy agreements, suited diplomacy, business transactions, and war and rumours of war (Keane 1995:16). While I agree with Keanes suggestion that multiple public spheres actually exist in contemporary societies, I would argue that it is not enough to explore existing public spheres in a redemptive fashion and categorize them (Keane distinguishes among micro, meso and macro public spheres) rather one needs to theorize and explore the power relations and conflicts within them and among them as well as how these are translated into political action. I agree with Nicholas Garnham who argues that by defining public spheres Keane abandons the problem the term was designed to address namely how can the promise of democracy be realized (1995:23). It is clear from the above that media are in the centre of discussions about the public sphere/s, yet there are also larger questions at stake such as allocation of resources, equality and justice5. As Todd Gitlin rightly points out if it be argued that a single public sphere is unnecessary as long as segments constitute their own deliberative assemblies, such an argument presumes a rough equivalence of resources for the purposes of assuring overall justice (1998:173).

II.

Public Sphere and Public Service Media

John Keane suggests that in contemporary societies the public sphere ideal is linked to the institution of public service broadcasting, which is seen to have an elective affinity with public life and to be the best guarantee of its survival in the era of state-organized, consumer capitalism (1995:3). Carpignano et al. argue that in the debates about mass media, politics and the public
5

In relation to the disadvantaging of subordinate social groups, Nancy Fraser argues that two senses of private often function ideologically to limit the boundaries of the public sphere, the first sense relating to private property in a market economy and the second relating to domestic private life. She argues that due to these particular senses the result is to enclave certain matters in specialized discursive arenas and thereby to shield them from broadly based debate and contestation (Fraser, 1997:132). Thus, according to Fraser, even if formal obstructions in participation in public spheres are lifted, participation may be hedged by conceptions of economic privacy and domestic privacy that delimit the scope of debate. These notions, therefore, are vehicles through which gender and class disadvantages may continue to operate subtextually and informally, even after explicit, formal restrictions have been rescinded (Fraser, 1997: 132). Iris Marion Young argues that the modern understanding of the public, creates a conception of citizenship which excludes from public most particular aspects of persons (1990: 120). She also points out that the concept of a heterogeneous public implies two political principles: (a) no persons, actions, or aspects of a persons life should be forced into privacy; and (b) no social institutions or practices should be excluded a priori from being a proper subject for public discussion and expression (1990:120).

12 sphere there is a common ground, a mutual acceptance of basic premises, shared by participating politicians, conservative ideologues, and leftist cultural critics. Its unquestionable truism is that the mass media today are the public sphere and that this is the reason for the degradation of public life if not its disappearance (1993:93). Charles Husband argues that mass media are a core element in civil society and a fundamental prerequisite for the promotion of civic trust in complex multi-ethnic societies (1998: 136). In classical liberal theory media are understood as crucial in providing the space between government and society in which private individuals exercise formal and informal control over the state: formal control through the election of governments and informal through the pressure of public opinion (Curran, 1991:29). The media play a central role in this process as they distribute information as well as facilitate the formation of public opinion and provide an independent forum for debate. The media are thus the principal institutions of the public sphere or, in the rhetoric of nineteenth-century liberalism, the fourth estate of the realm (Curran, 1991:29).6 It thus seems to be a widely accepted fact that mass media indeed are the public sphere.7 The focus of this dissertation is broadcasting which was in Europe originally conceived as a service to the public, the spectrum was understood as a public natural resource (Schiller in Feintuck, 1999: 26). According to Hall (1993) the public service idea clearly has its basis in the claim that there is such a thing as the public interest a social interest at stake in broadcasting (1993: 24, original emphasis), he goes on to identify some of the roles of broadcasting in modern societies (source of knowledge, creator of a discursive space, a key pass between the governed and the governors) to argue that access to broadcasting has thus become a condition, a sine qua non, of modern citizenship (ibid: 25, original emphasis). From the very beginning thus an affinity was identified between media and the public, in order to clarify it I briefly discuss the notion of public interest8 in relation to communication. According to McQuail the origin of the term can be found in economic regulation, Mitnick (in McQuail, 1992: 21) derives it from medieval social theory which led to ideas of economic

Curran (1998) identifies a number of shortcomings with this argument. Firstly, it offers a simplistic view of society as an aggregation of individuals and of government as the seat of power. The role of the media is basically understood as policing the relationship between the individual and the state. Secondly, it does not take account of the ways in which power is exercised through capitalist and patriarchal structures. And finally, classical liberal theory ignores ways in which these interests became organized and collectivized and thus has nothing to say about the ways in which the media can invigorate the structures of liberal democracy. 7 Tod Gitlin observes that the metaphor the public sphere is first of all, singular: it is the sphere, not a sphere (1998:168, original emphasis). Media, however, present only one public sphere among others. Some commentators prefer to use the term mass-media public sphere for a more precise identification (see for example Downey and Fenton, 2003). The distinction between the public sphere and public spheres, however, is not crucial for my argument. 8 McQuail (1992:20) rightly points out the complexities related to the use of the term, yet he agrees with the view that even if we were to abandon the concept, we would not evade the complexities and problems which are associated with the idea of a public interest. These arise in almost any political or legal debate on issues of wide or deep public significance.

13 justice supportive of collective control over market forces.9 In modern societies we find examples of sources that are regulated in the public interest,10 these include basic infrastructure as well as basic telecommunication services. Telecommunication services are part of businesses that are considered to be affected with a public interest (Melody in McQuail, 1992: 21) due to the essential nature of the service, its tendency to monopoly and the requirement of universal accessibility. McQuail, however, notes that difficulties with applying the term public interest to an area like communication have their source in misunderstandings according to which features of mass communication are essential and whether interferences with free market mechanisms are justified in order to secure these. The problematic of identifying public interest in communication is demonstrated by difficulties with finding its place in typologies of public interest. McQuail (ibid: 22-23) draws on Helds variants of public interest theory which distinguishes three of them. The first, preponderance theory, understands public interest in a majoritarian way, i.e. it aims at maximizing the number of individual preferences. The second theory, common interest theory, refers to cases where the interests in question are ones which all members are presumed to have in common, with little scope for dispute over preferences (ibid: 23). The third theory Held identifies is the unitary one, which is in effect, the assertion of some absolute normative principle, usually deriving from some larger social theory or ideology (ibid: 23). According to McQuail, it is solely the common interest theory type which can be used for identifying public interest in communication, the other two types are insensitive or irrelevant to some key issues (including popular wants). It is probably not surprising that apart from difficulties with pinpointing public interest in broadcasting there are also various notions about how best to ensure that broadcasting serves the public. The debate over this question has been dominated by two opposing views. On the one hand we find advocates of privately-run commercial media systems who argue that this is the way of guaranteeing independence and the market will serve the interests of all consumers it will provide them with what they want11. However, as for example John Keane argues in The Media and Democracy (1991), unrestricted competition does not necessarily ensure freedom of entry into the market place. Moreover, free market competition restrains the choices of some and advertising, which plays a central role in market competition, reduces the supply of minority interest programmes and tends to shut off non-commercial opinions and non-market forms of life.
9

Interestingly, certain medieval occupations were also recognized as common callings, these included surgeons, bakers, innkeepers etc., they all involved some kind of general (public) interest which overrode the rules of the free market (McQuail, 1992:21). 10 Public goods are goods which cannot be appropriated privately. If such a good is supplied, no member of the collectivity can be excluded from its consumption. Therefore public goods must be produced by institutions other than a market economy and distributed by a mechanism different from markets (Berger as quoted in Raboy 1996:n7) 11 I deal with economic characteristics of broadcasting in more detail in Chapter II.

14 In contrast, we find proponents of the view that public service media can best serve the interests of consumers as well as citizens. James Curran (1998) draws upon the work of neoKeynesians critical of the free market in broadcasting. This critique states that public service media serve public good without incurring additional costs, that all advertising-funded markets are imperfect as they are biased against quality (favour high ratings as opposed to highly rated programmes) and favour majority programmes which renders them insensitive to intensities of demand. Moreover, the emergence of new technologies actually increases the need for public control, as one source of monopoly (spectrum scarcity) has been replaced by the monopoly of economies of scale and scope (Curran, 1998:190). Curran very rightly points out that an alternative approach to the question of public service broadcasting takes into account the fact that people are not only consumers but also citizens within a democratic system with a right to be adequately informed about matters relating to public interest. A right, Curran argues, that is best guaranteed by public service broadcasting because it gives due attention to public affairs, and is less dominated by drama and entertainment than market-based broadcasting generally is (Curran, 1998:190). Thus far my argument has involved theoretical issues concerning public service broadcasting and its proposed roles. Although in the following section I outline three types of public broadcasting systems currently existing in Western democracies it has to be noted that there are certain features that are shared by public service broadcasting in general. According to Siune and Hultn the old order of public broadcasting in Europe of the early 1990s shared the following defining elements: some form of accountability to the public, some element of public finance,12 regulation of content, universal service (in the territorial sense) and regulated entrance (i.e. limits to the number of competing channels) (1998:24-25). In more abstract terms Garnham identifies the strengths of public service broadcasting in the following: (a) [it] presupposes and then tries to develop in its practice a set of social relations which are distinctly political rather than economic, and (b) at the same time attempts to insulate itself from control by the state as opposed to, and this is often forgotten, political control (1986: 45). The now defunct Broadcasting Research Unit (from the UK) identified the principles of public service broadcasting as the following: universal accessibility (geographic); universal appeal (general tastes and interests); particular attention to minorities; contribution to a sense of national identity and community; distance from vested interests; direct funding and universality of payment; competition in good programming rather than

12

In respect of the financing of public service broadcasting from commercial sources there are two clearly identifiable schools, one of them supports such activities (the pragmatic approach), the other does not (the purist approach). There is also a third approach, conceptual and structural, according to which certain broadcasting activities can be commercially financed while others cannot. (Raboy 1996: 8) See also Blumler (1993) in relation to policy issues that would safeguard integrity when pragmatic and purist considerations are in clear conflict.

15 for numbers; and guidelines that liberate rather than restrict programme makers (as quoted in Raboy , 1996: 6). James Curran (1991) distinguishes three types13 of systems of public service media: Social devolutionary: We find this type for example in Italy and the Netherlands. According to McQuail (1992), it can be characterized by external diversity, i.e. various channels or time blocks are allocated to various interest groups within the society. To make the example clearer, I provide a brief description of the Dutch public broadcasting system which reflects the Dutch social system that can be summarized in one word: pillarization. Dutch society between the beginning of the twentieth century and the mid-1960s (and notably the first 20 years after the Second World War) was a principal example of segmented pluralism, with social movements, educational and communication systems, voluntary associations and political parties organized vertically (and often cross-cutting through social strata) along the lines of religious and ideological cleavages (Brants and McQuail, 1997:154). The Dutch public broadcasting system works on the principle of allocating access to associations with different outlooks and priorities. According to the law a broadcasting association should aim, as laid down in its statutes, to represent some clearly stated societal, cultural, religious or philosophical stream and to direct itself in its programming to the satisfaction of some actively present social, cultural, religious or philosophical needs (as quoted in McQuail, 1992:100). McQuail argues that the idea of diversity as expressed in the Dutch broadcasting system mainly relates to an external and exclusive diversity in which different voices and outlooks have their own separate channels, rather than to the more commonly encountered internal diversity, according to which all tastes are catered for by channels serving large, heterogeneous audiences (McQuail, 1992:101). In practice, the allocation of broadcasting time was based on the number of members and/or subscribers to the broadcasting magazines produced by the different organizations (Brants and McQuail, 1997:155). Dutch public service broadcasting is financed by licence fee, advertising and membership dues and magazine subscription. Commercial broadcasting was legalized in 1990. Liberal corporativist: This type exists for example in Norway, Finland, Denmark and Germany. The basic principle is to ensure the participation of various interest groups in the supervisory and regulatory organs which is understood as a guarantee of diversity. In Germany the responsibility for broadcasting lies with the states of the Federal Republic. This results in a
13

Cf. Jakubowicz who works with a different categorization of public service broadcasting systems. Out of his categorization probably the most relevant for my argument is his attrition model, which he fears will gradually dominate post-communist countries. The following characterize this model: PSBs are not allowed to adopt digital technology, develop new channels or services, or indeed operate on the internet in any significant way. This model, proposed by some business quarters, would result in PSBs finally sharing the fate of the dinosaurs as they failed to adapt to new circumstances (2002: 7).

16 uniquely decentralized broadcasting system with production centres in every region of the country (Kleinsteuber, 1997:85). All broadcasting corporations are governed by an independent broadcasting council whose representatives are supposed to reflect the socially relevant groups of society (Kleinsteuber, 1997:87). The representatives are either elected in the parliament or are delegated by various groups (including political parties, churches and labour organizations). Despite these provisions political parties have been able to gain influence in the Broadcasting Councils because German parties are relatively strong in all segments of the political and social system and penetrate practically all of the socially relevant groups (Kleinsteuber, 1997:87). In the mid-1980s commercial competition challenged the public

broadcasting system and a dual system was established. Private broadcasting is regulated by special licensing and supervisory institutions. Public service broadcasting is mainly financed by a monthly licence fee and advertising revenues (limited to twenty minutes each weekday). public service: This type is characterized by a high degree of internal diversity, i.e. the needs of various interest groups are catered for by a large scale of programmes on the same channels. This system is typical, for example, of the United Kingdom of Great Britain and Northern Ireland. The United Kingdom has a highly centralized communications system. Public service media are guided by the principles of high quality programming with a diversity of contents and general accessibility. Public service broadcasting in the United Kingdom tends to be central and national. Independent television companies run local television channels. The British Broadcasting Corporation is regulated by a Board of Governors, consisting of amateur regulators appointed by the government of the day. The BBC is required to commission twenty-five per cent of its programming from independent producers. It is financed by a licence fee and its Royal Charter has to be periodically renewed. Commercial television was introduced in the United Kingdom in 1955 with the establishment of the Independent Television network. In Britain commercial television adopted the traditions of a public broadcast service. It was modelled to redress weaknesses in the BBC, to make broadcasting more sensitive to popular taste, to promote regional culture and to oppose Londonism (Coleman and Rollet, 1997:23). In 1990 the duopolistic arrangements came to an end with the deregulation of the Independent Television network. All commercial television channels in the United Kingdom are regulated by the Independent Television Commission. This brief description of the basic systems of public service broadcasting is not intended as a comprehensive overview but rather it was meant to illustrate that there are varieties within systems of public service broadcasting and that in each of them we can identify mechanisms that aim to ensure that the public is served in the best possible manner and that it is the public interest rather than organized partial interests (political, industrial etc.) that are served. The examples also

17 illustrate that there are various ways of financing public service broadcasting (an issue to which I return later) and that public service broadcasters face competition from commercial broadcasters which has serious implications (not only in relation to the quality of broadcasting provided by commercial and public service broadcasters or the accessibility of broadcasting but also issues such as public aid). There appears to be a prevalent notion that public service broadcasting is going through a crisis, or at least significant changes. Nicholas Garnham argues that our inherited structures of public communication, those institutions within which we construct, distribute and consume symbolic forms, are undergoing a profound change (1990:105). This change, he argues, is

characterized by the ever-increasing power of the market, by a focus on television as an increasingly privatized, domestic mode of consumption, by the increasing gap between the information rich and the information poor and the shift from national to international markets in the informational and cultural spheres (1990:105). John Keane (1991) argues that there are three principal reasons for the decline of public service broadcasting14: fiscal squeeze, legitimacy problems and technological change. He argues that to treat the current public service media as a bulwark of freedom against the confusions and limitations of commercial media is highly problematic, just as it is problematic to think of public service media as the paragon of quality, balance and universal accessibility. The public service claim to representativeness is a defence of virtual representation of a fictive whole, a resort to programming which simulates the actual opinions and tastes of some of those to whom it is directed (1991:122, original emphasis). Nicholas Garnham argues that public service broadcasting is characterized by a failure sufficiently to distinguish between two communicative functions within the public sphere: the collection and dissemination of information, and the provision of a forum for debate (1990:111, original emphasis). Graham Murdock, draws attention to consequences for citizens when he writes that the current public broadcasting system failed to keep pace with the proliferation of political and social discourses, has produced a crisis in the relations between public broadcasting and the viewer-ascitizen. This crisis in representation is exacerbated by the increasing tension between broadcasters, state agencies and government15 (1992: 31).

14

This decline has been understood as a decline in the quality of public service broadcasting as well as a decline in the number of viewers/listeners. 15 In respect of the citizen/consumer divide Habermas makes an interesting point: One may speak of a refeudalization of the public sphere in yet another, more exact sense. For the kind of integration of mass entertainment with advertising, which in the form of public relations already assumes a political character, subjects even the state its elf to its code. Because private enterprises evoke in their customers the idea that in their consumption decisions they act in their capacity as citizens, the state has to address its citizens like customers. As a result, public authority too competes fo r publicity. (1989: 195)

18 Stuart Hall identifies four key reasons16 for the crisis of public service broadcasting: technological, economic, political and social. The technological justification (spectrum scarcity) of the existence of public service broadcasting is no longer understood as valid by many. Further, Hall points out that we live in an economic and political climate of a wholesale assault on the very idea of a public sector (1993: 26-27) amidst the growing social diversity of the audience (or in other words social fragmentation) and the consequent pluralisation of cultural authority, which makes it increasingly difficult for broadcasters to see society as a public at all or to speak to it as if it were still part of a homogeneous, unified national culture (ibid:28). Marc Raboy alerts that problems of financing, mandate, and interpretations of purpose are all indications of a more fundamental problem of political will (1996: 2). He goes on to argue that in relation to the broader policy framework the principal normative question will remain: What should be the public function of broadcasting in a democracy? (1996: 4). Garnham (1986: 39) makes the significant point that the public service, state-regulated model, whether publicly or privately funded, has in effect always been seen, not as a positive good but as an unfortunate necessity imposed by the technical limitations of frequency scarcity. Carpignano et al. relate the crisis of public service broadcasting, among other factors, to a crisis of legitimacy of news as a social institution in its role of dissemination of information about and interpretation of events (i.e., the social construction of public life) (1993:96). James Curran (1998) gives a concise summary of Elihu Katzs arguments about the decline of television as public broadcasting. Firstly, Katz suggests, the multiplication of television channels results in a fragmentation of the public thus television has all but ceased to function as a shared public space. Except for occasional media events, the nation no longer gathers together (Katz as quoted in Curran, 1998:175). Secondly, civic communication is exchanged for high rating programs due to the combined constraints of the new media technology, the new liberal mood, the economic and political burden of public broadcasting, and the seduction of multinational corporation (ibid.). And finally, liberal democracy itself is endangered due to the growing separation between the television system and the nation state and the presumed weakening of national identities because it is in nation states where liberal democracy is practised and national identification is crucial in maintaining involvement in the democratic project. Underlying this argument appears to be a notion that maintaining national unity is a desirable objective. Indeed, Paddy Scannell (1992) praises public service broadcasting for

16

On a more general level Hall argues that what we are facing is indeed a much wider political phenomenon the crisis of a public philosophy from which in the last result, it [crisis of public service broadcasting] cannot be separated. We underestimate at our peril the capacity of this market forces conception to reshape broadcasting, and its ability to enlist popular support among sections of the general audience against the vested interests of the cultural guardians and barons who have dominated broadcasting culture for so long (1993: 26).

19 achieving this objective. Smith (as quoted in Bulck, 2001: 54) alerts us to the crucial role of media in the nation building project. In looking at the role of the media in creating a certain uniformity within the nation-state, we are in essence looking at the process of nation-building, and at how the media are consciously brought into play to construct a national culture and a national community. Nation-states must have a measure of common culture and civic ideology, a set of common understandings and aspirations, sentiments and ideas, that bind the population together in their homeland.

Van den Bulck follows the same line of argument when stating that the system of public service broadcasting can be described as a typical and vital modern institution which played a crucial role in the modern process of nation building. She applies this to the case of Flemish public service broadcasting and demonstrates that it was given the task of contributing to the creation and development of a national identity and culture. As such it had a threefold responsibility: education (as an extension of the national educational system), information (to create a political consciousness) and entertainment (to articulate a national culture) (2001:57). In this respect attention needs to be drawn to Halls identification of one of the threats to public service broadcasting: on the basis of what cultural authority can a public service organisation speak to the nation? (1993:31). He goes on to argue that broadcasting has a major perhaps the critical role to play in this re-imagining of the nation: not by seeking to reimpose a unity and homogeneity which has long since departed, but by becoming the open space, the theatre in this which cultural diversity is produced, displayed and represented, and the forum in which the terms of its associative life together are negotiated. ... This cultural negotiation about the terms on which the centralised culture of the nation can be reconstituted on more openly pluralistic lines, remains broadcastings key public cultural role and one which cannot be sustained unless there is a public service idea and a system shaped in part by public service objectives to sustain it.

However, arguments relating to the role of public service media in nation building or the promotion of coherence should not only address the issue of inclusion in the mediated nation but also the equally crucial question of exclusion (Cole, 1998). The question of exclusion from public spheres is a central one as public discursive arenas are among the most important and underrecognized sites in which social identities are constructed, deconstructed, and reconstructed (Fraser 1993: 140).

20 My brief overview of literature on the crisis of public service broadcasting demonstrates that it has been approached from a number of angles and the sheer volume of literature on the subject is overwhelming. Nonetheless, James Curran (1998) adopts a more cautious attitude when discussing the decline of public service broadcasting. He rightly points out that it is difficult to establish whether arguments provided by those who herald the decline of public service broadcasting hold true because there exists a misleading convention of equating public broadcasters with public service broadcasting. Public broadcasters loss of audience is thus cited as evidence of systemic crisis. But, in fact, private broadcasters that are subject to effective public regulation are as much an integral part of the public service system, in the sense of serving welfare rather than purely market goals, as public broadcasters (Curran, 1998:178).17 He identifies a serious lack in official proclamations about the role of public service broadcasting as in none of these official documents is the facilitation of an open public dialogue or the extension of participation in collective discussion ever recognised as being an official objective of the public service system (Curran, 1998:191). In the official canon, Curran continues, access is defined as access to broadcast signals (an entitlement to reception rather than expression) and diversity is understood in terms of delivery (mainly invoked in relation to non-political programmes) and finally public affairs coverage has to demonstrate due impartiality (1998:191). In this respect it is important to remind us that the establishment of public service broadcasting was not linked only to spectrum scarcity and an understanding of the spectrum as a public good but also to the view that broadcasting should not be part of the new publicity system for consumerism but should provide resources for citizenship, should provide the kind of information, spaces for debate that people needed in order to participate fully in the new political process (Metykova, 2003). In this respect it is worthwhile discussing issues of citizenship and broadcasting. Graham Murdock argues that there are three important ways in which the communications system is implicated in the constitution of citizenship: 1. the communications system provides access to information that is related to personal rights; 2. it enables access to information, interpretation and debate on areas that involve public political choices and 3. citizens recognize themselves and their aspirations in the range of representations on offer within the central communications sectors and are enabled to contribute to the development and extension of these representations (1992: 21). According to him public broadcasting played four key roles in organizing the new system of representation which aimed at extending citizenship rights. It enabled a public forum where platforms of the major political parties and legitimated interest groups were
17

Hall (1993: 29) argues that the reason why the public service idea did not perish after the introduction of commercial players in the British media market is twofold. First, although the BBC was funded by a licence fee it was allowed to compete with its commercial competitors and secondly, the public service requirement was imposed on the system as a whole. Thus the British broadcasting market was established in a highly regulated form.

21 presented and packaged for consumption by the public at large. Further, it provided a new source of surveillance and feedback to those in power as well as (due to being a national service) creating associations between ideals of citizenship and definitions of the nation and its culture. It also redrew the boundary between the public and private spheres (ibid.: 33). John Keane (1991) argues that public service broadcasting would serve its role better if there existed new constitutional settlements in all Western democracies that would make the exposure and repeal of the censorial methods of the contemporary state power possible. In more general terms Keane argues for government accountability to supra-national institutions such as the international civil society which is being formed with the help of new technologies. Keane, nonetheless, admits that new technologies are not necessarily heralding radical changes, a question to which I return in the last section of this chapter. Moreover, he acknowledges that although nation states are undergoing changes, we cannot yet speak about their end thus we still need to deal with national rather than global public spheres. According to Keane the public service broadcasting system has to be radically redefined and opened up to a plurality of non-state media of communication. This process has to go together with a radical loosening of libel laws. A new constitutional settlement would also make it possible to achieve a heterarchy of media controlled neither by the state nor by commercial markets. For example, the BBC could remain funded by a licence fee but the present system of government appointments should be abolished. James Curran (1998) points out similar issues when arguing for a rethinking of the rationale of public service broadcasting and the reform of its actual practice and organization. In addition, Curran argues, there is a need for a revision of the objectives of public service broadcasting in Britain which would foster a change in its style of journalism. This is still profoundly influenced by a civil service/professional model which stresses the disinterested mediation of information, the imparting of knowledge and the impartial umpiring of differences of legitimate opinion. It is a mandarin-like conception in which the electorate, the rulers of democracy, are briefed by intelligent and responsible public servants rather than merely entertained by market spectacle (1998:195). This change is especially important as an over-great stress on legitimated forms of public knowledge and accredited speakers unduly restricts participation in this dialogue. Indeed, this is a constantly repeated refrain of much academic research which suggests that TV news and current affairs is often defined by elite assumptions and sources (1998:196). There is, nonetheless, Curran suggests, a reform movement within the broadcasting community which is intent upon extending social access and expanding the range of voices and views on air (1998:196). This reform movement manifests itself in the form of new phone-in programs, audience participation formats and access slots.

22 Other authors argue that new genres provide a different way of understanding the role of public in media. Carpignano et al. (1993) argue that talk shows are the only program on which public as appearing on television gets full recognition. They propose that it is the only genre that proclaims its intention of presenting issues for public debate, moreover it is the only program whose discursive format is conversation. This points to a change in the understanding of the audience, studio audience is participating not only in the viewing but also in the actual writing of the script18.

III.

TECHNOLOGICAL CHANGE

The above overview has already hinted at the importance of technological changes in relation to broadcasting as such (it has been argued that spectrum scarcity is no longer a valid justification of the existence of public service broadcasting, new technologies enable more interactivity etc.) and also in relation to the possibility of creating arenas for public discussions. In relation to the possibility of creating an overarching space for public discussion the Internet immediately comes to mind. A number of politicians understand new technologies as playing a central role in bringing about social and political change (not least a reinvigoration of democracy via e-government). In this respect it is enough to think of Al Gore and Hillary Clinton both of whom envision the World Wide Web as a means for a global conversation that would bring about fundamental change. However, as Robins and Webster (1999) point out this argument is flawed as it presents social problems and inequalities in contemporary societies exclusively in terms of a failure to communicate. Murdock and Golding (2004:245) argue that the Internet appealed to politicians because as a solution to the problems generated by the accelerating dynamics of marketization and the decline of public welfare systems, it offered several advantages. It was relatively inexpensive in terms of the public investment required, it offered scope for partnerships with private companies, and it could be presented as a creative and forward-looking response to the inevitability of tec hnologically driven change. John Keane (1991) as well as Tod Gitlin (1998) argue that the World Wide Web is possibly providing the means for the creation of an international civil society and increasing the possibilities for a plurality of publics. Yet, as Gitlin points out, there is one problem which the new means of communication do not address and may even worsen: the existence of a two-tier society. To those who are information-rich19 (or information-glutted) shall more information be given (1998: 172). Murdock (2004) draws attention to the fact that exclusion from the Internet is
18

Some of the suggested ways of improving public service broadcasting are linked to changing the top-down way in which it operates, in this respect we are reminded of Habermas lament over radio and television in preventing the public from talking back, from participating in a discussion. 19 In this respect he points out that only 17 per cent of US citizens can access the Internet from their homes.

23 not only the result of the financial costs involved with being connected but also to feelings of incompetence, symbolic exclusion, and the irrelevance of what is currently on offer. 20 The World Wide Web has been seen as an open, fluid and flexible space that makes direct and immediate contact possible thus facilitating new forms of community in which the basis of social conflict and for that matter difference are overcome.
As far as the Third Way politicians are concerned, virtual technologies promise to make community instantly available, now as a service (or a commodity) that can be piped into the electronic home - community, or interactivity, for domestic consumption. The politics of connexity seeks to work in harmony with this fortunate and benign logic, breaking down the barriers and separ ate identities that have been the main cause of human suffering and war. The objective is to promote a greater sense of transparency, mutualism and trust - the immediate relations of faceto-face community are a key reference point (we are even told that new technologies promise direct connection between peoples minds, transcending the idea of separate selves and subjects) (Robins and Webster, 1999: 231).

A number of authors have written critically in relation to the utopian notions connected with the Internet. For example, Graham Murdock (2004) points out three problems with the Internet. First of all, access to it remains highly stratified (in terms of income, age and education). Secondly, it segments its audience, taken together these technologies make it entirely possible to only watch what one already enjoys and to only encounter opinions one already agrees with. In a situation where worldviews are increasingly polarised and talking across differences on a basis of knowledge and respect is more vital than ever to a working deliberative system, this hollowing out of collective space presents a major challenge to democratic culture.

And finally, it (just like any other branch of the culture industries) became an arena for corporate activity. Frank Webster (2002:22) points out that what we have here [in the utopian visions of the Internet] is the assumption that quantitative increases transform in unspecified ways into qualitative changes in the social system. It does not come as a surprise that Habermas (as quoted in Downey and Fenton 2003:189) remains sceptical of the potential embodied in the Internet: Whereas the growth of systems and networks multiplies possible contacts and exchanges of information, it does not lead per se to the expansion of an intersubjectively shared world and to the discursive interweaving of conceptions of relevance, themes, and contradictions from which political public spheres arise. The consciousness of planning, communicating and acting subjects

20

See also Murdock and Golding (2004). Murdock goes on to argue that in the Internet age the role of television should not be underestimated, because television is a ubiquitous, familiar, and well used presence in everyday life it is less likely to bump up against these symbolic barriers to participation (2004).

24 seems to have simultaneously expanded and fragmented. The publics produced by the Internet remain closed off from one another like global villages. For the present it remains unclear whether an expanding public consciousness, though centered in the lifeworld, nevertheless has the ability to span systematically differentiated contexts, or whether the systemic processes, having become independent, have long since severed their ties with all contexts produced by political communication.

In relation to broadcasting the most significant development is the advent of digitalisation. According to a dictionary entry (Watson and Hill, 1993) digital communication involves a process whereby the transmission of information letters and numbers, voice, facsimile or video is coded into discrete on/off electronic signals, in contrast to analogue transmission in which a signal is a measure of time of a continuous flow of electricity. To explain this very rigid definition I outline the implications of digitalisation for television. Digital broadcasting involves the transmission of digital signals to a digital television set, these signals can be broadcast over the air or via cable/satellite. With its brilliant, high-definition images, CD-quality audio, and the possibility of transmitting multiple programs and information simultaneously, the quality of digital television is a vast improvement over the analogue television that most of us experience today (Jones, 2003: 149). Digitalisation enables the transmission of more visual information (usually an analogue picture has 480 vertical interlaced lines with about 340 horizontal pixels per line, a digital television picture has 1,080 vertical interlaced lines with 1,920 horizontal pixels per line) without increasing the broadcast frequency spectrum as data is in a compressed form (the frequency that carried one analogue television channel can carry at least four digital television services and radio and text services.). The introduction of digital television appears to be a matter of the next few years (US by 2007, Sweden by 2008, Australia by 2009, UK by 2010, EU mostly by 2015; on EU countries and the timing of digital switchover see www.europa.eu.int/information_society/

eeurope/2005/index_en.htm) and public service broadcasters are expected to lead the way in its implementation. Problems that occur with the implementation of the switchover include huge costs (e.g. Jones 2003 gives an assessment of US system-wide costs of 1.6 billion USD), these, however, involve consumers as well (the need to buy set-top boxes), additional problems include the threat of piracy as well as control over gateways. Mosco (2004: 219) draws attention to the fact that the development of technical standards itself presents significant problems as digitalisation requires the harmonization of the production, distribution and reception of digital signals. In this respect a telling example is that of the UK. In March 2005 the first village that of Ferryside in Wales, UK

25 switched to digital. In the UK more than a million set-top boxes were sold over Christmas 2004 bringing their price down from about 100 GBP to 35 40 GBP. Yet, the Digital TV Group (which was set up to promote digital television) admitted that almost half of the transmitters needed to send signals to Freeview set-top boxes are still using old technology and will not be fully upgraded until 2012 (Guardian, 30 March 2005). This means that the quality of pictures on television sets linked to the set-top boxes is poor and it is likely that customers facing this problem will have to spend 300 GBP or more on new aerials and cabling. On the surface (and despite the above mentioned problems) digital broadcasting seems to be a blessing: it will result in the multiplication of the number of available channels, better quality products, more competition etc. Yet, the initial excitement that surrounded the promise of digital television and in particular of digital terrestrial television21 (DTT) did not match actual developments. By 2002 DTT failed in Great Britain (with the collapse of ITV Digital) which seriously jeopardized the British governments ambition to make Britain the first fully digital television nation by 2010. A closer look at digitalisation clarifies that other issues are at stake as well and that digitalisation certainly does not make public service broadcasting and government regulation in the sphere of broadcasting obsolete, rather the contrary. In an influential public policy report from 1997 Graham and Davies convincingly argue that the introduction of new broadcasting technology will not significantly increase competition and broadcasting will remain highly concentrated. Broadcasting is an example of an economy of scale22 (characterized by high fixed costs and very low marginal costs), with the introduction of digital broadcasting it will turn into an economy of scope (activities in one area decrease costs respectively increase revenues in another area). They alert to the possible monopoly control over gateways as well and argue that with the new technology under free market conditions consumers will face a choice between a narrower range of cheaper (and yet still high quality) broadcasting and a broader range of more expensive and yet lower quality programmes (1997: 17). The introduction of digitalization will not prevent the continuing fragmentation of the audience, in fact, Graham and Davies argue, this could be achieved by public service broadcasters which is another reason for maintaining (and in fact improving) their services. Murdock (2004) argues in a similar vein: Public broadcasting also has the capacity to counter fragmentation. Employing programmes, whether watched in real -time or retrieved on-line, to kick-start on-line activities maintains at least a minimal base of shared experience. In addition,
21

There are other than terrestrial means of delivering digital signals (i.e. via satellite or cable) yet DTT is the most economic means of delivering digital signals to everyone, since it builds on existing transmission networks and achieves penetration levels closely matching existing analogue patterns of reception. It achieves very high population coverage for a relatively small investment, so using the legacy network as a primary delivery system meets universal service obligations in a cost-effective way (Corcoran, 2004: 119). 22 For a more detailed discussion of the economic characteristics of broadcasting see Chapter II.

26 web surfing has the capacity to counter the self enclosure of zapping and personalised video recorders. Although mixed programming now often takes second place to crafting distinctive channel identities, a user entering the broadcaster's web site to pursue a particular interest will encounter a wide range of other possibilities, some of which they may be tempted to follow up. Graham Murdock (2004) concentrates on the active and positive role that public service broadcasters can play in the creation of a new cultural space, a digital commons, that can help forge new communal connections and stand against the continual pressure for enclosure coming from commercial interests on the one hand and the new moral essentialism on the other. However, developing these resources requires us to abandon our old analogue maps of the cultural industries which depicted a series of stand alone institutions separated by incompatible technologies and compile a digital chart showing public broadcasting as the central node in a new network of public and civil institutions that together make up the digital commons, a linked space defined by its shared refusal of commercial enclosure and its commitment to free and universal access, reciprocity, and collaborative activity. This space is potentially global in scope.

This chapter began with an evaluation of Habermas concept of the public sphere which exists (existed) primarily as a discursive space with a distinctly critical role. Despite the various criticisms related to Habermas seminal work there are at least three features that are of key importance when assessing public spheres in contemporary societies. Namely: the link between mass media and democracy; material resources required for the public sphere and last but not least the fact that media in their critical role are threatened by both the market as well as the state. Although Habermas argues that media in contemporary societies create only a pseudo public sphere and arguments have been proposed in relation to the existence of multiple public spheres I focus on public service media (more concretely on public service broadcasting) and the legislative framework related to it to analyze whether legal instruments and regulatory mechanisms reflect any of the above mentioned three dimensions of Habermas concept, i.e. public service broadcasting has a critical role to play in relationship to democracy, it must be guaranteed a material base for its existence and be independent from both the state and the market. The reason why public service broadcasting (rather than private one) is crucial for my argument is that it carries a certain public sphere ethos due to its very remit and despite the well-documented fragmentation of the audience

27 it has at its core the promise of reaching the most numerous and most diverse audience. Also, public service broadcasting, unlike private media, importantly addresses its audience as citizens as a polity rather than purely as consumers. Examples of concrete systems of public service broadcasting illustrate diverse ways of implementing goals that are basically intrinsic to the concept of public service broadcasting (i.e. universal service, accountability, public funding (at least partial), regulation of content and a limited number of service providers). The chapter has also dealt with the presumed crisis of public service broadcasting, even those who object to the term crisis acknowledge that the last decade has brought a serious questioning (unfortunately often not followed by a public debate) on the role of public service broadcasting in contemporary democracies. This questioning is closely related to the forms and justifications which mark the origins of public service broadcasting (albeit these, as I argued, are often misrepresented and misunderstood) and is also directly linked with a general deregulatory ethos and the emergence of new technologies (digitalization is of major importance in this respect). In particular technological developments have been surrounded by much (unfounded) optimism and hype. From a regulatory point of view the argument that new technologies justify deregulation is utterly unfounded. On the contrary, as I suggested in this chapter and argue in the following ones, there is in fact need for more regulatory rigour. Although digitalization is not proving to be the universal solution that many expected it to be, it certainly provides avenues for the rejuvenation of public service broadcasting this, though is a huge challenge and, as I argue further, it is not at the least considered by regulators in the cases I deal with. This chapter in essence provided a probe into the academic debate surrounding public service broadcasting and its roles (among them the creation of a critical discursive space), however, the world of the academia is often miles away from the world of legislators and political elites. My aim in the following chapters is to confront the visions and solid arguments outlined in this chapter with concrete legislative measures related to public service broadcasting in the European Union, the Czech Republic, the Slovak Republic and the Republic of Ireland. Before moving on to the case studies, however, the following chapter considers the general regulatory framework and the most important developments within it in the last fifteen years.

28

CHAPTER II: The Framework of Broadcasting Regulation

I.

Trends in the 1990s

The aim of this chapter is to provide a general discussion of broadcasting regulation and thus lay the ground for the analysis of policy documents relating to the regulation of public service broadcasting in the analyzed countries. Normative issues concerning the media in general have been over a long time decided in the political and judicial arenas and a wide range of principles concerning the role of media is as a result reflected in policy documents at the national level as well as in journalistic codes of practice produced by the media themselves together with a

gradual extension of regulation and of the normative discourse to the international level. In short, this body of material does provide an empirical basis for a normative enquiry into the media, however diverse in form, ramifying and uncodified it may be. We may expect to find the clearest expressions of the public interest and also the clearest statements of fundamental values about communication from the point of view of society in such material (McQuail, 1992b: 31).

Of concern are not only policy documents but the whole policy-making process with a variety of actors who

make claims within a political system on behalf of goals (favoured end-states) which are said, in the light of certain fundamental, or commonly held, values to be of general benefit to the whole society, community or public, over and above individual wants, satisfactions or utilities. These claims are specified in terms of preferences about a communication system or its performances which correspond to the advocated end-state. The specifications offered should indicate evaluative criteria for recognizing whether or not preferred conditions are present or goals reached (ibid: 27).

29 It thus becomes clear and needs to be stressed from the beginning that the normative issues with which this dissertation is concerned cannot be found in a systematic form and are not confined to a particular government body, media organization or a civic sector actor. Rather, they can be found in documents compiled by various committees and state organs, other sources are codes of media practice originating within the media themselves, statements of public policy, or the actual requirements of performance entered in laws, regulations or similar instruments of public policy (ibid.: 33). Detailed case studies of public service broadcasting policy in the European Union, Czech and Slovak Republics and Ireland are discussed in Chapters 3 to 5. The policy analysis provided in these chapters takes into account legislative developments based not only on final acts but also on bills at various stages of the legislative process e.g. as drafts, amended drafts etc. Attention is also paid to policy documents and decisions arrived at by various bodies active in the field of broadcasting, such as parliamentary committees, broadcasting councils and similar. The current chapter aims at discussing key issues related to the policy making process in general. However, media policies should be viewed within a larger framework of trends within media regulatory practices (in this respect the trend-setters clearly are the USA23 and Great Britain) as well as the questions of media regulatory aims, justifications and techniques. The following addresses these in more general and draws in particular on the developments in the 1990s in the Anglo-American context. There appears to be general agreement that the major trend during the last two decades within broadcasting regulation (but not restricted to it) has been towards deregulation, for example, McQuail (1992b: 143) identifies a more general liberalizing and deregulation political -economic trend in Europe. Murdock (2004) argues that the marketization of broadcasting was promoted by liberalization which has introduced competition into broadcast markets that were previously either public monopolies (as in most western European countries) or duopolies with strong public service regulation, as in Britain. ... As well as massively enlarging their sphere of action private television interests also succeeded in winning more space for manoeuvre by pressing for the rules governing ownership and advertising to be relaxed and getting the underlying purpose of regulation redefined.

Liberalization was combined with deregulation which implies a minimalist regulatory approach on the part of the state as well as increased stress on self-regulation. This trend has been widely
23

In this respect I agree with Calabrese, of course, there is a vitally important global dimension to all of this, in that for many years the US has served as both the model and, when models fail, the primary source of political and economic pressure, to get the rest of the world to fall into line with its media policy frameworks (2004: 112).

30 explored (see e.g. Murdock,1990 and McChesney,2004) and claims have been made to a major shift in the policy rationale, moreover, the change has been characterised as a move away from regulation in the public interest to regulation in corporate interest, a shift from citizen-oriented to consumer-oriented regulation. Another important issue is the prevalence of regulation after the event rather than pro-active regulation.24 In Feintucks words deregulation results in accepting and legitimising market trends rather than establishing positive targets for regulation (1999:164). The effect of deregulation was to be overwhelming, as McChesney notes in his commentary, according to conventional wisdom the effect has been rapid commercial development of spectacular new technologies, more competitive markets that give the people what they want, plus a tremendous spur to economic growth in the information age (2003: 125). McChesney, however, goes on to argue that this is far from the truth. According to him, the claim that media deregulation is necessary and serves the interests of the society as a whole has three parts, first, it claims that the market even if highly concentrated is the best to regulate media, second, deregulation is inevitable and third, new technologies make old public interest justifications obsolete (ibid.: 129). These arguments are recurrent in writing on media regulation and broadcasting systems. Some of them I have already dealt with in the previous chapter, to others I return in the course of this chapter. Much of the discussion on the role of media in society and the ways of ensuring these roles has been formed around the dichotomy of free market versus state, in the case of regulation of deregulation versus government regulation. This dichotomy though leads to a deadlock and is based on the false premise that the free market involves no state intervention, as McChesney argues all media systems are the result of explicit government policies, subsidies, grants of rights and regulations. ... Indeed, to have anything close to competitive markets in media requires extensive government regulation in the form of ownership limits and myriad other policies (2003: 126). Similarly, McKenna (2000) stresses that deregulation does not indicate that regulatory procompetitive provisions are not incorporated in broadcasting regulation. Murdock (1997: 12-13) points out that deregulation is a misnomer, what is at stake is not so much the number of rules but the shift in their overall rationale, away from a defence of the public interest (however that was conceived) and towards the promotion of corporate interests. Communications corporations benefit from this shift at two levels. They not only gain from changes to the general laws governing corporate activity in areas such as trade-union rights but, more importantly, they have also gained considerably

24

In relation to British broadcasting regulation Graham Murdock pointed out that what has been relinquished is regulation which is pro-active and aims to create a communications environment that honours certain public obligations to open debate and diversity of opinions (Metykova, 2003).

31 from the relaxation of the additional rules designed to prevent undue concentration in the market-place of ideas and to ensure diversity of expression.

I consider it important to illustrate what some aspects of deregulation involve with concrete examples. The US 1996 Telecommunications Act and its implementation provide a very telling example of what deregulation of media ownership can involve. According to McChesney (2003: 128) the Act most directly affected US radio25 as it changed the restriction on the ownership of radio stations (prior to the 1996 Act a single company could own 28 stations nationally and 4 in a single community) by completely removing the restriction on the number of national radio stations owned by a single firm and increasing the number of those owned in a community to 8. Since 1996 well over half of US stations have been sold, and a stunning consolidation has hit the industry. One firm, Clear Channel, now owns nearly 1,200 stations. Every market is dominated by two to three firms that own nearly all the stations between them (McChesney, 2003: 129). What McChesney finds worrying about this concentration of radio ownership is the decrease in the diversity of radio content as well as in the diversity of voices presented on the radio as well as increased commercialization. Another change in the rules applied by the US Federal Communications Commission was announced on 2 June 2003. A 20-month review of its media ownership policy was to determine whether its broadcast ownership rules were necessary in the public interest as the result of competition26 (www.fcc.gov/ownership). Following the review the FCC revised the local television multiple ownership rule; modified the local radio ownership rule by revising the local radio market definition; raised the national television ownership limit from 35% to 45%; retained the dual network rule and developed a single set of cross-media limits to replace both the radio/television cross-ownership rule and the newspaper/broadcast cross-ownership rule (ibid.). The new rules have not been implemented yet at the time of writing (early 2005) as the decision was appealed against in various federal appellate courts.27 Another characteristic feature of recent developments in broadcasting regulation is increased reliance on self-regulation. Self-regulatory authorities are usually set up by the industry itself, however, their establishment can be supervised by a government body. A report on self-regulation

25

In this respect see also McKenna (2000 : 103), among other significant changes he lists the following: section 20 2 eliminates total TV station ownership limits per se and raises former limits on national audience totals from 25 to 35 per cent. The Act also formalized the position whereby existing TV station owners licences were renewed as of right. 26 Cooper (2003: 111) argues that during the review of media ownership rules FCC attempted to prove that there is substitutability between media this is crucial also in respect of the entire deregulation argument FCCs own data show that there is very little substitutability between media either for viewers as a source of information gathering or for advertisers as a source of information dissemination 27 In this respect see also Cooper (2003) for a detailed qualitative and quantitative market analysis which demonstrates that the FCC should maintain structural limits on media ownership.

32 prepared by the Programme in Comparative Media at Oxford University28 deals in detail with aspects of self-regulation in print media, broadcasting, film industry, electronic game industry and the Internet. The authors of the report identified the following reasons for setting up self-regulatory codes: to provide an alternative to direct statutory regulation; to prevent direct statutory regulation by the state; to build public trust/consumer confidence; to avoid legal or user-perceived liability; to protect children and other consumers; to exert moral pressure on those who would otherwise behave unprofessionally; to reinforce the competitive advantage of a group of industry players; to mark professional status and to raise the public image of the given industry (ibid., 17-18). In relation to broadcasting, self-regulation is most evident in the case of public service broadcasters who establish internal bodies that self-regulate and self-monitor them. However, there are also self-regulatory bodies that deal with commercial broadcasters. For example, in the area of broadcasting and the protection of minors, Germany probably provides the most striking example. In 1993 the major German commercial broadcasters founded Freiwillige Selbstkontrolle Fernsehen (Voluntary Television Review Body) which was to ensure that commercial broadcasters complied with child protection that exceeded normal legal stipulations. They use the mechanism of pre-publication review when a review panel of 5 to 7 people examines a broadcast and makes a decision about it (taking into account how the broadcasters intend to broadcast it, e.g. the timing etc.). The decisions made by FSF are compulsory (for more detail see www.fsf.de or Self-regulation ). Another area that is related to broadcasting and is often self-regulated is advertising. To use an example from Eastern Europe, we can mention the Czech Council for Advertising (for more detail see www.rpr.cz) which was set up in 1994 by the industry to self-regulate advertising in all media, its structure was based on that of the British Advertising Standards Authority (ASA). 29 The Council is mainly involved in handling complaints relating to advertising, its powers are rather limited as it can only make recommendations to change an advert or to stop using it. Upon request the Council prepares analyses for government agencies in relation to the implementation of the Act on Advertising. There is, however, a statutory body in the Czech Republic that deals with advertising and sponsorship in relation to radio and television broadcasting - the Czech Council for Radio and Television Broadcasting (does so on the basis of Act no. 40/1995 Coll. on the regulation of advertising). In the case of Slovakia the statutory organs that supervise compliance with Act no.

28

Self-Regulation of Digital Media Converging on the Internet: Industry Codes of Conduct in Sectoral Analysis (further Self-regulation . ) accessible at http://www.self-regulation.info.
29

In this respect it is interesting to point out that ASA regulated non-broadcast advertising, it was only on 1 November 2004 that the Office for Communications in an attempt to deregulate broadcast advertising contracted out its regulation to ASA (see www.asa.org.uk and www.ofcom.org.uk).

33 147/2001 Coll. on Advertising are the State Veterinary and Food Administration of the Slovak Republic, the State Institute for Drug Control, the State Institute for Veterinary Drug Control and the Slovak Retail Inspection Office. The Council of the Slovak Republic for Broadcasting and Retransmission is empowered to impose fines in case of a breach of legal stipulations related to advertising and teleshopping. There are a number of questions that arise in relation to the accountability, transparency and efficiency of self-regulatory bodies. The question always is to what extent the interests of the industry overlap with the interests of consumers, respectively citizens, and to whom the selfregulatory bodies are made accountable. In terms of efficiency it is possible to provide a number of examples that illustrate how limited and driven by industry interests self-regulation can be. Let us look at the example of the British self-regulatory press body (although press is not of major concern for my analysis, nonetheless, it is more self-regulated than audiovisual media thus I consider it important to at least make a passing reference to it). The Press Complaints Commission was set up in 2001 following a government report on its self-regulatory predecessor the Press Council. The report of the Calcutt committee recommended the introduction of privacy laws and the replacement of the Press Council by a statutory regulator. The industry reacted by establishing the Press Complaints Commission. Chris Frost (2004) analyzed complaints handled by PCC during the first ten years of its existence to show whether the commission works effectively in obliging newspapers to behave more responsibly (PCC obviously claims that this is what it achieved). Already the fact that PCC received more than 20,000 complaints in those ten years and adjudicated only 707 and upheld 321 of them is telling. However, Frost is not interested only in statistics, rather he looks at various areas that the complaints related to and shows that PCCs record is particularly poor in regulating complaints about discrimination, during the ten years that Frost analyzed only 6 complaints were upheld.30 The reasons behind this have to do with PCCs code itself as the Commission decided not to take complaints from third parties thus only those named in an article could complain. This approach was criticized even by the UK Culture, Media and Sport Select Committee.31 Thus if a government is to transfer some areas from its regulation to self-regulatory bodies there are a number of issues to be taken into account. In this respect the example of the British Office for Communications is interesting, it created a set of criteria that will be taken into account when transferring regulatory functions to self-regulatory ones. Ofcom will sanction the change in case self-regulation is beneficial to consumers; works with a clear division of responsibilities
30

This is particularly striking as solely in relation to the coverage of Euro96 PCC received 306 complaints about the allegedly racist depiction of the German team once England was drawn to play it. 31 See House of Commons Culture, Media and Sport Committee, Privacy and Media Intrusion, accessed from: http://www.parliament.the-stationery-office.co.uk/pa/cm200203/cmselect/cmcumeds/458/458.pdf.

34 between co-regulator and Ofcom; is accessible to the public; no interference from interested parties; adequately funded and staffed; near universal participation; effective and credible sanctions; provide auditing and review by Ofcom; publicly accountable32; consistent with similar regulation and have an independent appeals mechanism (for more detail see www.ofcom.org.uk). Yet, at the authors of Self-regulation point out: Most attention to self-regulation and its accreditation by statutory bodies or government departments has focused on the issues of effectiveness, transparency and sanctions, i.e. with features of the self-regulatory institution and code. These aspects of the self-regulatory regime remain very relevant, but accreditation must also involve other dimensions such as financial sustainability, implications for speech freedoms and the structure of interests of the industry sector. If criteria such as those recently outlined in the UK by Ofcom are to justify a shift to self-regulation there must also be some reflection on the nature of the public policy objectives concerned, and whether they are likely to be coterminous with the aims of the industry itself (Self-regulation , 86).

II.

Contexts

Before turning to the general outline of regulatory issues and mechanisms it is necessary to point out three influences on the regulatory framework that need to be born in mind throughout the argument: historical developments, technological improvements and the international context. The rationales, or justifications, for broadcasting regulation as well as regulatory techniques and bodies have evolved historically, reflecting technological as well as socio-political and cultural developments. It has been claimed that the oldest justification for broadcasting regulation in the public interest has been spectrum scarcity (see Feintuck 1999: 24). As it has been already mentioned, due to the limited nature of the broadcasting spectrum, it was to be treated as a public asset. The development of broadcasting systems went in different directions in Great Britain (and in more general in Western Europe) and in the United States.33 The basic difference was the establishing of public service broadcasting, based not only on the understanding of the spectrum as a public good but also a series of philosophical and political arguments (among them the need to have a channel that provides information for citizens and a forum for discussion which enables full participation in the political process). Off-air broadcasting has always been classified as a public good in the lexicon of economics, since unlike a commodity such as a cinema seat, access is potentially universal

32

On the issue of media accountability and responsibility in relation to market mechanisms and government regulation see also Bardoel and dHaenens (2004). 33 See e.g. Briggs (1995, vol. 1), Barnouw (1962, vol. 1), Engelman (1996), Scannel and Cardiff (1991, vol. 1).

35 and everyone can enjoy it at the same time without interfering with anyone else. As we have seen however, from the outset public broadcasting was also thought out of as a public good in a more general, philosophical sense, as an activity that aimed to contribute to the quality of communal life and the development of democratic culture. Although other publicly funded institutions shared this ideal the limits imposed on them by space and location prevented them from matching broadcastings universality (Murdock 2004).

It is almost a clich to repeat the three imperatives that public service broadcasting was to fulfil according to the British Broadcasting Corporations first Director General John Reith: to educate, inform and entertain the nation irrespective of commercial and political pressures. It has been pointed out that in the case of the United States a strongly commercial, advertising funded model of broadcasting was established from its earliest days (Feintuck 1999: 166; see also McKenna 2000). Robert McChesney (2004), on the other hand, argues that it was not clear from the very beginning that the commercial model would succeed. He points out that at the beginning there existed non-profit radio broadcasting and the realization that profit can be generated from establishing national chains of stations that were supported by the sale of advertising was gradual.34 Closely linked to the broadcasting systems and the justification for their introduction is the system of supervisory and regulatory bodies. In the British case (as well as in other Western European countries) the system of public service broadcasting had a monopoly until commercial broadcasting was established and thus dual systems were introduced (e.g. in Britain in 1955, in the Netherlands in 1990 within the EU15 the only exception is Luxembourg which never had a public service broadcasting system). In general public service broadcasters tend to be regulated separately from commercial ones,35 in the case of France and Italy, for example, the regulator for commercial channels has some limited competencies related to public service broadcasting (see Self-regulation , 29), in the United Kingdom the public service broadcaster the British Broadcasting Corporation (BBC) is regulated by twelve governors (the Board of Governors) who act as trustees of the public interest, they are appointed by the Queen on advice from ministers.36 On the other
34

McChesney (2004) traces developments between 1927 when the provisional Federal Radio Commission was established (and the 1927 Radio Act was passed) and 1934 when the Federal Communications Commission was established as a permanent regulatory body that took on board the views represented by the National Association of Broadcasters, the commercial broadcasters lobby organization. 35 In this connection it is worth mentioning that another field crucial to broadcasting is that of telecommunications which tended to be regulated separately, e.g. in the British case by the Office for Telecommunications (OFTEL), however, this was not the case in the USA where telecommunications have also been regulated by the Federal Communications Commission. Another point that must be clarified and which will be dealt with in more detail is that in the 1990s some of the regulatory and supervisory bodies that previously regulated various media or various fields linked with communication were merged into a single body under the justification of converging technologies. 36 The question of public service regulation is not specifically the subject of this chapter, yet I consider it important to stress that in the case of public service broadcasting the regulatory framework can be viewed as self-regulatory yet one should bear in mind Nitsches point: although on its face public service broadcasting employs self -regulatory

36 hand, until recently UK commercial broadcasting was regulated by the Independent Television Commission37 (ITC) which also ensured that commercial broadcasters complied with certain public interest requirements which were stipulated when they were given their licences.38 The case of the United States is, though, radically different, as I have already hinted, the Federal Communications Commission was established in 1934 to regulate all communication systems within the United States.39 One of the attempts to ensure that US broadcasters fulfilled certain obligations to the public was the setting up of the fairness doctrine, in which the Federal Communications Commission required licence holders to serve local community interests, produce and broadcast news and current affairs programming and programmes for children. However, in 1987 the FCC stopped enforcing most of its own recommendations.40 Another aspect that is reflected in the evolution of supervisory and regulatory bodies is transparency and accountability (and in the case of public service broadcasters accountability to the public). As I have already suggested in the previous chapter when briefly describing different public service broadcasting systems all of them include provision and mechanisms that are implemented to represent the public interest, to secure the independence of the public service broadcaster/s from political and economic pressures. During the last few decades a number of changes in regulatory practices as well as regulatory bodies were justified by technological convergence. Technological advances, in particular digitalisation, enable the integration of formerly different forms of communication, such as telecommunications, broadcasting and information technologies. Convergence does not only blur the distinction among various forms of communication but also among services. 41 To make this issue more concrete we can look at the example of fibre optic cable, which offers the potential for the delivery to individual households of television and radio, networked computer facilities,
measures, it is plain that the proximity to official authorities is very close. One can argue about whether this can, in fact, be qualified as self-regulation (2001 : 34) 37 Its role was taken over by the Office for Communications (OFCOM) on 18 December 2003, see section on technological convergence. 38 Let us consider the example of Channel 4. The Channel 4 licence specifies minimum hours per week of mandatory programmes which include: high quality news (minimum 4 hours excluding breakfast news), educational programmes (minimum 7 hours), schools programmes (at least 330 hours per year) and religious programmes (minimum 1 hour per week though this is not a mandatory category). Importantly, Channel 4 is also bound to provide S4C (the Welsh fourth programme) with programmes free of charge (for further details see The Broadcasting Act 1990 and ITC (now OFCOM) documents available at www.ofcom.org.uk) 39 The Commissioners of the FCC are appointed by the US President subject to Senate approval, with the FCC dependent upon Congressional funding. Its actions can be overruled by Congressional legislation, thus the Commissioners have traditionally been sensitive to the wishes of Congress (McKenna, 2000: 100). 40 McKenna (2000: 101) refers to an argument made by S. Miller who points out that despite its progressive mandate the Federal Communications Commission tends to support the views of the industry players rather than those of the consumers, in the 1980s, for example, the FCC rules that the inclusion of home shopping programmes satisfied the TV stations public service requirement. 41 In this respect Cooper (2003) makes an important: advocates of convergence tend to equate all media while in fact distinct products are involved that are oriented at different geographic markets both in terms of the commercial marketplace and the forum for democratic discourse

37 interactive services such as home banking, shopping and video on demand, combined with telecommunications (telephone and fax) facilities. Indeed, the ultimate potential of digitalisation, allowing the transfer of all such material down a single line, seems almost boundless (Feintuck 1999: 23). Under these circumstances significant questions are raised regarding the regulatory framework, Drucker and Gumpert (2000: 48) summarize them in the following way: Does the existence of different regulatory authorities responsible for different aspects of telecommunications, media and IT [information technologies] activities offer a workable structure for regulatory supervision in the light of convergence or does convergence require a reassessment of regulatory responsibilities at a national or international level, and if so, in which areas? Different governments deal with these questions differently. Yet, if we accept the fact that the United States and the United Kingdom are trendsetters then it is worth noting that in 2003 the UK Office of Communications was established and it replaced five regulators the Broadcasting Standards Commission, the Independent Television Commission, the Office for Telecommunications, the Radio Authority and the Radiocommunications Agency. In the previous chapter I touched upon the question of the importance of regulation in the public interest in the digital age in relation to public service broadcasting. I argued that digitalisation does not make regulation obsolete and that indeed it might make it even more necessary. Here I provide a broader look at the question using a line of argumentation that was developed by McKenna (2000). Even if we adopt a strictly pro-market approach that argues that deregulation and technological convergence bring better services (often what is meant is actually cheaper services) to consumers the question is problematic. So far deregulation has not completely blurred the distinction among television, telephone and internet services so consumers are able to compare prices and the services on offer within the individual sectors thus

competition can be seen in the short run at least as providing lower prices for consumers. ... However, two important factors must be borne in mind, first true competition can only be judged when the competing products can be viewed on a like for like basis, which is so often not the case, and second, with the different services now able to be transmitted over the same medium, very shortly the companies that are able to, will offer a complete range of communication services, and this is when we may discover the true nature of competition within the industry and the real winners and losers from the convergence revolution. (2000: 109) McKenna goes on to speculate about the nature of these bundled services. The provision of packages of services may make it unprofitable to provide separate services although there might be

38 demand for them. People who cannot afford such packages may find that Internet access is available on a subscription only basis and lack of competition in the telephone only business will have forced call charges up. Therefore in the deregulated world, open competition may actually reduce choice and diversity for poorer people (ibid.: 110). Another example of what might be at stake in the deregulated digital world is connected with the provision of access through an electronic gateway which is a conditional system for digital television. Obviously the regulation of control over the gateway will be of crucial importance. When dealing with broadcasting regulation it is also important to bear in mind that apart from strictly broadcasting legislation there might be other laws as well that need to be taken into account. Stipulations related to broadcasting regulation can often be found in the countrys constitution (e.g. provisions guaranteeing freedom of speech such as the First Amendment to the US Constitution) as well as in competition law. In some cases it is also judiciary decisions that greatly influence the shape and scope of broadcasting regulation. For example, in the case of the United States the Supreme Court interpreted media regulation in constitutional terms and ruled that media content intervention is illegitimate thus making legislators use structural interventions (see e.g. Feintuck, ibid.: 169). The role of competition law in broadcasting regulation has played a crucial role, I deal with it in more detail in the section on regulatory justifications. Specifically related to public service broadcasting are stipulations on state aid. Some understand technological convergence as a development that calls for the increased application of competition law in all areas and the concurrent abandonment of sector specific regulation, as Drucker and Gumpert (2000: 48) point out technological convergence quickly leads to the consideration of market convergence which immediately suggests regulatory convergence and leads to the introduction of competition law. They go on to warn that

the development of convergent technology should not be entirely controlled by free market forces, because there is little room for the participation of community members in any sense other than as consumers. We believe that the current path shifts the emphasis from communities of place to virtual communities, where entertainment and commerce are divorced from obligation, and technological and commercial convergence leads to regulatory convergence divorced from locality (ibid.: 51).

Another dimension that needs to be kept in mind in relation to broadcasting regulation is its international dimension as (even national) regulatory activity is not confined to single states and is developed on the basis of international agreements within organizations such as the European Union, the United Nations and the World Trade Organization. As Drucker and Gumpert point out,

39 an organisational structure based on an exclusive view, focusing on the regulation of a medium is antiquated, and single-issue international agreements (e.g., copyright) are too limited to be effective. All regulatory schema must allow for domestic, regional, and transnational community citizen participation (2000: 51). It is not only membership in transnational organizations and the requirements that it involves in relation to broadcasting policy at the national level but also the practical need to consolidate steps at international level. For example, the introduction of digital terrestrial television requires co-ordination of frequencies at the national as well as European level. Due to the above mentioned reasons and the fact that all the analyzed countries are members of the European Union the following chapter provides a detailed discussion of EU broadcasting regulation.

III. Regulatory justifications Once outlining the larger framework of broadcasting regulation I can now move to a discussion of justifications underlying such regulation. Feintuck (1999: 43-48) explores four justifications for contemporary broadcasting regulation. First, regulation is justified on the grounds of enabling effective communication. This notion is closely related to the freedom of speech ideal, as reflected, for example, in the First Amendment to the US Constitution or in Article 10 of the Euro pean Convention on Human Rights. Feintuck points out that effective communication implies both unobstructed as well as diverse communication. McQuail (1992b: 69) argues that freedom related to communication is understood as a crucial individual right, yet it has undeniable and concrete benefits to society and its members. As a condition of media structure, freedom calls not only for the absence of a legally imposed licensing or censorship mechanism, but a degree of independence (which must actually be exercised in order to count) from the main kinds of pressure and constraint encountered in public life. Very rightly McQuail reminds us that the notion of freedom in communication also involves economic freedom, a question to which I return later in more detail. In respect of freedom in communication McQuail proposes the following framework that needs to be taken into account in the exploration of this topic: structural conditions (legal freedom to publish); operating conditions (real independence from economic and political pressures and relative autonomy for journalists and other communicators within media organizations); opportunities for voices in society to gain access to channels; benefits of quality of provision for receivers, according to criteria of relevance, diversity, reliability, interest, originality and personal satisfaction (ibid: 70).

It is clear from the above that closely related to freedom of communication is diversity, which Feintuck identifies as the second ground for justification of broadcasting regulation. Feintuck

40 relates diversity specifically to political debate and cultural identities. This division might seem somewhat restrictive, yet it reflects the framework in which policy makers tend to view diversity. It is, however, helpful to deal with the question of diversity in media/communication in more detail due to its complexity as well as to the fact that it is very closely related to the conceptualization of public service broadcasting (and public sphere), as Hoffman-Riem (as quoted in McQuail, 1992b: 142) points out in relation to broadcasting arrangements in Europe: The public service philosophy of broadcasting ... is oriented towards the accessibility of pluralistic information for citizens and society rather than the freedom of communicators. Diversity of program content, accessible to all segments of the audience must be established and safeguarded. According to McQuail diversity reflects an attempt to make a virtue out of a necessity brought on by modernity, but it also signals resistance to some of the new unifying (and fragmenting) forces of economic power, technology and bureaucracy (1992b: 141) and there is a wide agreement that pluralistic mass media can contribute to diversity in three main ways: by reflecting differences in society; by giving access to different points of view and by offering a wide range of choice (ibid.: 144, original emphasis).42 In multicultural, respectively multilingual, societies language also presents an issue that is reflected in broadcasting policy. Although Feintuck does not deal with language as an issue in relation to diversity as justification of media policies I consider it important to point out this specific aspect of ethnic/cultural identity as the countries whose media policies I deal with all handle the question of languages of broadcasting in one way or another in their policy documents. 43 Understandably, language and language maintenance are of key importance in particular for minority populations. A number of convincing arguments have been developed in relation to the role of language maintenance for minority populations. De Varennes (1996), for example, lists six areas in which minority language protection is absolutely vital for the maintenance of a language. It is not surprising that these areas include education, institutions, names and toponomy, script prohibition, media and publications and the use of minority languages at home and in public (emphasis added). Kymlicka (1995) makes a similar point when he argues that one of the most important determinants of whether a culture survives is whether its language is the language of
42

McQuail goes on to distinguish three standards of diversity for the assessment of media performance, diversity as reflection, as access and finally as more channels and choice for the audience. In respect of the first standard McQuail uses the principle of representation as developed by Jacklin according to which there is representative diversity when the structure of diversity in communications corresponds to the structure of diversity in society (ibid., 144). The second standard (diversity as access) refers to access to channels (made available by media) which various voices (i.e. groups and interests of which the society comprises) have. The most essential preconditions for access to these channels, as McQuail rightly stresses, are freedom to speak out; effective opportunity to speak (there being a sufficient number of independent and different channels); autonomy, or adequate self-control over media access opportunities (ibid.: 145). The last standard simply refers to the choice that consumer s have at their disposal, essentially it involves diversity of formats and contents. 43 Public service broadcasters in the analyzed countries are bound to provide programmes in minority languages either within majority language broadcasting or on separate channels. I discuss the provisions in detail in the individual case studies.

41 government - i.e. the language of public schooling, courts, legislatures, welfare agencies, health services etc. (Kymlicka, 1995: 111). Doubtless, media play a prominent role as agents of public communication. An important issue in relation to diversity is, as Feintuck (1999: 46) rightly stresses, the potential tension between this principle and interventions premised on the protection of consumers (in particular minors, relating to sexually explicit and violent material). Such interventions also relate to freedom of communication and are often made in the name of public interest. This type of intervention is, however, different from interventions made in order to ensure the maximum competitiveness of a given market (for example, provisions regarding media ownership that attempt to prevent undue concentration). The definition of intervention in the interest of consumers, respectively citizens, can be a problematic one. In some cases such an intervention is by media organizations understood as breaching freedom of speech or the right of the public to crucial information. These issues are by no means restricted only to totalitarian countries, an example of censorship in a democratic country involves the United Kingdom. Probably the most serious and long-lasting intervention in this sense involves the Northern Ireland Notice. On 19 October 1988 the then Secretary of State Douglas Hurd introduced a notice under clause 13(4) of the BBC Licence and Agreement and section 29(3) of the Broadcasting Act 1981 which prohibited the broadcasting of direct statements by representatives or supporters of eleven Irish political and military organisations (among them e.g. the Irish Republican Army, Sinn Fein, the Ulster Voluntary Force, the Ulster Defence Association). It became known as the Broadcasting Ban44 and was lifted in October 1994 when the Northern Irish peace process began (and IRA announced the cessation of violence). Economic interest constitutes the third type of justification. Justifications of this type centre on perceived benefits of undistorted competitive markets. However, as Doyle (among others) points out perfect competition exists when there are many sellers of a good or a service that is homogeneous (i.e. exactly the same or not differentiated) and no firm(s) dominate(s) the market. In such a situation economic forces operate freely. It is very rare to find an example of perfect competition in the real world (2002: 8). Rather, what we face is imperfect competition where cost advantages associated with size will dictate that an industry should be an oligopoly unless some form of market intervention or Government regulation prevents the firms from growing to their most efficient size. If no such intervention takes place, existing firms in the industry may create barriers to entry where natural ones do not exist so that the industry will be dominated by a handful of large firms only because they are successful in preventing the
44

A similar ban existed in the Republic of Ireland known as Section 31, it was lifted in January 1994 (see Chapter V).

42 entry of new firms. But substantial economies of scale in any industry will, in themselves, act as a natural barrier to entry in that any new firms will usually be smaller than established firms and so they will be at a cost disadvantage (Doyle, 2002: 9). In order to fully appreciate Doyles point some of the terms she uses need to be explained. First of all, media concentration or media integration is defined as an increase in the presence of one (monopoly) or a few media companies (oligopoly) in any market as a result of acquisitions and mergers or the disappearance of competitors45 (Meier and Trappel, 1998: 41). Meier and Trappel (1998) list six observations that are related to the impact of media concentration on media pluralism, media diversity and media quality.46 The first observation relates to the possible expansion of market power to political power, media conglomerates develop from merely economic factors in public life into powerful institutions in society and eventually increase their political power (ibid.: 39). Further, Meier and Trappel point out the lack of public debate on media concentration, usually media owners are keen to advertise the advantages of horizontal, vertical, diagonal and international concentration and state agencies play down the potential risks and threats of media conglomeration to the public sphere in particular and to democracy in general (ibid.). According to the third observation media concentration policy favours big highly integrated media corporations, the common policy of privatization and deregulation all over Europe has aggravated the very problems they were intended to solve. In other words, state and administrative bodies in charge of media regulations have willingly stimulated and not reduced the concentration process (ibid.). Further, there is a lack of empirical evidence from scientific research bodies, this is partly due to two different approaches to the problem: on the one hand, the competition policy concept developed by economists and, on the other, the public policy concept (political and cultural concept) by social scientists (ibid.:40). The fourth observation that Meier and Trappel identify is that it is the competition policy concept developed by economists that dominates discourse and policy, some national and international organizations refer to media concentration only and entirely under aspects of competition law. Within this concept, all measures in respect of media concentration are analysed from the point of view of possible distortion of competition law (ibid.:40). The last observation that Meier and Trappel make in relation to media concentration is
45

We distinguish various types of concentration. My descriptions are based on Meier and Trappel, 1998: 41-42. Horizontal media concentration refers to concentration within one and the same industry section (an example can be the merger of two newspapers in the same geographical market). Vertical media concentration is involved when a media enterprise gains control over some steps necessary for the production and distribution of a given media (for example, distribution, promotion etc.). Cross-media concentration refers to a situation when a media enterprise gains crossownership of different media products (respectively outlets) in different media markets and industries. Diagonal media concentration includes not only cross-media concentration but also activities of an enterprise from a different industrial sector in media markets. 46 We can be reminded of the consequences of such concentration that Habermas envisioned as discussed in Chapter I.

43 closely linked to the previous one, the public policy concept of social scientists is marginalized in discourse and policy. The public policy concept of media concentration research aims at describing potential effects on the public interest, rather than on competition. Both concepts, however, are interrelated to some degree (ibid.). In more concrete terms the possible impacts of media concentration include, for example, the threat to the diversity of content and the reduction of the number of different information sources. The more media become exposed to profit-generating objectives (a serious concern in the cases of diagonal and multimedia concentration), the more normative journalism will be replaced by market journalism. Advertisers do not pay for high-level quality journalism, but for the requested quality of the sector of society to be reached. Market journalism, however, provides for a different construction of reality in the media and for a substantially different media reality. Its first and foremost objective is not to inform but to satisfy the targeted sector of society (ibid.: 57, original emphasis). The topic of media concentration has been widely discussed47 in mass communications theory, the opinions on the significance of media concentration vary greatly, from the notion that the dangers of concentration have been exaggerated as the media industry remains essentially fragmented and the questioning of the influence of media concentration48 to the opposite view according to which powerful media moguls have taken over global markets. According to James Curran (May 2002) there are four sources of concern related to the question of concentration. The first is that private concentration of symbolic power potentially distorts the democratic process. ... The second reason for concern is that the power potentially at the disposal of media moguls tends to be exerted in a one-sided way. ... The third reason for concern is that the concentration of market power can stifle competition.49... To this can be added perhaps a fourth concern. The dominant position that emerged in this debate that media concentration undoubtedly exists but matters relatively little fairly accurately reflects the

47

See e.g. the discussion related to media concentration at www.opendemocracy.net as well as McChesney and Herman (1997), Compaine (1982), Curran (2002), Hallin (1986, 1994), Doyle (2002), Bagdikian (1997). 48 Some argue that it is governments rather than media moguls that threaten the independence of media, further that media concentration does not necessarily eliminate staff autonomy or decrease the power of the consumer. Yet even a former Federal Communications Commissioner provides a very vivid description of what vertical integration involves: When you contract with an author to write a book and sell it in the stores you own, produce the movie in the studio you own and run it in the theatres you own, make it into a video and distribute it through the stores you own, then put it on the cable system you own and the broadcast stations you own, promote it on the TV network you own, and write it up in the entertainment magazine you own, thats pretty tough to compete with (Nicholas Johnson, as quoted in McKenna 2000: 111). 49 In this respect he provides the example of the British national press, pointing out that due to the long control of the market by an oligopoly no new independent national newspaper has been launched in the past seventy years.

44 balance of opinion, both in the relevant academic literature and in wider political debate. This is giving rise to a one-sided protection of our freedoms: a state of constant alert against the abuse of state power over the media, reflected in the development of numerous safeguards, not matched by an equivalent vigilance and set of safeguards directed against the abuse of shareholder power over the media.

It thus becomes clear that concentration is in general unwanted on any type of market, yet, even if we were to have perfect competition on the media market, there are arguments that the audiences would not get what they want as the media market is based on advertising and as, for example, Doyle (2002: 67) points out, advertising is a faulty funding mechanism in that it creates an incentive for the broadcaster to maximize not overall viewer welfare but the supply of whatever mix of programming yields the audience volumes, while patterns of intensity of viewer demand for different sorts of output may be ignored. Even though there are other funding options available (e.g. direct payment from viewers), these are unlikely to elevate market failure. This is explained by the economic theory of discrimination: small groups with atypical preferences will not be served by the market due to impersonal economic processes simply because they are too small to generate profit (Cooper, 2003 : 37). Let us briefly consider instruments aimed at handling/preventing concentration in media markets. The usual tool within the European Union in general and member states in particular is competition law. Competition policy has traditionally worked on the assumption that the efficiency of markets depends directly on their competitive structure and, especially, on the extent of seller concentration. So competition policy may sometimes involve structural interventions i.e. attempts to bring about market structures which are less concentrated on the assumption that this will ensure good behaviour by competing firms to promote improved industrial performance (Doyle, 2002: 168). Limits on media ownership are a typical example of such a structural intervention. A different type of intervention behavioural one is becoming more frequent, this involves regulation that encourages monopolistic firms into behaviour in the public interest (see also p. 27 of current chapter). There are other basic economic characteristics of media that should be borne in mind when assessing economic justifications for media regulation. Doyle (2002: 12) reminds us that media generate two commodities, content and audiences thus they represent a so-called dual-product market. Another significant feature of the media industry is that it is characterized by economies of scale, economies of scale are said to exist in any industry where marginal costs are lower than average costs. When the cost of providing an extra unit of a good falls as the scale of output expands, then economies of scale are present (ibid.: 13). In other words, the cost of supplying the

45 media product to an extra consumer is nil or very low compared to the total cost of making the media product divided by its audience. Further, economies of scope are also commonly characteristic of media enterprises, these are economies at the disposal of firms large enough to engage efficiently in multi-product production and associated large scale distribution, advertising and purchasing (Lipsey and Chrystal as quoted in Doyle, 2002: 14). They arise when there are some shared overheads or other efficiency gains available that make it more cost-effective for two or more related products to be produced and sold jointly, rather than separately. Savings may arise if specialist inputs gathered for one product can be re-used in another. (Doyle, 2002: 14). In other words, media output is such that a product created for one market can be turned into a product for another an interview for a documentary programme can be used for other television/radio programmes as well. It must also be borne in mind that mass communications is a uniquely sensitive industry prone to market failure (Marsden as quoted in Feintuck 1999: 164). Doyle (2002: 64) stresses that the term market failure is usually used in two ways, to describe any failure by the market system to allocate resources efficiently and also to describe a failure of the market to advance socially desirable goals other than efficiency, such as preserving democracy and social cohesion. Baker notes that the most commonly recognized reason for markets to produce inefficient or non wealth-maximizing results is transaction costs that prevent some costs and some benefits from being brought to bear on the actions or decision making of market participants. The consequence of this failure is often described as an externality (2002: 41). Or in the words of the economist Milton Friedman an externality is the effect of a transaction on a third party who has not consented to or played any role in the carrying out of that transaction (Bakan, 2004: 61).50 A frequently mentioned negative externality is pollution, on the other hand an example of positive externality can be a playground freely accessible to all or a nice view. Baker insists that to assess whether media give their audiences what the audiences want we must take externalities into account. Positive externalities mean that the media product has value for which its producer is not paid. The audience pays for the benefit to itself but is deterred from purchasing by being required to also pay for benefits to third parties. In this circumstance, failure to buy does not necessarily mean that the audience does not want the content. ... Rather, it only means that the audience does not want the content at the improperly high price. ... Likewise, negative
50

Bakan is a Canadian professor of law and in his analysis of the corporation makes a very strong and important point: Corporations are created by law and imbued with purpose by law. Law dictates what their directors and managers can do, what they cannot do, and what they must do. And, at least in the United States and other industrialized countries, the corporation, as created by law compels executives to prioritize the interests of their companies and shareholders above all others and forbids them from being socially responsible at least genuinely so (ibid.: 35). In other words, They [corporations] are institutions which have really only one mission, and that is to increase shareholder value (Debora Spar as quoted in Bakan, 2004: 35).

46 externalities permit artificially low prices the audience pays for only a portion of its real cost. Purchases do not mean that the audience wants the content only that it wants the content when charged less than its real cost (ibid., 42).

Baker goes on to rightly point out two particular difficulties with assessing externalities in the media context. The first is that such externalities often involve non-economic values (more informed citizens) and secondly, they often involve freedom of expression (preventing harm to others that is caused by broadcasting a message). A related issue that researchers (as well as policy makers) face is that these externalities are not only virtually impossible to measure. Often their significance, even their valence, is disputable. Therefore, whether any particular regime gives the audience what it wants will likewise be continually contestable. Although empirical information is helpful, the evaluation is inherently political (ibid.: 43). Although my assessment of media policy will only touch upon what can be considered externalities linked to public service broadcasting51, I find it useful to reproduce here the ten generic categories of effects that the production and distribution of media content has on others than the paying audience. These are:

1. The quality of public opinion and political participation. 2. Audience members interactions with other people. 3. Audience members impact on cultural products available to others. 4. Exposing and deterring abuses of power. 5. Other behavioural responses to the possibility of media exposure. 6. Nonpaying recipients. 7. Positive benefits to people or entities wanting their message spread. 8. Messages negative effects on those who do not want the attention. 9. Gains or losses to media sources. 10. Costs imposed or benefits created by information-gathering techniques. (Baker, 2000: 44) Having outlined some of the concerns that market failure raises, it is important to stress that the most commonly used policy tools to address market failures in broadcasting are regulation and public ownership (Doyle 2002: 66), Doyle goes on to argue that of these two options the latter one public ownership is more efficient.
51

Cooper (2003: 42) also stresses that the public at large benefits from the watchdog functio n beyond the value that individual media firms can capture in their market transactions (advertising revenue and viewer payments). Herman (1997) compares externalities linked with commercial and public service broadcasting and argues that in respect of public affairs, cultural and childrens programming (all of which can be sources of positive externalities) commercial media fail. On the other hand, commercial media tend to exploit sex and violence which can result in negative externalities.

47 In Chapter I a reference was made to broadcasting as a public good, in economic terms public goods are non-excludable (i.e. those who do not want to pay for them cannot be excluded from receiving them, e.g. national defence systems protect all) and non-exhaustible. In essence the economic conditions for efficient allocation of a public good require that it should be given away for free. This is because whatever price is charged for pay television [it] will exclude viewers to an extent not justified by the marginal costs that would be involved in allowing them to have the service (Doyle 2002: 78) At the same time broadcasting is a merit good52 which Doyle (2002: 66) characterizes as one where the Government takes the view that more of it should be produced than people would choose to consume, if left to their own devices. Several different motives may be implied when something is treated as a merit good. Among such goods/services we can list education or health care and the motives include positive externalities, the assumption (on the part of the government) that people do not judge their own interests in the best possible manner and also the fact that the goods/services contribute to the maintenance of social values. Broadcasting seems to fit all these categories. It can confer positive externalities. There are some forms of content that are collectively desirable and that everyone benefits from (e.g. documentaries, educational and cultural programmes) but which viewers, on an individual basis, might not tune into or be prepared to pay for (Doyle, ibid.). Some believe that government intervention (regulation) is justified in this respect also because individual choices by individual viewers are highly likely to produce too little public interest programming in light of the fact that the benefits of viewing such programming are not fully internalized by individual viewers (Sunstein as quoted in Cooper 2003: 43). In the previous chapter I have argued that broadcasting has very significant roles to fulfil in relation to citizenship, I briefly discussed some of these roles in relation to public service broadcasting, from the above it should be clear why the market alone cannot deliver sufficient resources for citizenship, here I just reinstate these. Murdock (1992: 23-24) points out that from the beginning it was clear that media ownership concentration and reliance on advertising revenue which resulted in pressure from large advertisers and the privileging of the speech of commerce to the detriment of other voices as well as the pulling of press towards sensationalism significantly limited the role of media in relation to citizenship.53 The fourth justification for regulation that Feintuck identifies is public service. Public service broadcasting systems have been well-established in western democracies, they vary to a great degree and are regulated on a national basis, however, basic common features can be found.

52 53

Nitsche (2001: 18) alerts against confusing merit goods and public goods. Murdock (ibid.) draws attention to the fact that the proposed solution to this undesirable situation was to establish endowed papers (public subsidy as a solution was out of question as this was understood as threatening the independence of the papers from possible government interference) which were to have financial resources from the wealthy and were to be run by boards of trustees and dedicated to rational information and debate.

48 McQuail (1994: 127) argues that broadcasting in the public interest should guarantee universally accessible quality service (defined differently in the different national systems of public service broadcasting), diversity as well as national political and/or cultural interest. I have briefly pointed out characteristics and problems related to public service broadcasting in Chapter I and I return to the specific regulatory provisions in the analyzed countries in the next chapters. The above mentioned justifications present a typology of rationales connected with broadcasting regulation. Apart from these, one also needs to consider techniques which are applied in broadcasting regulation. Feintuck (1999:51) outlines a tripartite classification of techniques: structural, behavioural and content regulation. In shorthand, content regulation refers to limitations being imposed on what cannot or must be broadcast or published, while structural regulation refers to limits on the extent of that which can be owned within any market by any one corporate entity, and, in effect, behavioural regulation generally serves to limit how property held can be used in relation to its impact on actual or potential competitors (ibid.). such

In relation to regulatory techniques applied in the field of broadcasting Feintuck identifies a shift away from structural and content regulation to that of behaviour in the marketplace. Doyle (2002: 169) argues that the changing emphasis reflects important theoretical developments in the area of industrial organization over recent decades. It is now widely recognized that what matters for efficiency is not necessarily the number of rival suppliers that exist in a market per se but whether competitive pressure from incumbent or even potential market entrants is sufficient to induce firms to cooperate efficiently and to deter anti-competitive behaviour.

It also needs to be borne in mind that one of the causes of this shift is technological convergence, Drucker and Gumpert (2000: 44) point out that in the upcoming era of convergence it will also be difficult to regulate content control as to broadcast quotas. It will be more difficult to regulate the content rules, because one can no longer count on television stations. There are countless Internet sites making broadcast regulation hard to control simply because of the sheer quantity of broadcasts. In addition, the consumer can regulate the amount of local sites he visits, if he/she decides to visit local sites at all. For this reason it is unlikely that broadcast quotas (associated with E.U. directives) be adequately applied to the Internet.

49 If one were to use a single word to characterize developments in broadcasting regulation in the past fifteen years, the word would undoubtedly be deregulation. Deregulation has been a buzzword with politicians, governments, competition offices, the International Monetary Fund as well as the World Bank. This chapter focused on deregulation and self-regulation in detail to argue that rather than being miracle cures they indeed raise a whole range of questions, perhaps most importantly among them questions of accountability, transparency and efficiency. In relation to broadcasting deregulation (and indeed I have to stress again that the term is misleading as it does not involve the absence of regulation but a different regulatory approach) raises questions related to diversity (political, cultural, of viewpoints, languages), citizenship (the crucial distinction between consumers and citizens) as well as human rights and freedoms. Deregulation goes hand in hand with an overall pro-competitive ethos and economic justifications thus I considered it important to give at least a brief overview of the economic characteristics of broadcasting (and media in more general). When judging deregulatory (and other legal) measures it is of key importance to bear these in mind, in particular one must not forget that broadcasting is a public and merit good and these types of goods require specific regulatory measures. The chapter also stresses that to argue that deregulated free markets will automatically deliver better services (let us not pause here to consider what this vague term could denote) is entirely misleading for a number of reasons, many of which are linked purely to economics. As I already pointed out perfect competition is almost non-existent, market failures do occur and the economic theory of discrimination (to provide a service to a small number of buyers is often not profitable, simply due to the size of the group) does very much apply. Indeed in the light of these arguments the conclusion that increased regulation in the public interest is necessary comes as no surprise. Other issues at stake faced by regulators (and legislators) are the regulatory regimes/mechanisms to be implemented these issues resonate particularly strongly in the context of technological divergence. Are behavioural, content or structural regulatory mechanisms most appropriate? Is the existence of dual broadcasting regimes justified? How many regulators are needed (nationally and internationally)? Where is the fine line between cultural, citizenship and diversity goals and the threat of jeopardizing the economic potential of media industries crucial for national economies? It may appear that the chapter raises more questions than it actually answers, yet one should remember that the crucial choice is not, as many commentators suppose, between state licensing and control on the one side and minimally regulated market mechanisms on the other. It is between policies designed to reinvigorate public communication systems which are

50 relatively independent of both the state and the market, and policies which aim to marginalise or eradicate them. (Murdock as quoted in Raboy 1996: 9)

The debate about broadcasting regulation is still raging (in particular in relation to convergence) and it is reflected in the broadcasting legislation implemented in the selected countries. At this point the dissertation moves on to a discussion of the cases of the European Union, the Czech Republic, the Slovak Republic and the Republic of Ireland in relation to broadcasting regulation.

CHAPTER III: REGULATION OF PUBLIC SERVICE BROADCASTING: THE EUROPEAN FRAMEWORK

I.

THE EUROPEAN UNION AND BROADCASTING REGULATION

The chapter explores audiovisual policies developed by major transnational European institutions in the late 1980s and 1990s. The analysis concentrates on developments in policy on public service broadcasting, however, reference will also be made to policy documents which relate to the larger audiovisual framework rather than strictly to the specific field of public service broadcasting. The Council of Europe, the European Union54 and the European Broadcasting Union have all been actively engaged in developing audiovisual policies. 55 The extent of the involvement as well as the force and shape of the policy documents differ significantly. Out of the three transnational European institutions it is clearly the European Union whose policies exert most power as they are more binding than those of the Council of Europe. On the other hand, the Council of Europe makes it possible to pursue objectives in respect of audiovisual policies that cannot be achieved within the framework of the European Union, an issue to which I return later. Most importantly the Council of Europe works within the framework of the Convention for the Protection of Human Rights and Fundamental Freedoms of 1950 (hereafter referred to as European Convention on Human Rights) thus its focus in the field of broadcasting is above all concerned with guarantees of freedom of access to information. A third viewpoint on audiovisual policies is presented by the European Broadcasting Union, the public service broadcasters organization. In order to understand the
54

I use the term European Union although it is interchangeable with European Communities or European Community. As Richard Collins explains Title II, Article G of the Treaty on European Union (the Maastricht Treaty [of 1991]) provides, inter alia, for the official designation of the European Economic Community as the European Community. However, approved Brussels usage post-Maastricht, is now European Union rather than European Community (1994: 3, original emphasis). Furthermore, he argues, strictly s peaking the European Community is three communities [the European Coal and Steel Community, the European Atomic Energy Community and the European Economic Community] and should properly be referred to as the European Communities (ibid.). 55 Please note that the terms broadcasting policy and audiovisual policy are used interchangeably.

51 interplay between the three institutions, it needs to be added that the European Broadcasting Union does not generate binding policies, rather it plays an advisory/consultant role to the Council of Europe and the European Union.56 In order to fully appreciate the development of policies in the European Union a brief introduction of its political structure is necessary. The European Union has a legislative branch (the European Parliament), a judiciary (the Court of Justice) and an executive (the Commission of the European Union). The Commission has a Council of Ministers, composed of a representative of each of the Member States. European Union policies are initiated by the Commission and ratified by the Council of Ministers.57 The chapter concentrates primarily on the analysis of relevant policy documents (in particular directives) rather than on the not less interesting and important context of policy making (e.g. public consultations and drafting), nonetheless I make references to the interplay among the various agents, in particular member states and individual Directorates General. 58 Before moving on to the analysis of policy documents themselves, I discuss the nature of the political forum and the various agents who play a key role in decision-making about audiovisual regulation. Collins rightly points out the interplay of three important factors. Firstly, the opposition between policies designed to encourage cultural diversity and those to encourage cultural unity within the European Union. Secondly, the opposition between liberal (market) means to achieve policy goals and interventionist (dirigiste) ones. The interventionist stance advocates interventions in the free market that are justified on the basis of public interest (see Chapter I for more detail on the issue of public interest in communication). The two basic assumptions on which the interventionist stance in broadcasting is based (Collins traces it back to 1983 when the European Commission's Interim Report Realities and Tendencies in European Television: Perspectives and Options was published) are first, that technological change, notably satellite television, will reshape European broadcasting and second that the changes in the content and character of European broadcasting consequent on technological change will reshape the cultural, and hence political, identities of European viewers and listeners (Collins, ibid.: 43). The liberal (market) approach is based on

economic justification of regulation, which allows interventions in the market on limited grounds (see Chapter II). In this respect it needs to be pointed out that liberal means have been advocated particularly by the UK and by the Directorates General III and IV (Internal
56

The scope of the chapter makes it impossible to include all the relevant audiovisual policy documents thus the most important ones were selected. 57 For a detailed discussion of the mechanisms and context of preparing audiovisual policy in the European Union see Collins 1994. 58 I do not take into account non-governmental organizations or public consultations due to the scope of the chapter although I consider them important instruments (albeit of limited effectiveness) for public interference.

52 Market and Competition) of the Commission. On the other hand, the interventionist approach has been supported particularly by France and Directorates General X and XIII (Culture and Information Technology) of the Commission.59 Thirdly, the interaction between various institutions (both within and outside the Commission) that exercise power in the policy making process should as well be taken into account. Collins succinctly summarises the contextual issues in relation to European Union audiovisual policy: The Communitys audio-visual policy is not the product of a single and unified Community vision of the audio-visual sector. Rather it is the result of the tortuous interaction of differing priorities and perspectives of several distinct power centres, notably the Member States of the Community, the European Parliament and rival power centres within the Commission of the European Communities itself (Collins 1994: 27).

Feintuck acknowledges that the European Union potentially has a key role to play in transnational audiovisual regulation yet he stresses that European Communitys activities in relation to the media may be limited by the fact of its primary focus being based upon economics rather than, say, citizenship (1999: 21). In addition to that the o ften competing interests of the member states, as already pointed out, act as a divisive force. Having briefly outlined the nature of the forum in which decision-making takes place and the agents that play a crucial role in the process, I move on to identifying the rationales and goals of the European Union audiovisual policies60 in general terms. European Union Commissioner Marcelino Oreja61 in a memorandum62 of 30 July 1997 states that European Union audiovisual policy has two objectives. Firstly, to creat e a genuine European audiovisual area and make it work and secondly, to implement a strategy for strengthening European audiovisual production industries. In his analysis Collins (1994: 24) identifies only three definite initiatives in the field of audiovisual policy, namely on the creation of a single,

59 60

For a detailed discussion see Collins, especially Chapter 1. Collins (ibid.:134) traces the birth of the Communitys audiovisual policy to 1988 when the European

Council first made a formal reference (at its meeting in Rhodes) to the need to develop Europes audiovisual capacity. Similarly, Nitsche points out that broadcasting was not harmonized in the EU until the late 1980s and that it was the Maastricht Treaty that introduced an EU competence for culture (2001: 10,11).
61

Commissioner Oreja chaired the High Level Group on Audiovisual Policy when its report on audiovisual policy was published in October 1998. 62 Audiovisual policy: progress and prospects. http://europa.eu.int/co mm/avpolicy/legis

53 integrative, competitive European market (Television without Frontiers initiative); on satellite television transmission standards; and on support for audiovisual production and distribution (the so-called MEDIA programme [European measures for the development of the audiovisual industry]). Before analyzing selected documents relating to audiovisual policy in general, I concentrate on documents related particularly to public service broadcasting. 63 The particular importance of public service broadcasting for European Union member states is reflected in the fact that a protocol specifically related to public service broadcasting was in 1997 annexed to the Treaty on European Union64 (Treaty of Amsterdam). The Protocol [No. 32] on the system of public broadcasting in the Member States (further Protocol) opens with the statement that the system of public service broadcasting in Member States is directly related to the democratic, social and cultural needs of each society and to the need to preserve media pluralism. The Protocol includes the following interpretative provision:

The provisions of the Treaty establishing the European Community shall be without prejudice to the competence of Member States to provide for the funding of public service broadcasting insofar as such funding is granted to broadcasting organisations for the fulfilment of the public service remit as conferred, defined and organised by each Member State, and insofar as such funding does not affect trading conditions and competition in the Community to an extent which would be contrary to the common interest, while the realisation of the remit of that public service shall be taken into account.

The major goal of the Protocol appears to be to confirm the role of public service broadcasting (although this role is defined vaguely) and ensure the continued provision of funding for it. It does not clarify values associated with public service broadcasting in any detail, nonetheless it makes a clear reference to media pluralism and the role of public service broadcasting in its maintenance and vague insinuations at public interest (societal needs). The Protocols other goals evidently are to place the funding of public service broadcasti ng under the jurisdiction of member states (as well as the overarching issues related to the definition and organization of public service broadcasting) and to ensure that the funding will not affect

63 64

The number of such documents is not significant. All references to The Treaty on European Union refer to its consolidated version of 2 October 1997, see Official Journal of the European Communities, C 340, 10.11. 1997: 109.

54 trading conditions and competition within the European Union (in this respect the issue of state aid is crucial, see further). More precisely defined goals, values and mechanisms could be analyzed in relation to the specific cases of the member states, this, however, is not the purpose of my analysis. The Protocol makes it clear that regarding justifications for the regulation of public service broadcasting two of Feintucks categories apply, both the public service justification as well as the economic one. As I have already suggested these two justifications appear to be irreconcilable in many respects, moreover, they are characteristic of broadcasting policy pursued by the European Union in general. Public service broadcasting is thus subject also to competition regulation, particularly in relation to questions of state aid and distortion of competition. Indeed Collins suggests that it is an odd features of Community history that policies to do with competition and market structure have been more important than have overt and explicit broadcasting and audio-visual policies in shaping the audiovisual and broadcasting sectors in the European Community (ibid.: 144). In the previous chapter I pointed out that competition policy is viewed as an effective tool for dealing with/preventing concentration in the media market and to prevent market failure, Nitsche (2001: 8) makes an interesting point when she writes that a more populist view conceives of competition, particularly on the global scale, as a struggle for dominance not only between companies, but also between nations, necessarily producing winners and losers which she believes had an impact on the conceptualization of EU audiovisual policy. She goes on to stress that the Protocol certainly did not remove public service broadcasting from the application of the state aid rules. ... Arguably it [the Protocol] reduces the Commissions margin of discretion to the extent that only funding which clearly is not connected to the public service mission is illegal under the state aid rules (2001: 152 153). The most significant interventions on the part of Directorate General IV (Competition) in the audiovisual field involve broadcasters acquisition of rights to sporting events and cinema films (Collins, ibid.: 147), an important issue to which I return in relation to the European Broadcasting Union. For more detail on this crucial and often overlooked aspect see Nitsche (2001, especially Chapter 7), McKenna (2000) and Born and Prosser (2001, a detailed study of the consequences of fair trade obligations for the BBC). The Communitys position in relation to public service broadcasting is further reinforced in the Resolution of the Council and of the representatives of the governments of the Member States, meeting within the Council of 25 January 1999 [further Res olution] concerning public service broadcasting.65 Indeed the Resolution considers the fact that public service broadcasting in view of its cultural, social and democratic functions which it discharges for the common good has a vital significance for ensuring democracy, pluralism,
65

Official Journal of the European Communities C 30, 5.2. 1999:1.

55 social cohesion, cultural and linguistic diversity (emphasis added) and stresses that the increased diversification of the programmes on offer in the new media environment reinforces the importance of the comprehensive mission of public broadcasting in the Member States of the Treaty of Amsterdam. The Resolution also includes a clause stating that broad public access, without discrimination and on the basis of equal opportunities, to various channels and services is a necessary precondition for fulfilling the special obligation of public service broadcasting. The goals of the Resolution obviously include a further reinforcement of the acknowledged importance of public service broadcasting and of conditions for its funding, taking into account specifically the issues linked to technological developments (new audiovisual and information services) which are, importantly, seen as further stressing the need for public service broadcasting. The values that are alluded to in the Resolution include the vaguely defined cultural, social and democratic functions in the public interest and more concretely universality (in terms of public access), diversity (of channels and services), quality (of programming, not further specified) and social cohesion (prevent fragmentation). No reference is made to regulatory mechanisms with which the goals can be achieved, obviously due to the fact that this issue is under the jurisdiction of individual member states (as already pointed out). In a similar vein the Report from the High Level Group on Audiovisual Policy [further Report] of October 1998 states that

the dual system (private and public broadcasters) is a distinctive feature of the broadcasting landscape in Europe. This should not be questioned as such, and it should be left up to individual Member States primarily, as well as to market forces to determine the respective importance of the public and private sectors in each country. However, certain basic principles should apply, and should be translated into a set of concrete criteria for funding arrangements .66

In relation to public service broadcasting the Report identifies two main principles at stake: the first is that public television plays a vital role in most Member States of the European Community, a fact which has recently been acknowledged in the Protocol on the system of public broadcasting in the Member States attached to the Treaty of Amsterdam. The second is that European economic integration is rooted in competition and the free market. The Report goes on to acknowledge that the future of Europes distinctive dual public/private broadcasting system depends on these two apparently incompatible principles being
66

http://europa.eu.int/avpolicy/legis/key_doc/hlg_en.htm, emphasis added.

56 reconciled as far as possible. This acknowledgement is of key im portance as the tension between the two principles and their proponents (as I have already suggested) is characteristic of the regulatory framework. Among values associated with public service broadcasting an open reference is made to cultural diversity, pluralism, universality and quality (in particular of entertainment). Concrete recommendations relating to public service broadcasting do not deal with mechanisms for the achievement of the vaguely acknowledged democratic, societal and cultural roles67 but rather stress the importance of funding arrangements that are to be proportional, open and ensure fair competition in order to realize the economic potential of the audiovisual industry. Importantly, the Report deals with the changing regulatory environment in relation to technological convergence. What is proposed is a move towards deregulation, there is a case to be made for the relaxation of unnecessarily restrictive regulations, especially as terrestrial free-to-air services will have to remain competitive with a host of new services emerging as a consequence of higher capacity on all networks. Deregulation is understood as a means of increasing competitiveness, the deregulatory framework should abide by certain principles and in particular it should encourage competition, pluralism and open, non-discriminatory access. It may take account of other, more specific, public policy goals, primarily set at national level. The report states that

the regulatory framework, in order to evolve without the need for constant adaptation and the consequent lack of legal security, should be more based on principles and consist of less detailed rules. Such principles, however, should include pluralism, the need to provide for quality content, respect for linguistic and cultural diversity and the protection of minors. In addition, clear rules and safeguards are needed to ensure open, non-discriminatory, and equal access both for competing providers and for users to digital networks and services. The framework should also be conducive to fostering European, national and local audiovisual production.

Regarding regulatory mechanisms in the age of convergence the report makes a special reference to the need to maintain specific regulation for audiovisual content, based on the fundamental distinction between public and private communication. It has alre ady been
67

Mr Orejas report to the European Commission Audiovisual policy: progress and prospects of 30 July 1997 deals with the societal and cultural challenges to audiovisual policy, among them he identifies the reflection of cultural diversity, safeguarding of linguistic diversity, developing audiovisual education for children, striking a balance between the cultural and commercial value of certain contents (such as major sporting events, museum and library collections etc.), http://europa.eu.int/avpolicy/legis/key_doc/hlg_en.htm

57 mentioned in the previous chapter that convergence also raises questions regarding the various levels at which regulation is introduced. The report supports European-level cooperation between national regulators and it does not consider it crucial to create a regulatory body at the Community level. At the global level it is essential that the specificity of content and legitimacy of public policy objectives based on cultural diversity and pluralism of expression is recognized in international trade negotiations. According to Nitsche (2001: 35)

it appears that both the Commission and the Council consider self-regulation not with regard to broadcasting but within the context of new media, most notably the Internet. Hence, it will become significant for broadcasting only if that convergence will advance considerably in the future, ultimately blurring the distinction between watching television the traditional way and over the Internet. But even on this assumption, the role of self-regulation at Community level will be limited and will exclude publicinterest considerations, which are likely to remain exclusively within the Member States competence.

The above discussion has already hinted at the lack of legislative measures related to public service broadcasting and the contradictory justifications for its continuing existence, on the one hand the economic justification and on the other the public service one. Ward (2003) thinks that the stress on the European Unions pro-competitive stance in relation to public service broadcasting is exaggerated, he believes that the Commission understands its role as solely confined to assessing the funding structure of public service broadcasting systems and he provides examples of cases in which the Commission made decisions that confirmed that the definition of public service remained within the jurisdiction of individual members states. Wards point is a valid one but he misses the fact that legislative measures at the transnational European level are crucial for securing citizens (not only consumers) rights in relation to public service broadcasting. The most important European Union initiative in the audiovisual field has been Directive 89/552/EEC Television without Frontiers68 of 3 October 1989. This directive is not specifically tailored for public service broadcasting nonetheless it is the clearest manifestation of goals and values as well as mechanisms for their achievement in the audiovisual field and importantly it is a cornerstone of audiovisual regulation in all member states.

68

The full name of the directive is Directive 89/552/EEC on the coordination of certain provisions laid down by Law, Regulation or Administrative Action in Member States concerning the pursuit of television broadcasting activities. However, the directive became known as Television without Frontiers.

58 Television without Frontiers69 The implementation of the Television without Frontiers Directive [further Directive] was preceded by a Green Paper on the Establishment of the Common Market for Broadcasting, especially by Satellite and Cable [further Green Paper] of 1984. Richard Collins (1994)70 traces the context in which the Green Paper as well as the Directive itself were drafted. He points out that throughout the process the balance between the liberal and the interventionist approach shifted, the final content of the Directive contains more provisions which support interventionist objectives than liberal objectives, none of the interventionist provisions are of such fundamental importance as Article 2 which has the effect of abolishing the Member States sovereignty over their national television systems. Moreover the interventionist provisions in the Directive (such as the European content quota) are generally weak. ... Indeed, the Directive has been described as a victory for commercial forces and those who favoured antiprotectionist policies (1994: 69). The wording of the Directive was significantly influenced by the adhesion to transmission (or emission) theory according to which broadcasters only need to acquire rights for the country from which their broadcasting originates as opposed to communication theory according to which broadcasters are obliged to purchase rights for all the countries in which the broadcasts are received.71 This, however, bears no significance for my analysis as neither of the approaches relates directly to questions of public interest/public sphere. Collins (1994: 69) summarises the objectives of the Directive in the following points:72

creating a common market in television broadcasts and programme supply; promoting independent production and distribution enterprises, and in particular by small and medium sized enterprises; stimulating the audio-visual sector in countries with a low production capacity and/or in a restricted language area; establishing minimum
69

My analysis of this document is based on the Directive 89/552/EEC as well as on Directive 97/36/EC of 30 June 1997 which amends the original Directive. Main changes occurred in the articles concerning the broadcasting of major events, the articles of most concern to this paper that deal with European programmes have not undergone significant changes. 70 In this respect see especially pp. 53-63. 71 For a more detailed discussion see Collins 1994: 58-59. 72 The actual chapter headings are as follows: Chapter 1 Definitions; Chapter 2 General Provisions; Chapter 3 Promotion of distribution and production of television programmes; Chapter 4 Television advertising and sponsorship; Chapter 5 Protection of minors; Chapter 6 Right of reply; Chapter 7 Final provisions.

59 standards for television advertising and sponsorship, prohibiting the advertising of certain products, including tobacco, and regulating the advertising of alcohol on television; establishing a European content quota and enabling the Member States to establish specific language regulations and quotas) and protection for the cinema exhibition sector; establishing a right to reply; protecting minors from undesirable programming, especially violent or pornographic programming.

It is thus clear from this brief characterization that the primary objectives are strictly connected with the economic goal of creating a common market with undistorted competition. There is, nonetheless, a reference in the wording of the Directive to ensuring fair competition without prejudice to the public interest role to be discharged by the television broadcasting services. It has already been made clear that the major and strongest justification for the Directive stemmed from economic (or liberal) concerns while the justification based on diversity (or the interventionist approach) was relatively weak. The most important interventionist achievement was the introduction of the so-called quotas on European production, as Article 4 (1) of the Directive stipulates: Member States shall ensure where practicable and by appropriate means, that broadcasters reserve for European works, within the meaning of Article 6, a majority proportion of their transmission time, excluding the time appointed to news, sport events, games, advertising and teletext services and teleshopping. This proportion, having regard to the broadcasters informational, educational, cultural and entertainment responsibilities to its viewing public, should be achieved progressively, on the basis of suitable criteria.

The significance (or rather insignificance) of the quota is also reflected in the fact that the Commissions report73 on the application of the Directive does not make a reference to the quotas. The communication value that can be identified in the Directive is freedom (of reception) and crucially economic freedom in communication (the Directive stresses the freedom of movement and trade and the prevention of dominant position). Interventions in this freedom are justified in the Directive in specific cases and that based on public interest

73

Third Report from the Commission to the Council, the European Parliament and the Economic and Social Committee on the Application of Directive 89/552/EEC Television without Frontiers of 15 January 2001, http://europa.eu.int/comm/avpolicy/regul/twf/applica/ap-int-e.htm

60 and protection of minors. The amended Directive has a new Article (3a) ensuring the rights of public to follow events of major importance for society:

Each Member State may take measures in accordance with Community law to ensure that broadcasters under its jurisdiction do not broadcast on an exclusive basis events which are regarded by that Member State as being of major importance for society in such a way as to deprive a substantial proportion of the public in that Member State of the possibility of following such events via live coverage or deferred coverage on free television.

In the case of the Directive the regulation is clearly justified on economic grounds, the perceived benefits of competition are not dealt with. The mechanisms used for achieving its objectives are mainly behavioural, regulation of content is applied in exceptional cases (such as the quotas on European works, restrictions on advertising). Thus in general European Union audiovisual policy appears to be driven by economic interest, justifications based on the notion of effective communication (as outlined by Feintuck), diversity and public service are infrequent and vague and is characterized by a trend away from citizen-oriented regulation towards consumer-oriented. Although there are programmes within the framework of the European Union (namely MEDIA) that aim at increasing the competitiveness of the European media industries, pro-active regulatory measures tend be lacking.

II.

The Council of Europe

The Council of Europe was established in 194974 and its structure is rather loose, the most important unifying element is its members assent to the European Convention on Human Rights. The Council of Europe has a decision-making body (The Committee of Ministers, composed of the Ministers of Foreign Affairs of the Member States), a deliberative body (The Parliamentary Assembly, its members are appointed by national parliaments) and a consultative body representing local and regional authorities (The Congress of Local and Regional Authorities of Europe). Unlike in the case of the European Union, adherence to the measures of the Council of Europe is voluntary and depends from case to case. Conventions require ratification by seven member states and must be incorporated specifically into the legislature of the individual members. Ministerial
74

Collins lists the founding members in the following order: the United Kingdom, France, Belgium, the Netherlands, Luxembourg, Sweden, Norway, Denmark, Italy and Ireland. He further draws attention to the fact that the Councils conception is variously to Sullys Grand Design of 1638 for a union of European Christendom and to Penns 1693 programme of European political union put forward in his Essay towards the Present and Future Peace of Europe by the Establishment of a European Diet; Parliament or Estate (1994 : 122). All the Member States of the European Union are also Member States of the Council of Europe.

61 recommendations require unanimous support of the Councils Committee of Ministers and specific legislatures by member states. Decisions are made by the Committee of Ministers and the Parliamentary Assembly has a consultative status in the process. Collins makes the point that the Council of Europe has enabled its Ministers to reach agreements and to develop initiatives which are both weaker and wider than those developed within other institutional contexts such as the European Communities (1994: 123). Concrete examples of such pro-active initiatives are policies supporting film production (EURIMAGES The European Support Fund for the Co-Production and Distribution of Creative Cinematographic and Audiovisual Works) as well as partial agreements, which are impossible to develop within the European Union. As I have already suggested, the major difference between audiovisual policies developed within the Council of Europe as compared to those developed within the European Union is the stress that is put on the European Human Rights Convention which guarantees every person freedom to receive and impart information and ideas without interference by public authority, regardless of frontiers (Collins 1994: 125). The Council of Europe has in the past two decades held a number of Ministerial Conferences on Mass Media Policy. 75 The output of the Conferences includes a number of recommendations, resolutions and declarations. In respect of public service broadcasting the most important was the 4th Ministerial Conference on Mass Media Policy (held in Prague on 7-8 December 1994). The proposed objective of Resolution No. 1: The Future of Public Service Broadcasting is to outline general principles related to public service broadcasti ng and to provide a detailed policy framework for public service broadcasting. The general principles affirm the commitment to maintain and develop strong public service broadcasting systems, acknowledge that both privately and publicly owned organizations can provide such service, undertake to guarantee at least one comprehensive wide-range programme service comprising information, education, culture and entertainment accessible to all members of the public (Texts 1998:35-36). Further, the participating states in the conference undertake to define clearly, in accordance with appropriate arrangements in domestic law and practice and in respect for their international obligations, the role, missions and responsibilities of public service broadcasters and to ensure their editorial independence against political and economic interference (ibid.). The policy framework deals with key issues such as public service requirements, funding, economic practices, independence and accountability as well as means of transmission, new communication
75

The dates and topics of the individual conferences dealt with in this paper are as follows: 1 st European Ministerial Conference on Mass Media Policy: The Future of television in Europe (Vienna, 9-10. 12. 1986); 2nd European Ministerial Conference on Mass Media Policy: European Mass Media Policy in an international context (Stockholm, 23-24. 11. 1988); 3rd European Ministerial Conference on Mass Media Policy: Which way forward for Europes media in the 1990s? (Nicosia, Cyprus, 9-10. 10. 1991); 4th European Ministerial Conference on Mass Media Policy: The media in a democratic society (Prague, 7-8. 12. 1994); 5th European Ministerial Conference on Mass Media Policy: The Information Society: a Challenge for Europe (Thessaloniki, 11-12. 12. 1998).

62 technologies and European co-operation. In respect of the framework the following values associated with public communication and in particular public service broadcasting can be identified: freedom and independence (from political and economic interference), universality (of access and content), social cohesion, diversity respectively pluralism, public discussion (for which public service broadcasting provides a forum), quality (of programming) and accountability to the public. A particularly interesting element of the framework is its section entitled economic practices which stipulates that participating states should endeavour to ensure that economic practices such as the concentration of media ownership, the acquisition of exclusive rights and the control over distribution systems such as conditional access techniques, do not prejudice the vital contribution public service broadcasters have to make to pluralism and the right of the public to receive information (ibid.: 37). The reason why this is so strikingly different from previously analyzed documents is that it in effect puts the public service remit above competition and rather takes a reversed stance as compared to that of the European Union (it does not effectively justify breaches of undistorted competition by public service broadcasters but suggests that competition law cannot be unproblematically applied to public service broadcasting). Similarly, the earlier Resolution No. 1: Media Economic and Political and Cultural Pluralism of 1991 (one of the outcomes of the 3rd European Ministerial Conference on Mass Media Policy held in Nicosia on 9-10 October 1991) expresses the conviction that the issue of media concentrations should not only be regulated on the basis of economic criteria but should be dealt with primarily from the perspective of measures designed to safeguard political and cultural pluralism (Texts 1998:21). A consistent theme running through the documents relating to the Ministerial Conferences is the obligation to support audio-visual works produced by those European partners with a low audio-visual output or limited geographic or linguistic coverage (Texts 1998:33). The most important initiative in the field of audiovisual regulation that has been implemented by the Council of Europe is the European Convention on Transfrontier Television of 5 May 1989 [further Convention]. European Convention on Transfrontier Television76 Preparations of binding legal instruments on aspects of transfrontier broadcasting started after the 1st European Ministerial Conference on Mass Media Policy held in 1986. The preparation of the Convention was prompted by the development of communications satellites and wide-band cable

76

My analysis relies on the text of the European Convention on Transfrontier Television, European Treaty Series No. 132, 5.5. 1989 as amended according to the provisions of the Protocol, European Treaty Series No. 171, 1.3. 2002 and the accompanying explanatory report.

63 systems. The text of the Convention was opened for signature on 5 May 1989 and it came into force on 1 May 1993. The development of the European Union Television without Frontiers Directive and of the European Convention on Transfrontier Television was undertaken in parallel. In the case of member states of both the European Union as well as the Council of Europe (which ratified the Convention) priority is given to the European Union Television without Frontiers Directive. The original European Convention on Transfrontier Television was revised in 2002 in order to align it with the Television without Frontiers Directive in a number of respects (including provisions on sponsorship, advertising, events of major importance). The wording of some articles is identical with those of the Directive, in this respect Collins makes the important point that accession by non-member states [of the Council of Europe] to the Convention on Transfrontier Television will serve to extend the rules of the European Communitys single broadcasting market beyond the territorial limits of the Community (ibid.: 127). A major difference between the Television without Frontiers Directive and the Convention on Transfrontier Television occurs at the level of objectives as well as underlining values, moreover the Convention sets common minimum rules that can be made stricter by the signing parties. The main objective (according to the explanatory report on the Convention) is to strengthen the free exchange of information and ideas by encouraging the transfrontier circulation of television programme services on the basis of a number of commonly agreed basic standards. Similarly, the Conventions Preamble77 states that the signatory Parties reaffirm their commitment to the principles of free flow of information and ideas and the independence of broadcasters, which constitute an indispensable basis for their broadcasting policy, express the conviction that the continued development of information and communication technology should serve to further the right, regardless of frontiers, to express, to seek, to receive and to impart information and ideas whatever their source and express the desire

to present an increasing range of choice of programme services for the public, thereby enhancing Europe's heritage and developing its audiovisual creation, and [the Parties] being determined to achieve this cultural objective through efforts to increase the production and circulation of highquality programmes, thereby responding to the publics expectations in the politi cal, educational and cultural fields.

77

The individual chapters of the Convention are as follows: Chapter I General provisions; Chapter II Programming matters; Chapter III Advertising and tele-shopping; Chapter IV Sponsorship; Chapter V Mutual Assistance; Chapter VI Standing Committee; Chapter VII Amendments; Chapter VIII Alleged violations of this Convention; Chapter IX Settlement of disputes; Chapter X Other international agreements and the internal law of the Parties; Chapter XI Final provisions.

64 The same is reinforced in Article 4 of the Convention: The Parties shall ensure freedom of expression and information in accordance with Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms and they shall guarantee freedom of reception and shall not restrict the retransmission on their territories of programme services which comply with the terms of this Convention. The values that can be identified in the Convention include: freedom (of expression, transmission, information, from economic and political pressure), quality, diversity (choice), pluralism (of options and media), independence (on the part of broadcasters), equality (between men and women in the media) etc. The wording of the Convention Article 10 (1) and of Article 4 (1) of the Directive both concern quotas on European works, yet the wording of the Convention is not so specific, for example in terms of defining what constitutes a European work. Similarly to the Directive, the Convention also has a clause that guarantees the access of public to events of major importance. In respect of public interest as reflected in the Convention, it includes an article dealing with the responsibilities of the broadcaster, namely Article 7 that contains provisions obliging to respect human dignity and fundamental rights of others as well as the protection of minors. However, more important in this respect is section 3 which stipulates that the broadcaster shall ensure that news fairly presents facts and events and encourages the free formation of opinions. The set-up of concrete mechanisms for implementation falls under the jurisdiction of ratifying states, however, clearly mostly behavioural and content (protection of minors, standards of decency, quotas etc.) regulation is involved. In terms of Feintucks distinction of justifications for audiovisual regulation the European Convention on Transfrontier Television involves above all effective communication. Numerous examples of justifications of regulation based on diversity and public service can be found in Council of Europe audiovisual policies. I have not been able to trace examples of the justification of economic interest in Council of Europe audiovisual policy documents analysed in this paper. Council of Europe audiovisual policies seem to provide more space for citizen-oriented provisions, however, it must be remembered that these are less binding (thus in effect weaker) than those of the European Union.

III.

THE EUROPEAN BROADCASTING UNION

Another important transnational European viewpoint in relation to regulation on public service broadcasting is provided by the European Broadcasting Union. The nature and objectives of the Union are significantly different from those of either the European Union or the Council of Europe. Most importantly the Union does not generate binding audiovisual policies but rather acts as a

65 consultant/observer in policy-making within the framework of the European Union and the Council of Europe. The EBU was founded in February 1950, it merged with the OIRT (the former union of broadcasting organizations from Central and Eastern Europe, with the exception of former Yugoslavia) in 1993. The EBU has 70 active members in 51 countries of Europe, North Africa and the Middle East and 46 associate members in 28 countries which are further afield. In terms of its structure the European Broadcasting Union has a Secretariat, and Administrative Council, and a General Assembly.78 In the 1980s the European Broadcasting Union was instrumental at the attempted creation of pan-European television broadcasting.79 Among the Unions major activities one finds the Eurovision permanent network which serves as a constant exchange of news and programmes. The Union is also involved in collective acquisition of broadcasting rights, it contributes to research and development of new broadcast media and very importantly provides legal support at defending the interests of its members at international organisations, particularly the European Union and the Council of Europe. It is clear from the nature of the organization that it does not produce policy documents that I could analyze. Rather, I decided to mention the EBU briefly as it is a major lobbyist organization and it has been active in defending the rights of public service broadcasters especially in the face of anti-competitive charges. The above mentioned practice of collective acquisition of rights (e.g. the EBU formed the Eurosport Consortium to purchase sports rights for its members), this, however, was seen as distortion of fair competition by commercial competitors and indeed the European Unions Competition Directorate challenged the European Broadcasting Union on this matter. Major sporting events have been understood as events of such significance that the public in general must be guaranteed access to them. This right of the public has become increasingly difficult to protect against allegations of anti-competitive behaviour and in fact these issues are likely to become even more complex with the advent of digitalisation and in particular in the sphere of sport the dominance of BSkyB (in this respect see e.g. Rowe (2004)). This chapter dealt with regulation related to public service broadcasting implemented within the framework of the European Union and the Council of Europe. Compared to the other chapters this one is relatively brief as very little regulation has been proposed and passed by the two organizations in relation to public service broadcasting. I argued that EU legislation is more important in this respect as it is more binding than the looser legislation passed by the Council of Europe. I pointed out the major differences in the goals, justifications and mechanisms that we find in regulation implemented by the two organizations. I have also pointed out more general policy
78 79

For more details on the structure and offices held see http://www.ebu.ch. For more details see Collins, 1994:45-50.

66 documents that show that there is a certain (albeit vaguely defined) commitment to public service broadcasting within EU but concrete measures related to it remain within the jurisdiction of individual member states (they are, however, subject to EU trade rules and competition measures). It is important to keep in mind that the nature of the institutions themselves determines the character of legislation they pass thus it comes as no surprise that the most important EU measure in relation to broadcasting establishes a common European audiovisual market in order to increase the competitiveness of the European media industry. At the same time though the fact that a protocol on public service broadcasting was annexed to the Treaty on the European Union is a fact that should not be underestimated. EU policy documents seem to favour the continuing existence of dual broadcasting systems in Europe and they also hint at the conflicting nature of economic and cultural measures and the unease with which they are combined. In general terms EU regulatory measures in the field of broadcasting tend to be in line with the deregulatory trend, yet, interestingly, policy documents argue that even at an age of deregulation attention should be paid to the regulation of audiovisual content. Other measures that we could term as those passed in the public interest include provisions on the broadcasting of major events. The programmes set up by EU that support the audiovisual field are again mainly driven by the goal of increasing the competitiveness of the European film industry rather than other concerns. Also in the case of the Council of Europe there is not much legislation that would relate directly to public service broadcasting and, as I already suggested, the legislation passed by EU has prevalence over that passed by the Council for those states that are members of both organizations. Yet, the more general broadcasting legislation and policy developed within the framework of the Council is determined by different goals, related mainly to human rights. The chapter has provided a brief overview of the European Broadcasting Union, the major supranational organization of European (albeit not strictly) public service broadcasters. Although EBU does not prepare and pass legislation it has certain roles to play in the passage of regulatory measures at the level of EU as well as individual European states. Also, and importantly, EBU has in some cases not only lobbied as a united front of public service broadcasters but also purchased broadcasting rights etc. Having established the European dimension within which to consider public service broadcasting regulation the dissertation moves on to consider the case studies of the Czech Republic, Slovakia and the Republic of Ireland.

CHAPTER IV: Public Service Broadcasting in the Czech and Slovak Republics

I.

Developments prior to the break-up of Czechoslovakia (1989-1992)

67 In November 1989 the waves of the Velvet Revolution swept through the then Czechoslovak Socialist Republic. The Revolution brought with itself the fall of communism and the following establishment of democratic rule and market economy. This process naturally affected the sphere of broadcasting as well. Up to 1989 the Czechoslovak broadcasting system consisted of two broadcasters: the Czechoslovak Television and the Czechoslovak Radio. The socialist Czechoslovak Television80 had two nationwide channels: one covered the whole area of Czechoslovakia, and the second broadcast Czech programmes in the Czech part of the country and Slovak ones in the Slovak part. Before discussing developments in broadcasting, I have to mention that following the Velvet Revolution Czechoslovakia became a federal republic the Czechoslovak Federal Republic81 thus decisions on broadcasting were made at a number of levels. Decisions that affected the territory of the whole federation were passed by the federal parliament (called the Federal Assembly), at the level of the federal republics decisions were made by the Czech National Council and the Slovak National Council, respectively. I do not deal here in any detail with characteristics of communist Czechoslovak broadcasting82 but rather point out systemic changes that followed the Velvet Revolution and aimed at transforming a centralized, state-run, state-controlled, censored83 institution the Czechoslovak Television into a public service broadcaster that operates under free market conditions.84 After the fall of communism the Czechoslovak Television (CST) embarked on a process of transformation into a public service broadcaster, on 4 September 1990 the first national channel became Federal 1 (a Czechoslovak channel) and the second CST channel was divided into the Czech (CTV) and the Slovak (S1) parts. The third channel previously occupied by Soviet broadcasts was replaced by OK3 in the Czech Federal Republic (it started broadcasting on 15 May 1990 and offered a mixture of satellite rebroadcasts) and TA3 in the Slovak Federal Republic
80

Although I deal with changes in broadcasting that followed after 1989, my main concern is with developments in television broadcasting. 81 During 1990 a debate raged about the official name of the country, especially representatives of the Slovak Federal Republic were unhappy with the name Czechoslovak Federal Republic. For a while the Czech administration used the name Czechoslovak while the Slovak used Czecho-Slovak, eventually the name was changed into the Czech and Slovak Federal Republic. 82 For more details on communist media systems see Sparks (2000). He points out that there did not exist a single communist type of media system that was reproduced in the same form and that the different media systems of the communist period underwent substantial changes, they were not the static articulation of central theories or values (2000, p. 39). Sparks also suggests that contrary to Western perceptions communist media systems did not seriously attempt to control access to Western media. There was very little evidence, at least for the last decade of their existence, of any systematic attempt to control the symbolic landscape in the way predicted by the dominant theory (Sparks, 2000, p. 39). 83 In communist Czechoslovakia censorship in media worked largely through self-censorship. In 1968 this de facto censorship was lifted but it was restored after the intervention of the Warsaw Pact armies (in which Romanian troops did not participate) (Skolkay, 1997). 84 The sphere of radio broadcasting underwent similar changes, a public service broadcaster was established (or more precisely the socialist Czechoslovak Radio was transformed into a public service radio broadcaster) and the market was opened up for commercial radio broadcasters.

68 (started broadcasting on 6 June 1991), however, it interrupted its broadcasting in 1992 and following an unsuccessful search for foreign investors the TA3 licence was handed back in 1994. The change did not involve only a change of name but also changes in the mission, organization and programming of the television. Still under federal arrangements, on 1 July 1991 the Slovak National Council established the Slovak Television (The Act of the Slovak National Council No. 254/1991 Coll. on the Slovak Television) and on 1 January 1992 the Czech National Council established the Czech Television (The Act of the Czech National Council No.483/1991 Coll. on the Czech Television), these became responsible for the entire content that was broadcast on the shared second channel (the Czech CTV and the Slovak S1). At the time the Czechoslovak Television still ran the first channel F1, it made news and current affairs programmes for it, other programmes were supplied by the Czech Television and the Slovak Television.85 Before I discuss the establishment of public service broadcasters (and the legal framework within which this occurred), I make some brief general comments. In terms of a concrete model of public service broadcasting, both the Czech and Slovak legislators opted for the public service one (see Chapter I and James Currans distinction among three types of systems of public service media) and the dual system of public service and commercial broadcasting was to be established. Yet, Eastern Europeans intended to implant this model under a particular set of circumstances. As Sparks points out: The [British] broadcasters who made up this duopoly were serious because they could afford to be, as they did not compete for revenue. They were impartial because they were obliged to be by regulation. They were able to be impartial because they existed in a political environment in which government intervention in broadcasting was a relative rarity. Manifestly, neither of these sets of conditions exists in the former communist countries. Given these circumstances, it is nave in the extreme to imagine that the media systems of post-communist countries can be assimilated to those of the Anglo-Saxon model (1998: 177).

As I demonstrate further the major problem that the nascent public service broadcasting system faced was the influence that politicians exercised over it, this influence was not direct but since the Velvet Revolution bodies regulating and supervising broadcasting have been dominated by politicians, respectively political interests.
85

On paper this arrangement might look fairly straightforward, however, one can imagine the complications that resulted, for example, from the overlapping coverage of news and current affairs.

69

Public service broadcasting, where it has been nominally created, is usually parliamentary broadcasting: the role of parliament in appointing broadcasting regulatory and supervisory bodies is so strong that public broadcasters do not really represent the public, but the parliamentary majority. ... In any case, public service broadcasting can hardly develop fully where civil society is weak, politicians are pre-eminent in public life and any notion of the public interest and public service is overshadowed by political interest (Jakubowicz, 1999, p. 57).

Moreover, when discussing public service broadcasting one also needs to bear in mind that private commercial broadcasters may also be bound to provide programmes in the public interest and such programming thus forms part of the public service system. The Act of the Slovak National Council No. 254/1991 Coll. on the Slovak Television set up the Slovak Television (STV) as a legal person and stipulated that it was to serve the public by creating and broadcasting programmes based on principles of democracy, humanism, ethics, truthfulness, independence, professionalism and respect for law (paragraph 3, section 1). In more concrete terms STV was to provide objective and timely information, spread national culture, support the interests of national minorities and ethnic groups (by providing programming in their languages), archive programming of national cultural value. The Act established the Council of the Slovak Television that was to safeguard the objectivity and independence of STVs programming (basically a supervisory body), in concrete terms the Council was to approve long-term plans and investments, pass the statute of STV and its employees, make decisions about the allocation of broadcasting time to political parties, movements and civic organizations, pass the programming codex which includes general guidelines for production, programme set-up and co-ordination of programmes, set restrictions on the broadcasting of advertisements and to discuss STVs budget. Each political party in the Slovak National Council appointed/dismissed one member of the Council, the Slovak government three members, the consultative body three members and the director general 4 members. Interestingly, membership in the Council was to be honorary, members would have their travel and other expenses related to their work in the Council reimbursed. The director general of STV was appointed/dismissed by the Presidium of the Slovak National Council upon a proposal from the Council of the Slovak Television. The act also set up a consultative body that was to protect the interests of television viewers. This was an advisory body which had members appointed by political parties and movements that were not represented in the National Council as well as churches, trade unions and civic organizations. A licence fee (its amount stipulated in a decree) and income from advertising represented STVs source of income. Limits on

70 time devoted to advertising were stipulated in the Act of the Federal Council of the Czechoslovak Federal Republic No. 468/1991 Coll. on Radio and Television Broadcasting, in the case of STV a maximum of 3% of daily broadcasting time which could be increased to a maximum of 10% by teleshopping. Similarly, the Act of the Czech National Council on the Czech Television No.483/1991 Coll. established the Czech Television as a legal person, it was to serve the public by producing and broadcasting programmes accessible in the whole territory of the Czech Republic, by providing objective, verified, balanced and varied information that would help the formation of opinions, by developing the culture of the Czech nation and national and ethnic minorities, by mediating ecological information, by helping the education and upbringing of the young generation, by contributing to viewers entertainment. The Council of the Czech Television the televisions supervisory body was to have nine members who were elected by the Czech National Council in such a way that they represented significant regional, cultural, social and political viewpoints. The Council was to appoint/dismiss the director general of CT, it was to appr ove CTs budget, annual balance and statute, it presented an annual report on CTs accounts to the Czech National Council and it was also the authority that made decisions about complaints relating to the director general. The Councils activities were financed by CT and its members were remunerated on the basis of a special decree that determined the salaries of civil servants. The Czech Television was to be financed from a licence fee, income from its own business activities as well as income from advertising (at most 3% of the total daily broadcasting time could be used as advertising time increased to 10% by teleshopping). Czechoslovak public service broadcasting was from its very beginning financed from a licence fee and income from advertising. A decree from 1985 which was valid until 1991 set the licence fee at 10 Czechoslovak crowns per month in the case of radio and 25 Czechoslovak crowns per month in the case of television (Decree no. 51/1985). In 1991 the radio licence fee was 20 Czechoslovak crowns per month, the television one 50 (Decree no. 100/1991). The licence fee was paid for each radio/television set and only people with low income were exempted from payment. To change the amount paid as licence fee or the conditions of payment required the passing of a new act (respectively, an amendment to the existing one). In 1992 the Slovak National Council passed new legislation regulating public service broadcasting. The Act of the Slovak National Council No. 482/1992 Coll. on the Slovak Television significantly changed the set-up of the Council of the Slovak Television, it reduced the number of its members to nine and they were to be elected/dismissed by the Slovak National Council (nominations for membership could be submitted by the relevant committees of the National

71 Council). The act brought an end to the short-lived consultative body arrangement and a slight change in relation to the director general who was to be appointed/dismissed by the entire National Council (not only its presidium). The decisions on members of the supervisory body, however, still remained completely in the hands of politicians and this decision did nothing to de-politicize STVs supervision. In parallel with the transformation of the Czechoslovak Television, the transformation process also began in the Czechoslovak Radio. Developments and legal stipulations related to public service radio were very similar to those of television. The Slovak Radio was established by the Act of the Slovak National Council No. 255/1991 Coll. on the Slovak Radio. Similarly as in the case of television, the Act outlined the role of public service radio, it established the Slovak Radio as a legal person, defined its public service roles in the same way as in the case of television and set up the Radio Council to guarantee the objectivity and independence of programming. Members of the Council were to be elected in the same way and were to have the same duties as in the case of television, the Act also established a consultative body. Similarly, membership in the Radio Council was honorary, with travel and other related expenses reimbursed. The major sources of the Slovak Radios income were licence fee and income from advertising (maximum 5% of daily broadcasting time). In 1992 the Slovak National Council passed a new act related to the Slovak Radio, the Act of the Slovak National Council No. 483/1992 Coll. on the Slovak Radio which changed the set-up of the Radio Council in exactly the same way as for television. Mainly, the Radio Council was to have nine members who were elected/dismissed by the Slovak National Council (nominations for membership could be submitted by the relevant committees of the National Council). The act brought an end to the existence of the consultative body and the radios director general was to be appointed/ dismissed by the entire National Council (not only its presidium). In a similar vein, the Act of the Czech National Council No. 484/1991 Coll. on the Czech Radio applied the same stipulations as introduced in the case of television to radio. The Radio was to have the same obligations in relation to serving the public, the Radio Council (just like the Council of the Czech Television) was to have nine members elected by the Czech National Council, these were to be elected in such a way that they represented significant regional, cultural, social and political viewpoints. The expenses involving the Council were to be paid by the Radio. Members of the Council were paid remuneration on the basis of the same decree as in the case of television. The Radios major sources of income were to be the licence fee, commercial activities and income from advertising (at most 5% of daily broadcasting time). Czechoslovakia was among the first countries of the post-communist block that passed a broadcasting law (the law was passed on 30 November 1991 under the name of the Act of the

72 Federal Council of the Czechoslovak Federal Republic No. 468/1991 Coll. on Radio and Television Broadcasting)86. Most importantly, the Act made it possible for legal persons (these must have an office/headquarters in the Czechoslovak Federal Republic - CSFR) as well as natural persons (permanently resident in CSFR) to broadcast in CSFR. The Act included basically no limits on ownership (whether local or foreign), it stipulated that decisions on licence applications should be made in such a way that the applicant would not gain a dominant position in mass media. Licences were to be awarded for a maximum of 12 years in the case of television broadcasting and 6 years in the case of radio and their award was subject to the fulfilment of a variety of criteria and conditions, among these are of particular importance sections 4,5,6 of paragraph 10 of the Act. These sections were most clearly linked to public interest, according to section 4 the bodies that award licences judge the applications also in relation to establishing plurality and balance of programmes (above all local ones); ensuring access to cultural values, information and opinions and the development of the culture of nations, national minorities and ethnic groups living in the Czechoslovak Federal Republic. According to section 5, the award of a licence should not have resulted in a dominant position in mass media. Section 6, then, stipulated that in the case of foreign applicants for a licence, the applicants contribution to the production of original national works would be taken into account. The Act made a very general reference to the obligations of public service broadcasters as these were in more details dealt with in the laws passed by each republic (see above). It established the public administrative body that was to administer the field of radio and television broadcasting, the Federal Council for Radio and Television Broadcasting. The Council was responsible for the supervision over compliance with the Act on Radio and Television Broadcasting, the award of licences for broadcasting in the whole territory of the Czechoslovak Federal Republic87, for imposing fines for not complying with the conditions of the licence or legal stipulations (at the most extreme the Council could revoke a licence). The Council had nine members who included specialists, personalities and representatives of public life; the Federal Assembly, the Czech National Council and the Slovak National Council each elected three members of the Council. The 1991 Act on Radio and Television Broadcasting also stipulated the

86

In this respect md (2005) points out that the original expectation was to pass an act that would regulate all media yet the political representations of the two federal republics could not come to an agreement in this respect and thus the restriction to broadcasting. 87 The Slovak Council for Radio and Television Broadcasting (established by the Act of the Slovak National Council on the Council of the Slovak Republic for Radio and Television Broadcasting No. 294/1992Coll ) and the Czech Council for Radio and Television Broadcasting (established by the Act of the Czech National Council on the Council of the Czech Republic for Radio and Television Broadcasting No. 103/1992 Coll. ) were responsible for issuing licences for broadcasting in the territory of each of the federal republics (see p. 10). Before these broadcasting councils and the federal one were established licences were awarded by a special committee of the Ministry of Culture, by the presidium of the federal government or an interdepartmental committee of the federal government.

73 amount of advertising to be broadcast, in the case of public service television 88 advertising was to take up at most 3% of daily broadcasting time (could be increased to 10% of daily broadcasting time by teleshopping) and radio 5%, in the case of private television broadcasters the amount was 10% of daily broadcasting time (possibly increased to 20%), in the case of private radio broadcasting it was 20%. In addition, the Federal Council of the Czechoslovak Republic passed Act no. 63/1991 Coll. on the Protection of Economic Competition that came into effect on 1 March 1991, it was to ensure that conditions ensuring economic competition were established and maintained, it established Offices for Competition (a federal office and an office in each of the republics), the Act defined what a dominant position on the relevant market89 was as well as sanctions to be imposed. Apart from the Federal Council for Radio and Television Broadcasting, each of the federal republics established its own council, in the case of the Slovak Republic the Act of the Slovak National Council no. 294/1992 Coll. on the Council of the Slovak Republic for Radio and

Television Broadcasting established the council which was to deal with licences for broadcasting on the territory of the Slovak Federal Republic, it co-operated with the federal council. It had nine members who were elected/dismissed by the Slovak National Council and among its members were those members of the federal council who were appointed by the Slovak National Council. Similarly, the Act of the Czech National Council no. 103/1992 on the Council of the Czech Republic for Radio and Television Broadcasting established the Czech council which was to deal with licences of broadcasters covering the territory of the Czech Federal Republic. It had nine members elected/dismissed by the Czech National Council, those members of the federal council who were elected by the Czech National Council automatically became its members. On 1 January 1993 Czechoslovakia disappeared from the map of Europe and the Czech and Slovak Republics came into existence (for more details on the Czechoslovak Velvet divorce see Btora, Btorov and Gyrfsov, 1994 and Musil, 1995). The Czechoslovak Television ceased to exist on 31 December 1992, it was Act No. 597/1992 Coll. on the Abolition of the Czechoslovak Radio, the Czechoslovak Television and the Czechoslovak Press Agency that achieved it and dealt with the property settlement of these institutions.

88

In this relation it is interesting to point out the use of terms in relation to public service broadcasting. Although I use the term public service broadcaster, in the Czech Republic as well as in Slovakia it has been used for a relatively short time, legal stipulations refer to broadcaster (set up) by an act (of parliament). 89 The problematic nature of the relevant market became clear when the Czech Competition Office made a decision related to the Vltava and Labe companies whose owner Verlagsgruppe Passau began to build up a monopolist position in the regional dailies market in the Czech Republic in 1991. The Office for the Protection of Economic Competition ruled that Verlagsgruppe Passau was not dominant on the relevant market as this was defined as that of regional and national dailies.

74 In the following sections I discuss developments in broadcasting in each republic following the break-up. The starting point for the broadcasting systems in the newly independent republics was marked by the heavily politicized nature of the supervisory and regulatory bodies that were responsible for issues linked to broadcasting. At the same time, the prevalent ethos was very much pro-market, in fact as will become clear in the following to such a degree that there were attempts at privatizing channels that were already assigned to public service broadcasters. The political pressures exercised on the supposedly independent public service broadcasters demonstrated themselves in different ways in the two republics. The scope of the dissertation does not allow me to go into great depth regarding the concrete proposals of political representatives/parties in relation to the analyzed legislative documents. Despite this, it needs to be born in mind that the legislative process and the policies related to public service broadcasting are often linked with the efforts of not only concrete political parties but indeed specific politicians. The individual respectively party political approaches and efforts can be traced on the basis of minutes from parliamentary (respectively committee) sessions, draft documents as well as public speeches or even politicians appearances in talk shows. Understandably, it is impossible to weave all these threads together in this dissertation, yet, I attempted to at least follow the trace of the acts analyzed in the following section through minutes and transcripts from relevant parliamentary sessions. References to these are made only in cases when they highlight striking

differences or unresolved conceptual issues90.

II.

Developments in the Czech Republic (1993 - 2005) The Czech Republic has approximately 10 million inhabitants, according to the 2001 census

(data provided by the Czech Statistical Office, www.csu.cz) the most numerous national and ethnic minorities living in its territory are the following: Slovaks (ca 200,000), Poles (ca 52,000), Germans (ca 40,000), Roma (ca 12,000, according to estimates the number is closer to 200,000). The Czech

90

In general this type of data (i.e. minutes, resolutions, draft legislation) is available from the following sources: - in the case of the Czech Republic: documents available from the Chamber of Deputies (http://www.psp.cz/cgibin/ascii/docs/); those of the Permanent Commission for Media [ sic] of the House of Deputies (http://www.psp.cz/cgi-bin/ascii/sqw/fsnem.sqw ?f1=5&f2=3&id=622); documents of the Senate of the Czech Parliament (http://www.senat.cz/dokumenty/index.html); documents of the Standing Senate Commission on Media (http://www.senat.cz/xqw/xervlet/pssenat/ web/ internet /5/ struktura/ komise/sksp); documents of the Council for Radio and Television Broadcasting (http://www.rrtv.cz/zasedani and http://www.rrtv.cz/zprava). - in the case of Slovakia: documents of the National Council of the Slovak Republic (http://www.nrsr.sk/main.aspx?sid=schodze/zoznam); of the Committee on Education, Science, Sport and Youth, Culture and Media of the National Council (http://www.nrsr.sk/appbin/xweb/xweb.asp?verb=explore|file=vybory\vvms); and those of the Council for Broadcasting and Retransmission (http://www.rada-rtv.sk/).

75 Republic became an independent country on 1 January 1993, it has a two-chamber parliament (consisting of the Chamber of Deputies and the Senate) and entered the European Union on 1 May 2004. A basic overview of the Czech legislative process can be found in Annex 1. At the beginning of 1993 the Czech Republic had three public service media institutions: the Czech Television, the Czech Radio and the Czech Press Agency (esk tiskov kancel), all the other media were privately owned (a regional television channel TV Premiera already obtained a broadcasting licence, yet it did not start broadcasting until later in 1993). From 1 January 1992 the Czech Television (CT) broadcast on two channels: CTV (federal channel divided between Czech and Slovak part of the federation) and OK3. As the break-up of the Czechoslovak Federal Republic was becoming increasingly clear, a decision was made that in the independent Czech Republic CT would continue broadcasting on two channels (after the break-up the federal F1 channel would also become available), a decision was expected on which frequencies will be allocated to CT and which channel will be

licensed to a private broadcaster. Although the Council of the Czech Republic for Radio and Television Broadcasting was to decide about CTs frequencies by 31 January 1991, the question was not solved until 1995. The frequency of the OK3 channel was conditionally awarded to the Czech Television until the end of 1995 (in the Act of the Czech National Council no. 36/1993), then in 1995 CT got it permanently. Thus for about a year CT broadcast on three channels, CT1 (former CTV), CT2 (former F1) and CT3 (former OK3), there was, however, a condition that it will free up one of the national frequencies for a commercial broadcaster which would be awarded a national television broadcasting licence. Surprisingly (or maybe not surprisingly if we take into account the pro-market stance), the channel with the best territorial coverage (CT2) was licenced out and CT broadcast on the two remaining channels (as was bound by law) but one of the channels covered only approximately 50% of the territory (thus actually CT did not fulfil one of the obligations set by law for the broadcasting to cover the whole territory of the Czech Republic). On 4 February 1994 the private national television channel TV Nova began broadcasting on the frequency freed by CT. Although TV Nova has been by far the most influential privately owned medium in the history of the Czech Republic, it was not the first private television channel set up in the country. On 26 November 1992 the first private Czech television channel (a regional one) was awarded a broadcasting licence. It went on air in June 1993 in the Prague region under the name of TV Premiera and on 28 June1994 it acquired a licence for national broadcasting (and set up TV Prima).

76 It is very easy to define the exact date on which the most profound and far-reaching changes in Czech broadcasting began. The day on which TV Nova began broadcasting was 4 February 1994, since then TV Nova was termed the commercially most successful private television channel established in the East Central European region following the fall of communism.91 The story of TV Nova is, however, much more complicated and arguably not so glorious. A licence for national television broadcasting was awarded on 30 January 1993 to a limited company called CET 21 Ltd. (Central European Television for the 21st Century, made up of five, later six, intellectuals, some of them former dissidents). The licence was awarded on the basis of Act no. 468/1991 Coll. on Radio and Television Broadcasting (see above) for 12 years. In its decision relating to the award of a licence the Council of the Czech Republic for Radio and Television Broadcasting took into account that the application submitted by CET 21 included quality conditions drafted with the help of experts from the British Independent Television Commission. Thus at the beginning it seemed that TV Nova will also provide programming in the public interest. However, as md (2001) points out an amendment to Act no. 468/1991 Coll. passed in 1995 prevented the Council for Radio and Television Broadcasting from revoking TV Novas licence although it breached conditions of the licence.92 When awarded the national television licence CET 21 did not have sufficient financial resources to establish a national television channel thus it teamed up with the Central European Development Corporation (later its media subsidiary, Central European Media Enterprises - CME) which provided about 9 million USD in investment to start up the Czech Independent Television Company (CNTS - esk nezvisl televizn spolenost). The third partner behind CNTS was the Czech Savings Bank (esk spoitelna). In terms of ownership share, CME had 66%, the Czech Savings Banks 22% and CET 21 12% (it owned the licence). The arrangement was supposed to work in the following way: CET 21 was the licence holder and CNTS the service company providing broadcasting.

When this model was criticized as an arrangement infringing on a provision of the Broadcasting Act [1991 Act on Radio and Television Broadcasting], according to which the licence is not transferable, the Czech Broadcasting Council [Council of the Czech Republic for Radio and Television Broadcasting] claimed that the editorial control of broadcasting TV Nova Group expects an estimated 2004 annual revenue of CZK 5.2 billion or US$222 million, estimated 2004 operating profits of CZK 2.2 billion or US$94 million and estimated 2004 net income of CZK 1.5 billion or US$64 million (CME press release). At the peak of its popularity in the mid-1990s TV Novas ratings reached 70 per cent. 92 The original Act no. 468/1991 Coll. on Radio and Television Broadcasting stated in paragraph 15, section 1 (c) that the relevant authority must revoke a licence in case changes occur in the case of the licence holder that prevent the fulfilment of the conditions stipulated in the licence. The 1995 amendment ( Act no. 301/1995 Coll.) moved this stipulation from the section on when the relevant authority must revoke a licence to the section on when it may revoke a licence.
91

77 was effectively executed by the licence holder CET 21 and that the Memorandum of Association and Investment Agreement is a guarantee of the legality of the model (md, 2001).

Criticism of the arrangement had to cease once an amendment to the 1991 Act on Radio and Television Broadcasting was passed in 1995 and it enabled the licence holders to ignore virtually all licence conditions (also those relating to programming in public interest) apart from those relating to the format of the programming service.93 It can be argued that the 1995 amendment brought a twist in the story of TV Nova. Milan md (2001), a leading Czech media specialist, summarizes the story of the Big Television Robbery in the following way:

CET 21 and CME used this opportunity [the 1995 amendment] and tried to strip away any licence conditions which were uncomfortable for them (e.g. an obligation to reinvest profits into original Czech drama programming), among them licence condition No. 17. [notify the Council of any changes relating to the licence holder]. The Czech Broadcasting Council was reluctant to abolish this particular condition, arguing that NTS had been the de-facto broadcaster of TV NOVA without obtaining a broadcasting licence. It launched administrative proceedings against NTS, in which the details of the arrangement between CET 21 (licence owner) and NTS (service company) were thoroughly investigated and checked. The proceeding was closed in September 1997 after some broadcast responsibilities were transferred from NTS to the original licence holder CET 21, among them the contract with Czech Radiocommunications, the company which operates transmitters for the distribution of the TV signal. In the meantime, without waiting for the end of administrative proceedings, and without reporting to the regulatory body CBC [Council of the Czech Republic for Radio and Television Broadcasting], CME started to buy out the economic interests of its partners in NTS. The transfer was done in three steps and finalized after licence condition No.17 was finally abolished in December 1996. Ronald Lauder wanted to sell the CME media business to SBS Broadcasting S.A. company. Mr. Vladimr elezn, the NTS president who became in 1997 the majority owner of the CET 21 company (thanks to the CME money), did not want to pass his sovereignty and
93

Pavlik (1999:506) similarly describes how the creation of the Parliamentary Committee for Mass Media allowed the dropping of the licence conditions. He also alerts to the ways in which TV Novas aggressiv e competitive strategies influenced the programming and the financial stability of the Czech Television.

78 leading position to a new investor. Ronald Lauder thought that Mr. elezn, who sold the CET 21 economic interests to the CME for 28 million USD, is obliged to conform to the new arrangement because of the contract between elezn and CME. elezn ignored this contract and did not want to yield. elezn was dismissed on April 19, 1999 from the service company NTS, but he was still the chief of the licence holder CET 21. On August 5 1999 elezn and the major part of his staff left the NTS premises and started to broadcast from the Barrandov film studio area, with a help of a new service company esk produkn, which financed the relaunch of TV NOVA thanks to a 1 billion CZK loan from IPB [Investment and Privatization Bank]. A series of legal cases against Mr. elezn and TV Nova followed, some of these at the international level. The final outcome: in 2003 the UNCITRAL Arbitration Tribunal ruled that the Czech Republic is to pay 355 million USD to CME for not having safeguarded its investment. Understandably, this case also harmed the credibility of the Council for Radio and Television Broadcasting as it was seen to have acted against the public interest and under political pressure. Before moving on to another set of important events determining developments in Czech broadcasting in the 1990s let me consider the 1995 amendment to the act on radio and television broadcasting in more detail. Importantly, the amendment significantly reduced the limits on daily broadcasting time devoted to advertising in the case of public service broadcasters, the previous 3% limit in the case of public service television was changed to 1% and in the case of radio the 5% limit was reduced to 0.2 %. Understandably, this meant that public service broadcasters income from advertising would be severely curtailed. In 1994 a new act was passed on television and radio licence fees, most importantly, it increased the amount of the licence fee in the case of radio to 25 czk per month, in the case of television it remained the same (i.e. 50 czk per month; Act no. 252/1994 Coll. on Radio and Television Licence Fees). The amendment also introduced stipulations related to concentration in the media market. According to the amendment broadcasters must inform the authority awarding the licence that they are authorized to produce print media or that their company merged with a company/individual with such an authorization. Radio broadcasters must notify the relevant authority in case their company merged with a television broadcaster, likewise a television broadcaster must notify the authority of a merger with a radio broadcaster. Licence holders were also obliged to inform the Council of any changes in the ownership structure, the act, however, does not stipulate the subsequent steps on the part of the Council in case the ownership changes threaten media plurality. It is thus clear that the amendment does not go as far as

79 to prohibit certain types of mergers but rather it stipulates a duty to notify of such mergers.94 The character of these mergers and whether they might distort competition is an issue that is then judged by the Office for the Protection of Competition (antimonopoly office). In 1997 the act on radio and television licence fees was amended (Act no. 135/1997 Coll.) to increase the licence fees, in the case of radio to 37 czk per month and in the case of television to 75 czk per month. Apart from events surrounding TV Nova and questioning the independence of the Councils decision-making, another major event related to broadcasting occurred in December 2000/January 2001 the so-called crisis at the public service Czech Television. In order to at least briefly outline the events of December 2000, one needs to go back to the spring of the same year. At the time the then director general of the Czech Television Duan Chmelek appointed Ji Hoda head of news and current affairs. In June 2000 Hoda gave in to political pressure (intervention of a member of the Council of the Czech Television) and dismissed a presenter of a political discussion programme. A lot of media attention was paid to the dismissal and the possible nature of political pressures exercised both on Hoda as well as on the director general Chmelek. Hoda resigned in August 2000 but the Council found that other news and current affairs programmes did not comply with legal stipulations related to the Czech Television and on the pretext of not securing CTs public service role it dismissed the director general Duan Chmelek. Following his dismissal, the Council made a decision to speed up the election of the new director general and announced the opening of the position leaving only 7 days for the receipt of applications. 33 applications arrived and within one day the Council elected the new director general in the person of the former director of news and current affairs Ji Hoda who was to take up his office in two days time, on 22 December 2000. There were allegations that the Council made its decision upon a political request and part of the employees at CT as well as of the public were concerned about the decision and understood Hoda as a puppet in the hands of the government. The outcry on the part of Czech Television employees as well as the general public was huge. A public initiative called Czech Television a Public Matter was set up and it started petitioning for the dismissal of the Council. The Council basically refused to discuss the matter, claiming that it acted independently of any political pressure. Understandably, the newly appointed director general represented a particularly serious problem in the eyes of the news and current affairs employees who had previously worked with him. These employees formed a crisis committee and informed the public about the happenings inside CT in evening news bulletins. To describe the so-called crisis at the Czech

94

In this respect it is important to bear in mind that Act no. 468/1991 Coll. stipulated that questions relating to plurality can be taken into account when awarding a licence but once the licence is awarded the Council is only notified of changes.

80 Television would take up too much space95, to sum up the developments: news and current affairs employees rebelled (it became an official strike only on 1 January 2 001), they did not allow Hodas newly appointed head of news and current affairs enter the building, broadcasting was interrupted for almost a whole day (27-28 December 2000), demonstrations were held all over the country with the aim of preventing political intervention in the running of the Czech Television. Both chambers of the Czech Parliament discussed the matter a number of times. On 4 January 2001 the director general Ji Hoda collapsed and resigned from his post. In the end the Czech Chamber of Deputies dismissed the Council of the Czech Television and the Parliament passed a law that amended the Act of the Czech National Council No.483/1991 Coll. on the Czech Television. The amended act changed the criticized way of appointing members of the Council (representatives of regional, cultural, social and political viewpoints were appointed by political parties represented in the Chamber of Deputies). According to the amendment the Council of the Czech Television has 15 members, they are appointed/dismissed by the Chamber of Deputies of the Parliament of the Czech Republic (to which the Council is accountable), however, nominations for memberships are made by organizations and societies that represent cultural, regional, social, trade union, employment, religious, educational, scientific, ecological and ethnic interests. 96 The Act also explicitly states that a member of the Council must not play any role in political parties or movements, social organizations and civic societies etc. and must not act in the interest of these or other interest groups. Importantly, the Act also set up the Supervisory Committee which advises the Council on financial management. It oversees the effective use of CTs financial resources and informs the

95

For a detailed account of the crisis and its causes see Lenka Csaovs MA thesis entitled Koeny krize v esk televizi (The Roots of the Crisis at the Czech Television.) submitted at the School of Social Studies, Masaryk University Brno, Czech Republic in 2003. 96 Arrangement that are to ensure that not only political interests but interests of the society at large (or public interest) are represented in the supervisory bodies that act as watchdogs over public service broadcasters can be very elaborate. In the case of Hungary, another post-communist country, for example, the 1996 act on radio and television broadcasting establishes a so-called curatory that is to ensure the public broadcasters independence and public supervision over it. It has similar functions as the councils in the case of Czech and Slovak public service broadcasters. At least 8 members of a curatory (there are three of them: of the Hungarian Television, Hungarian Radio and Television Hungaria) are elected by the Parliament and they serve for four years, half of them by the ruling party, the other half by the opposition. The chairman of the curatory is elected by the ruling party representatives, the vice chairman by the opposition. 21 members of the curatory are delegates elected by organizations that represent the civil society (these are appointed for one year), to illustrate how complicated the matter is I list these as they are listed in the act (paragraph 56): a) representatives of national and ethnic minorities living in the territory of Hungary nominate one member; b) the Hungarian Catholic Church, the Hungarian Reformed Church, the Hungarian Evangelical Church and the Jewish Congregation nominate one member; c) other churches nominate one member; d) human rights organizations one member; e) professional organizations active in the spheres of literature, theatre, film, performing arts, music, dance etc. four members; f) professional organizations active in the spheres of education and science two members; g) national trade unions one member; h) professional organizations of employers and entrepreneurs one member; i) journalists national professional organizations one member; j) environmental and animal rights national organizations one member; k) womens national organizations one member; l) childrens and youth national organizations one member; m) pensioners national organizations one member; n) national organizations representing the disabled one member; o) national sports organizations one member; p) local government one member; r) organizations of Hungarians living abroad one member.

81 Council, its members are elected by the Council. The Act on the Czech Radio was amended likewise. Another recent development is the introduction of Act No. 231/2001 Coll. on Radio and Television Broadcasting which replaced the 1991 Act on Radio and Television Broadcasting and all its amendments, the main changes in it relate to provisions of the Television without Frontiers Directive. The Act stipulates that the Council for Radio and Television Broadcasting has 13 members who are appointed/dismissed by the Prime Minister upon recommendation from the Chamber of Deputies. The Council awards licences in the case of television for twelve years and in the case of radio for eight, the licences are renewable. According to the Act a licence is not transferable to another person and when applying for its extension a change in the legal form of the licence holder can also be applied for. The licence holder is bound to notify the Council of his/her holdings/shares in other media businesses. When making a decision about the award of a licence the following criteria are of key importance: contribution of the proposed programme structure to plurality, the share of European works and the contribution to the development of national, ethnic and other minorities in the Czech Republic. The changes of which the licence holder must notify the Council in advance include changes in the programming structure as well as financial matters, these changes must be approved by the Council in case the changes are of such nature that the Council would not award a licence on their basis, the Council does not approve the proposed changes. Stipulations also relate to the share in the company that the licence holder must have (par. 21) and to ensuring the plurality of information (par. 21, sections 6,7). The Council is empowered to sanction licence holders and the most extreme measure it can take is to revoke a licence. In case the licence holder seriously or repeatedly breached legal stipulations related to broadcasting and/or licence conditions the licence is revoked. The same measure can be taken in case the licence holder fails to start broadcasting within 180 days from the award of licence in the case of radio broadcasting and 360 days in the case of television broadcasting. The licence can also be revoked in case the licence holder started broadcasting on time but within the first calendar year since the commencement of the broadcasting failed to broadcast for a total of 30 of more days. The award of a licence is preceded by a so-called public hearing to which all the licence applicants are invited and they are asked to discuss their proposed programme structure, the share of European works (unless they applied for a local television licence) and the licensing conditions. The meeting as its name suggests is open to the public, however, only those with an explicit permission from the Chairman of the Council are allowed to make comments (in writing or oral ones) or discuss issues.

82 The Act also incorporates the provisions of the Television Without Frontiers Directive, stipulating that European works should constitute more than 50 % of the broadcast programmes and 10% of programmes (or 10% of the budget) should be commissioned from independent producers. The Act also deals with events of particular significance in case of which a significant part of the public should not be denied access to them (their list is published in a decree of the Ministry of Culture and also includes those specified by EU member states and the Council of Europe). In case a licence is awarded a radio station must start broadcasting within 180 days from the award of a licence and television within 360 days. The Act sets limits on advertising, in the case of public service television of 1% of the overall broadcasting time (possible to increase to 10% by teleshopping), 15% of the overall broadcasting time in the case of licensed television broadcasters (possible to increase to 20% by teleshopping), in the case of public service radio on national radio stations 3 minutes of advertising per day and 5 minutes on local channels, in the case of licensed radios advertising can take up 25 % of the total daily broadcasting time. Part 6 of the Act includes stipulations restricting media ownership that aim at ensuring plurality of information. These stipulations use structural and behavioural measures to ensure plurality of information (include regulations on ownership and mergers, paragraphs 55 to 58). Other important laws that relate to broadcasting generally and are not discussed here in any depth are the Constitution of the Czech Republic and Act no. 106/1999 Coll. on Freedom of Information. In 2003 the preparation of two important acts related to public service broadcasting began. One of them was to regulate the payment of licence fees, the other was to amend the Act on the Czech Television, the Act No. 231/2001 Coll. on Radio and Television Broadcasting and other related acts. Although I have not discussed in detail the changes that were made to acts in the course of the legislative process in previous cases, I believe that the passing of the latest act ( no. 82/2005 Coll. that modifies Act no. 483/1991 Coll. on the Czech Television as amended and Act no. 231/2001 on Radio and Television Broadcasting and modifies other acts in the light of amendments) exemplifies the approach of politicians and the power struggles that relate to broadcasting, in particular the grip that politicians have on public service broadcasters and the unwillingness to loosen it. The act was proposed by the Czech government and the legislative process dragged on from 2003 to early 2005.97 The act was to bring significant changes regarding the appointment of members of the Council of the Czech Television. Under then valid legislation, members were elected/dismissed by the Chamber of Deputies of the Parliament. In order to limit the

97

The governments proposed bill no. 275/0 can be found among the list of proposed bills that the Chamber of Deputies discussed (http://www.psp.cz/sqw/text/tiskt.sqw?O=4&CT=275&CT1=0).

83 power of the Chamber the act proposed that the 15 members of the Council should be elected and nominated in a radically different way. The Chamber of Deputies, the Senate and the Prime Minister were each to elect/dismiss five members. In order to identify possible nominees for membership of the Council the Chamber of Deputies/the Senate was to name twice as many legal entities as the number of the members to be elected (the Chamber of Deputies from legal entities that represent significant cultural, regional, employer and religious interests and the Senate from those representing significant cultural, professional, ethnic minority, educational and environmental interests). The Chairman of the Chamber of Deputies/the Senate was to address the named legal entities with the request of putting forward their nominees. The Prime Minister was to appoint members of the Council on the basis of recommendations from legal entities that represent significant scientific and professional interests (which s/he previously addressed with the request for their nominations). The act was also to include stipulations on the calculation of the financial reward payable to members of the Council, the award was to be calculate on the basis of the average salary earned at the Czech Television. The act was discussed in the Chamber of Deputies and the shape in which it was passed by the Chamber and subsequently sent on to the Senate was very different indeed. All of the proposals for the changes in the nomination of members of the Council were scrapped (the deputies kept the then valid arrangement it is them who elect/dismiss members of the Council). The Senate, however, did not pass the act in its current wording and recommended to change the proposed stipulations (or rather to re-introduce the scrapped stipulations related to the appointment of members of the Council of the Czech Television) and returned the act to the Chamber of Deputies. The deputies voted on the version passed by the Senate and rejected it, then they took a vote on the version which they passed before sending it to the Senate and this version was passed (i.e. the Council members are to be elected the same way as before, no three-way process). The Act no. 82/2005 Coll. Came into force on 1 April 2005 and it did not change stipulations relating to the amount of the licence fee and income from advertising. The fate of the proposed act set out to increase the licence fees exemplifies problems even clearer. The legislative process went on from March 2003 to June 2004 with no result. 98 The government proposed an act which aimed at increasing the licence fee from 1 July 2004 from the current 75 CZK (ca 2.5) for television to 95 CZK (ca 3.2) and for radio from 37 CZK (ca 1.2) to 45 CZK (ca 1.5), to be paid by basically the same categories as stipulated in the then valid act

98

The draft legislative documents as well as minutes from meetings during which they were discussed are listed among the documents of the Chamber of Deputies and the Senate of the Czech Parliament (e.g. http://www.senat.cz/xqw/xervlet/pssenat/historie?cid=pssenat_historie.pHistorieTisku.list&for Each.action=detail&forEach.value=1720 ).

84 no. 252/1994, exemption was to be made somewhat more restricted. The Ministry of Culture argued that the inflation rate reached 8.5% in 1997, 10.7%, in 1998, 2.1% in 1999, 3.9% in 2000 and 4.7% in 2001 without it being reflected in the licence fees. The act proposed an indexation of the licence fee, in case the inflation rate reached 3% and above the government was to be able to increase the licence fees by a decree. In the reasoning linked with the proposed act we find that the increase in the licence fee was considered insufficient to cover costs that the television will incur in connection with digitalisation and that is why the act proposed to amend the act on radio and television broadcasting in such a way that the limit on advertising was to be increased to 3% of daily broadcasting time in the case of television (maintaining the possibility of increasing it to 10% by teleshopping thus the overall proportion of daily broadcasting time devoted to advertising together with teleshopping would not change). The proposed act was discussed in the Chamber of Deputies of the Czech Parliament and a number of changes were made in it. Most importantly, the licence fee was to be paid by every Czech citizen aged above 18 years (exemptions were to be maintained, such as low income groups and those with serious health problems as well as the other usual ones such as licence holders and public service broadcasters). Importantly the act proposed and increase in the licence fee from 45 to 100 czk and a system of indexation, in case the annual inflation index reached at least 3 % the government was to issue a decree that would increase the licence fee by the index and the new fee would be implemented since 1 July of the following year. Due to the increase in the licence fee the limit on advertising relevant for the Czech Television was to be decreased from 1% of daily broadcasting time to 0.8% (the possible increase by teleshopping from 10% to 8%). The act was then sent to the Senate which rejected it, objecting mainly to the payment of the licence fees by every resident of the Czech Republic aged above 18, the Senate suggested a change to everyone resident in the Czech Republic aged above 18 who owned a radio or television set and sent the act back to the Chamber of Deputies. The deputies voted on the version passed by the Senate and rejected it but they did not pass the act in the version in which they sent it to the Senate either, so the act dating back to1994 remains in force. The financing of Czech public service broadcasters has always been a major issue. It is clear from the above that licence fee and income from advertising have formed major sources of income for Czech public service broadcasters. Licence fees have not been indexed and in order to increase the amount of the licence fee an amendment has to be passed by the Czech Parliament. Any changes in the limit on advertising also require a new act or an amendment. In the covered period two amendments were passed raising the licence fee (from the original 20 CZK per month for a radio licence and 50 CZK per month for a television licence to the current 37, respectively 75 CZK). Currently Czech citizens who own a television or radio set are obliged to pay the fee, a selfemployed person pays for every television and/or radio set in his/her possession (otherwise payment

85 is made for one television and/or radio set in the household). The following are exempt from payment: foreign citizens who are not permanent residents of the Czech Republic, foreign ambassadors and other personnel (on the basis of international agreements), the police, the army, public service broadcasters and the Council for Radio and Television Broadcasting, individuals with a low income. The very latest policy development was discussed above.

At the moment in the Czech Republic there are two channels of public service television available (these are national, accessible to over 70% of the population), four national public service radio channels, two private free-to-air national television channels (TV Nova its licence was prolonged until 2017 and Prima TV until 2018), two national private radio channels (Frekvence 1 awarded a licence on 25 February 1999 and Impuls awarded a licence on the same day). There are private regional and local television channels and over 70 private regional and local radio stations. Currently, the biggest challenge and development relating to broadcasting ( and broadcasting policy) clearly is digitalization. Experimental digital terrestrial broadcasting was carried out in a district of Prague by the Czech Television (licence for this activity dated from 25 January 2000 to 31 December 2003) and the Czech Radio (licence from 22 February 2000 to 31 December 2003). On 1 June 2004 the Council of the Czech Republic for Radio and Television Broadcasting approved the plan for the further procedures in the sphere of digital terrestrial television. The plan faces all sorts of obstacles that relate generally to the digital switchover (see Chapter I) but perhaps more strikingly it is in my opinion seriously threatened by contradictory decisions made by the government (and the state administration) and an inconsistent and uninformed approach that is clearly demonstrated in legislation related to digital terrestrial television. In order to began any action in this sphere it was crucial to amend the currently valid legislation or pass a new act that would take into account the impact of digitalisation on broadcasting. However, in the Czech case no such amendment or act was passed and the government (in a decree - no. 395 of 28.4. 2004) recommended that the Council of the Czech Republic for Radio and Television Broadcasting went ahead with the licensing procedure for digital terrestrial television according to the Act No. 231/2001 Coll. on Radio and Television Broadcasting. The Council found itself in a difficult position and decided that a way out of the deadlock is to adjust the terminology related to digitalization in such a way that it fits existing legal stipulations99. This results in a ridiculous situation when terms such as digital network or digital multiplex or electronic programme guide cannot be used. Instead the terms adhered to are: broadcasting (as it can be analogue as well as digital), network of transmitters (as these can be analogue as well as digital), broadcasting on shared
99

For more detail see the Councils resolution of 1 June 2004 on the further procedures in the area of digital broadcasting, available at http://www.rrtv.cz/digitalizace/postup.html.

86 frequencies (instead of the term digital multiplex), teletext (instead of the electronic programme guide as it is understood essentially as an improved teletext service - though the Council acknowledges that some terminological problems can be expected in this respect as unlike teletext the electronic programme guide is shared on one multiplex). The plan proposes two networks of digital transmitters (in other words two multiplexes) with 4 television channels (2 public service, 2 commercial), 5 radio channels and an electronic programme guide. Based on this utterly inadequate adjustment of legislation the licensing procedure for digital terrestrial licences began, applications were to be submitted to the Council for Radio and Television Broadcasting by 21 December 2004, the Council is expected to make a decision in spring 2005. An unexpected and rather outrageous twist in the story occurred in February 2005 (with the licensing procedure well under way) when the Chamber of Deputies of the Czech Republic expressed the view that the Council for Radio and Television Broadcasting should postpone its decision-making and the award of licences until a new media law is passed.100

III.

Slovakia (1993 - 2005)

The Slovak Republic came into existence on 1 January 1993, it has a population of 5 million, approximately 14 per cent of its inhabitants belong to ethnic minorities, according to the 2001 census (data provided by the Statistical Office of the Slovak Republic, www.statistics.sk) they include the Hungarians (ca 520,000), the Roma (ca 90,000) and the Czechs (ca 44,000). It is a parliamentary democracy with a one-chamber parliament (called the Slovak National Council) and it joined the European Union on 1 May 2004. Slovak dual broadcasting (public service plus commercial) was established under the conditions of transformation to democracy and market economy but also importantly in the process of nation building. In the case of public service broadcasting in Slovakia its link to political power during the years 1993 to 1998 requires particular attention. In this period the broadcasting of the Slovak Television could hardly be viewed as creating a public sphere (on public sphere and media see Chapter I). After the gaining of independence an active process of government sponsored nation building started. It manifested itself on a number of levels. In terms of leadership, the Movement for Democratic Slovakia (headed by Vladimr Meiar) formed a government with the Slovak National Party and the Prime Minister Vladimr Meiar effectively proclaimed himself the Father of the Slovak nation. Indeed there existed an evident cult of personality in the case of the Prime Minister. The nation-building process involved a re-writing of history, the passing of the so-called language law which unduly restricted the use of minority languages in public conduct, a significant decrease
100

The Council insists on continuing the licensing procedure as originally planned.

87 in financial support for minority cultures and countless other issues. It is needless to stress that under such leadership the process of democratization significantly slowed down and Slovakia found itself in the midst of growing international isolation. The first law that was passed in relation to broadcasting after the break-up of Czechoslovakia was the Act of the Slovak National Council no. 166/1993 Coll. on Measures in the Field of Radio and Television Broadcasting. The Act dealt with the distribution of frequencies of the Slovak Television and the transfer of copyright and property that previously belonged to the Slovak section of the Czechoslovak Television (the same was done in the case of the Slovak Radio), it amended Act no. 468/1991 Coll. on Television and Radio Broadcasting, all licences were to be awarded by the Council of the Slovak Republic for Broadcasting (further Slovak Broadcasting Council) and licences for national broadcasting (i.e. covering the whole territory of Slovakia) were to be approved by the Slovak National Council following a proposal from the Slovak Broadcasting Council. Once the approval of the National Council was secured, the licence could be awarded. Between 1993 and 1998 public service broadcasting existed only in name in Slovakia. Thus instead of referring to public service broadcasting I refer to state-controlled broadcasting. Statecontrolled broadcasting was financed by a licence fee and advertising revenues (the legal stipulations related to the Slovak Television and Radio were passed already before the break-up of Czechoslovakia, for more detail see pp. 2-7 of the current chapter). The governing coalition, and especially the Movement for Democratic Slovakia (Prime Minister Meiars party), used its political influence to turn the state-controlled media into its advocates.101 Electronic broadcasting was regulated by the Council of the Slovak Republic for Radio and Television Broadcasting (for a brief outline of legislation related to it see pp. 8 and 10 of the current chapter) elected by the Slovak National Council, in which the governing coalition had a two third majority, since autumn 1994 until the fall of Meiars government four years later, members of the Broadcasting Council were exclusively associates of the governing coalition. The state-controlled television channels STV1 and STV2 were governed by the Council of the Slovak Television and the state-controlled radio stations were respectively governed by the Council of the Slovak Radio. The Act of the Slovak National Council No. 482/1992 Coll. on the Slovak Television was still valid at the time (see p. 6 of the current chapter for more detail) thus the Councils members were elected/dismissed by the

101

Efforts at securing political influence over public service broadcasters are, however, typical of other post-communist countries as well. Molnar characterizes the so-called media war in Hungary in the following way: a bitter dispute along party lines over the degree of government presence in Hungarian broadcasting that ended in a legislative debacle (1999, p. 91). From late 1991 until 1994, the governing coalition conservative parties, overcome by their frustration with criticism, used unconstitutional tactics against the presidents of MTV [Hungarian public service television channel] and MR [Hungarian public service radio station], such as revalidating a communist government order from 1974 prescribing government control of public broadcasting - deemed unconstitutional by the constitutional Court in 1992 but upheld until the media law was passed in 1995 (Molnar, 1999, p. 93).

88 Slovak National Council and the National Council also appointed the director general of STV (identical regulation applied to the Slovak Radio). It is clear that so-called Slovak public service broadcasting was not fulfilling principles of public service. Its news coverage was neither objective nor balanced, its programming neither diverse nor catering for minority needs. It certainly did not provide an arena for public debate and it is difficult to argue that its programs were of high quality when the allocation of resources to program-makers was politically determined. 102 In 1995 the Broadcasting Council awarded a licence to establish a national television channel VTV transmitted via cable and satellite. However, the group behind VTV was closely associated with the Movement for Democratic Slovakia and its leader. The situation changed remarkably in 1996 due to the establishing of the private Slovak television channel Markza103 (licence awarded 13 September 1995, began broadcasting 31 August 1996) whose transmission covers two thirds of Slovakias territory. At the time Markza was owned by two Slovak citizens (fifty-one per cent) and an American media group, Central European Media Enterprise Group. Markza almost immediately became the most watched television channel in Slovakia, already at the end of 1996 its rating was above sixty per cent compared to the state-run STV1s forty per cent (Fle, 1998: 626). At the beginning Markza presented itself as apolitical but it gradually started providing a forum for the political opposition. When an associate of the Meiar government attempted to take over104 the television station with the help of hired security guards, hundreds of people appeared in front of the television building to protest against the takeover as they perceived Markza as a loudspeaker for democracy. It is needless to say that the opposition parties made as much of the event as they could and arguably it was decisive for their victory in the 1998 elections. Markza still remains the most popular television channel in Slovakia. It is probably not surprising that in 2001 one of the owners of the television station (actually its director general and its public face) Pavol Rusko founded his own political party Aliancia novho obana (ANO, New Citizens Alliance). The general elections of 2002 were successful for the new party as it became part of the coalition government and its head Mr Rusko currently serves as Minister for Industry.

102

The news coverage on STV was also in 1997 the tool for the ruling movements, the Movement for Democratic Slovakia, propaganda. Commentaries attacking political opponents, the head of the state and the countries of the European Union were a part of Noviny STV [major evening news bulletin]. Obvious misinformation was given room, facts were withheld and modified. The Movement for Democratic Slovakia was openly promoted by the editors even to the detriment of its coalition partners (Fle, 1998, p. 628, my translation). 103 In the meantime interviews with Markzas then director Pavol Rusko made it clear that the government had aw arded a licence to Markza as it was to become controlled by forces loyal to it. In 1999 the same conclusion was drawn by the Slovak National Councils Committee on Security Issues that reviewed the activities of the Slovak Information Service (national security bureau) during the period 1994-98. SIS clearly abused state-run media for propaganda purposes and carried out a campaign aimed at discrediting politicians from opposition parties and created plans for overtaking Markza. 104 Literally take over the main building of the television by force under the excuse of an ownership dispute.

89 According to Slovak law he could not be a member of the government and at the same time a (co)owner of a medium thus he was forced to sell his share in Markza.105 Other significant developments apart from the establishment of a commercial broadcaster were amendments to a number of acts regulating broadcasting. The Act of the Slovak National Council No. 82/1995 Coll. amended The Act of the Slovak National Council on the Slovak Television No. 254/1991 Coll., an important change occurred as membership in the Council of the Slovak Television (and also of the Slovak Radio) ceased to be an honorary position and apart from travel and other costs connected with work in the Council, members were to be remunerated as stipulated in a decree, this reflected that it was a legitimate civil service job. The Act of the Slovak National Council No. 321/1996 Coll. includes provisions that amend a number of laws related to broadcasting (Act on the Slovak Television, Act on the Slovak Radio, Act on Measures in the Field of Radio and Television Broadcasting). The act changed the way in which members of the Council of the Slovak Television were nominated, the Slovak National Council was to accept nominations from the respective committee of the Parliament, members of the Parliament, the National Council and professional and civic organizations active in the field of culture and print media. The same stipulation also applied to the Slovak Radio. In 1997 the Act of the Slovak National Council no. 160/1997 Coll. on the Council of the Slovak Republic for Radio and Television Broadcasting was passed. It brought a change in relation to the way the nine members of the Council were to be elected. Under the previous act ( 294/1992 Coll., see p. 10 of the current chapter) its members were appointed/dismissed by the Slovak National Council, this provision made the process of appointment/dismissal clearly political. The new act stipulates that the council has nine members who are elected/dismissed by the Slovak National Council but importantly nominations to the National Council can be made by deputies and other public representatives as well as professional and civic organizations active in the field of audiovisual broadcasting and other mass media. The responsibilities of the Council include state administration in the field of audiovisual broadcasting, the award and revocation of licences, sanctioning, maintenance of a list of all licence holders, the Council also plays a role in the formation of broadcasting policy of the Slovak Republic, the costs of its running and the salaries of members and personnel are paid from the state budget. Meiars rule106 came to an end in the autumn of 1998. A coalition of four parties formed a new government with clear attempts at restoring democracy. The new government committed itself to a radical reform of public service broadcasting.
105

He sold his share to a close associate of his and there have been allegations that he in fact still exercises significant power in the station. 106 The fact that in 1997 international organizations listed Slovakia among countries with only partial freedom of press (Fle, 1998, p. 634) expresses the overall climate in the country at the time. Fle also gives an account of events that

90 The public service media reform following the change of government in 1998 was initially characterized by a lack of clarity (and vision for that matter) in conceptual, systemic and legislative terms and prolonged attempts at deregulating the telecommunications market. It is needless to stress that the Slovak Television at the time suffered from a lack of credibility, a legitimacy crisis107 as well as a financial crisis (contracts were signed that resulted in huge financial losses) and the fact that the government had to intervene and provide money for the payment of debts directly from the state budget further problematized the justification for the existence of STV. Purely the fact that in the 12 years of its existence 13 directors general headed the institution is very telling. The reform of the Slovak Television during this period is characterized mainly by legislative changes, personnel changes (two directors general, large reduction in the number of employees) and the introduction of new managerial practices (subcontracting, organizational changes, clearer definition of commercial activities). Four important laws were passed. The Act no. 308/2000 Coll. on Transmission and Re-Transmission of September 14, 2000 (this replaced the 1991 Act on Radio and Television Broadcasting and the 1997 Act on the Council for Radio and Television Broadcasting) defines the role of the Council for Radio and Television Broadcasting. The Council is to represent public interest in relation to the right to information, freedom of expression, right to access to cultural values and education; and conducts state regulation in the field of broadcasting and retransmission (e.g. award of licences and frequencies). The nine members of the Council are elected by the Slovak National Council on the basis of nominations from members of the National Council, professional institutions and civic organizations active in the sphere of mass media, culture, science, education, sport, registered churches and religious groups and civic organizations of citizens with disabilities. The Act also includes a clause on European audiovisual works that is in line with the Television without Frontiers directive of the European Union. Further, the Act includes stipulations in relation to independent production and ownership regulation. The act stipulates the basic duties of broadcasters, among them the facilitation of diverse and plural opinions, support for minority languages as well as objectivity and impartiality in news and current affairs. Broadcasters with a licence are bound to have 10% of their broadcasts produced by independent European producers, in the case of public service broadcasters the share is 20% of broadcasts on each channel (or 10%/20% of the budgets should be devoted to such works). Political advertising is regulated by special stipulations. Licences for radio broadcasting are issued for five years and for television broadcasting for twelve.
can be defined as a restriction of free access to and spread of information. These include the cancellation of press conferences after government sessions, selection of reporters to attend press conferences given by different ministries, refusal to provide the representatives of privately-owned radio stations and television channels with information from public officials and the 25-hour-disconnection of the frequency of the radio station Twist. 107 On legitimacy crisis in relation to public service broadcasting see for example Keane, 1991, Garnham, 1990 and Curran, 1998.

91 Paragraphs 42 to 44 of the act include provisions ensuring plurality of information, these measures are all structural and behavioural in their character (i.e. they regulate ownership and behaviour on the market e.g. mergers). For example, only one national or multiregional licence can be owned at a time; in case more licences for regional/local broadcasting are owned, they should not cover more than 50 % of the territory of the Slovak Republic. A publisher of press which appears at least five times a week and covers at least half of the territory of the Slovak Republic cannot at the same time own a licence for multiregional/national broadcasting. The case of the privately owned television channel Markza, however, is telling in this respect. It has been argued that the daily Nrodn obroda, the weekly Markza and the television station are owned by the same group, yet the ownership cannot be proved (see Sipos). Licence holders are obliged to notify the Council of nay changes in their ownership structure. The Act no.195/2000 Coll. on Telecommunications made it possible to privatize Slovak Telecommunications, an important step in deregulating the provision of telecommunications. And finally the Act no. 211/2000 Coll. on Free Access to Information brought long-awaited changes put concisely the law makes all information that is not secret public. In relation to public service broadcasting the most important latest development was the passing of Act of the Slovak National Council no. 16/2004 Coll. on the Slovak Television (effective since 1 February 2004). It defines STVs service to the public (paragraphs 2 and 3) as the provision of programming which is universal as to its geographical reach, diverse, prepared under the condition of editorial freedom by a qualified workforce and with social responsibility and which develops the culture of the viewers, provides space for contemporary cultural and artistic activities, mediates the cultural values of other nations and is financed above all from public money (par. 3 section 2). Section 3 of the same paragraph stipulates that STV programmes create the conditions for social agreement on public affairs with the aim of strengthening mutual understanding, tolerance and support for the coherence of a diverse society. STV is also bound to provide balanced programming in terms of content and region, in the languages of national and ethnic minorities living in the territory of the Slovak Republic; to ensure the making and broadcasting of programmes for national and ethnic minorities the Slovak Television creates separate organizational units (paragraph 5, section f), further, its programming takes into account the needs of the deaf and other social minorities (ibid., section g). In relation to the Council of the Slovak Television, there are some changes compared to the previous act (Act of the Slovak National Council No. 321/1996 Coll., see p. 24), the Council has 15 members who are appointed by the Slovak National Council (to which the Council is accountable), nominations to the respective committee of the Slovak National Council are to be made by members of the Slovak National Council or legal persons who are active in audiovisual media, mass media, culture, science, education, development and protection of

92 spiritual values, human rights and the environment, protection of health, represent the interests of national or ethnic minorities and other minorities or registered churches and religious groups. Importantly, the stipulation on the appointment/dismissal of STVs director general was changed, it became one of the Councils duties. The Act establishes the Supervisory Committee that mainly supervises the financial management of the Slovak Television. The Committee has three members, the Slovak National Council, the government and the President each appoint one of them. The main source of the Slovak Televisions income remains the licence fee and income from advertising (3% of overall broadcast time can be devoted to advertising, this can be increased to 10% by teleshopping), another source is direct payment from the state budget for certain programs in the public interest, STV can also lease or sell some of its properties. The licence fee is paid on a monthly basis, similarly as in the Czech Republic and the problems encountered with its indexing are also the same (i.e. indexing does not exist and a change in the licence fee requires the passing of an amendment or a new act). In the case of the Slovak Republic the new law introduces a so-called reserve fund in which surplus income should be accumulated and used to cover financial losses. However, the reserve fund has thus far not been large enough to cover the losses and normally following prolonged debates and disputes the government would cover these from the state budget. A quick look at the way licence fees developed gives us a clearer picture, in order to increase the amount of the licence fee an amendment (or a new act) has to be passed by the Slovak National Council, in the covered period two such amendments were passed raising the licence fee (from the original 20 crowns per month in the case of radio and 50 in the case of television (Decree no. 247/1995 Coll.) to 30 (respectively, 75 crowns; Decree no. 206/1997 Coll. and Act no. 188/1999 Coll.) and later to the current 40 Slovak crowns (ca 1) per month for a radio and 100 (ca 2.5) for a television (Act no. 241/2003 Coll.). At the moment Slovak citizens who own a television or radio set are obliged to pay the fee, a selfemployed person pays for every single television or/and radio set in his/her possession (otherwise payment is made for one set in the household). The following are exempt from payment: foreign citizens on a short-term stay, employees at foreign embassies who are not Slovak citizens, Slovak citizens with serious disability, also public service broadcasters and the Council for Broadcasting and Retransmission, social and humanitarian institutions, hospitals, schools, prisons and similar. Pensioners living in a household without a gainfully employed person pay half the fee. Recently there was a group of deputies in the Slovak National Council proposed an amendment to the Act of the Slovak National Council no. 16/2004 Coll. on the Slovak Television it would bind the Council of the Slovak Television to define at least once a year its public service priorities (the argument

93 behind this is that the Council, STV, the public, journalists etc. all understand public service differently). The proposal was not supported by the governments legislative council.108 In its meeting on 1 March,2005 the Council of the Slovak Television discussed the financing of STV, they arrived at the conclusion that there is no doubt that we need public service television but that the way in which it is financed is not adequate and in the long term the television cannot be expected to improve its financial situation. Among the proposed solutions to this situation the possibility of direct payments from the state budget that would cover the costs connected with broadcasting also came up. I consider it very telling in terms of the expertise and the vision (or indeed lack of it) on behalf of those who are in essence the public guardians of Slovak public service television that they would even discuss a measure that would totally jeopardise the independence of STV and would actually provide a direct channel through which the government could exercise control over it.109 At the moment there are two national public service television channels available in Slovakia (1 and 2), two national public service radio channels and two regional ones, two national private television channels Markza and JOJ (licence awarded 27 July 1995, transmitted via cable and satellite) and a national private television news channel TA3 (licence awarded on 6 October 2000, transmitted via cable and satellite). There are four public service radio stations available and three national commercial radio stations Express (licence awarded on 9 February 1999), Okey (licence awarded on 4 October 1996) and Fun (licence awarded on 17 December 1999) and about 20 regional and local private radio stations.
In respect of digital broadcasting, a pilot project conducted in two localities is expected to conclude on 31 December 2005 (the project is administered by the Telecommunications Office of the Slovak Republic). Following a government decree (no. 589/2001 of 27 June 2001) the Council for Broadcasting and Retransmission set up a working group on digital broadcasting but there has not yet been a date set for the planned award of licences for digital broadcasting and no legislative steps have been taken thus far in order to accommodate the provision of digital broadcasting in legislation. The above made it clear that the establishment of public service broadcasting in the two successor states of Czechoslovakia went through similar phases. That is why in the concluding section I do not make a clear distinction between the two countries. The sheer volume of legislative measures passed and implemented in the sphere of public service broadcasting suggests how contested a territory it is. The key issues for my argument can be grouped around three themes: 1. 2. 3. What links does the legislation envisage between public service broadcasting and democracy? What material resources do legislative measures allocate to public service broadcasting? How do legislative measures propose to ensure the independence of public service broadcasting from both the market and the state? There are two other related questions: What regulatory justifications and what regulatory mechanisms can we identify in the legislation? In the following I treat these questions one by one.
108

Legislatvna rada neodporuila novelu zkona o STV. SME 9 February 2005. 109 In all fairness I should point out that among the other issues that were discussed some were surprisingly wellinformed and opened up issues that have not been discussed over a long time, e.g. that the management of STV should make public information on the cost of programmes or that even legal documents use wrong terminology, such as concessions instead of licence fees.

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What links does the legislation envisage between public service broadcasting and democracy? There are a number of issues linked to this question. First of all, legislation related to public service broadcasting attempts to ensure the distribution of objective and balanced news and current affairs. There is no reference in relation to the role of public service broadcasting in creating a shared discursive space in this respect let me refer back to Nicholas Garnhams argument already quoted in Chapter I: public service broadcasting is characterized by a failure sufficiently to distinguish between two communicative functions within the public sphere: the collection and dissemination of information, and the provision of a forum for debate (1990:111, original emphasis). There are many references in legislation to diversity public service broadcasters should cater for the needs of diverse groups such as ethnic minorities, children, the deaf and the blind etc. The obligation includes the provision of programmes in minority languages. Public service broadcasters are also assigned distinctly cultural roles they act as guardians of national audiovisual treasures and hotbeds for new talents and new domestic production. Importantly legislation related to public service broadcasting leaves political advertising to special legal stipulations thus attempting to ensure balance and fairness in this respect as well. It can be argued that the link between public service broadcasting and democracy includes public supervision or public participation in decision-making about public service broadcasting. This is perhaps the most contested area in relation to public service broadcasting. Those who supervise public service broadcasting in fact act as guardians of the public interest and thus the way they are selected and nominated is of crucial importance. It can be argued that during the analyzed period there have been improvements in this respect (i.e. often directly politically nominations are getting closer to nominations by the civil society yet the selection is still made by the parliament and it is the parliament to which the councils are responsible). Legal stipulations are very detailed in respect of a clash of interests and are elaborate in respect of who can can/cannot be nominated. Legal stipulations are also very clear in terms of the length of the service of a council and leave the assignment of various roles in the councils up to the council members themselves. Public service should be accountable to the public yet the analyzed legislation makes no mention of this or ways in which this could be achieved (in the case of the award of licences there is a public hearing but it is rather limited as the chairman decides who can participate in the discussion). However, the analyzed measures are very strict in ensuring the accountability of public service broadcasters (respectively councils overseeing public service broadcasters) to political representatives. What material resources do legislative measures allocate to public service broadcasting? In the course of the dissertation it became clear that the financing of public service broadcasting represents a key area. In both countries there is a dual system of funding from licence fee and advertising (the amount of which is regulated). The licence fee is not indexed, this leaves public service broadcasters vulnerable to inflation which is combined with the fact that reliance on advertising can potentially make public service broadcasters vulnerable to the interests of advertisers. I have argued that broadcasting and media in more general have particular economic characteristics and these must be taken into account in legislation (in this relation positive externalities created by public service broadcasting come to mind or the tendency of media markets towards oligopoly). It is also important to build up measures that would ensure that the public and legislators understand the material basis of public service broadcasting (e.g. public service broadcasters should be bound by law to make detailed accounts of how money is spent and how much individual programmes cost and these should be publicly available). Such measures are completely lacking from the analyzed legislation. There is no doubt that apart from the councils overseeing the working of public service broadcasters there is also a need for experts on finances to oversee financial matters. There certainly are avenues that should be explored by public service broadcasters but legislators should also be careful not to pass measures that would, for example, cripple domestic production. Some of the policy documents and acts show that politicians have an insufficient understanding of the financial background of public service broadcasting and thus have unrealistic expectations (an example in case is digitalization when monies are not allocated for this purpose and, for example, there were debates at the Council for Radio and Television Broadcasting which suggested that the Czech Television should in fact buy set-top boxes for Czech households110). The legislation does not take into account the growing national and international competition in the sphere of broadcasting. How do legislative measures ensure the independence of public service broadcasting from both the market and the state? This question has partly been answered in the two previous sections. One of the characteristic features of legislation related to the independence of public service broadcasting from political interference is the detailed stipulations on who can be a member of the councils overseeing public service broadcasters and detailed legislation related to their duties, remuneration etc. Despite this, however, as the cases of the two countries show public service broadcasters have not been immune to interference from politicians. Such interference is not direct though but is well

110

Indeed this notion was expressed in a document published by the Council on 31 October 2004 entitled The plan for licencing procedures for digital networks (see http://www.rrtv.cz/ digitalizace/DTT-planvyhl.rtf).

95
reflected, for example, in the legislative process and the interaction of the two chambers of the Czech Parliament. The politicization of broadcasting issues is reflected in legislation that puts even actors within state administration into an awkward situation (e.g. the case of digital terrestrial television licences in the Czech Republic). In Slovakia the vulnerability of public service broadcasters to political influences exercised through supervisory and regulatory bodies (and measures) was clearly demonstrated under Prime Minister Meiar.

Without doubt in the successive years (and successive legislation) there have been improvements on the way nominations are made to supervisory bodies yet the case of the Czech Act no. 82/2005 clearly demonstrates the limits of political will to eradicate political influence over public service broadcasting. There is no regular review of public service broadcasters that would assess their remit, financing etc. and would make certain guarantees relating to public service broadcasting for a number of years. Without such a process of review (or guarantees) public service broadcasters are open to interference at any point as the fact that there have been as many as 29 acts and decrees relating to public service broadcasting passed in the last fifteen years in the two countries suggests. It is striking but perhaps not surprising that in the two countries public service broadcasting is treated like an unwanted child, it somehow came into being thus it should be tolerated but not actively supported. This is, however, in line with what Garnhams argument already mentioned in Chapter I: the public service, state-regulated model, whether publicly or privately funded, has in effect always been seen, not as a positive good but as an unfortunate necessity imposed by the technical limitations of frequency scarcity (1986: 39).
When reflecting upon independence from the market as well as the state it must constantly be born in mind that public service broadcasters (unlike private ones) treat their audience not merely as consumers but as citizens. Having said that it must be born in mind that they are exposed to increasing competition from other broadcasters. Public service broadcasters ratings are used as arguments for their aboli shing yet I believe that public service broadcasters should primarily not be forced to fight a battle for audiences. Simply because we are citizens of a democratic country we have the right to use the informational, cultural and discursive avenues provided by public service broadcasting regardless of our numbers. Pro-competitive and deregulatory measures though should not be disregarded in relation to public service broadcasting as state aid rules apply and competition regulation apply to public service broadcasters. There is another issue that is not reflected in legislation at all and that is the fact that commercial broadcasters can also be bound by law to fulfil a certain public service remit. What regulatory justifications and what regulatory mechanisms can we identify in the legislation? We can see from the above that in both countries a dual regulatory regime is at work (i.e. there are separate regulators for public service and private broadcasting). In Chapter II I have devoted significant space to a discussion of convergence and its impact on broadcasting regulation, in the analyzed legal documents there is no mention of convergence whatsoever although there are certain legal measures relating to digitalization. In terms of justifications we can clearly identify effective communication, public service and diversity, there are, however, no references made to economic justification. This is understandable as public service broadcasting is not expected to produce an economic surplus yet it is a very important type of a good and it has benefits (such as positive externalities). Public service broadcasters are essentially self-regulated and prevalent regulatory measures are of the structure and behaviour type (there is limited regulation of content) in line with latest developments in broadcasting regulation as identified in Chapter II. The next chapter considers the regulation of public service broadcasting in the Republic of Ireland.

CHAPTER V: Public Service Broadcasting in the Republic of Ireland (1988 - 2004)

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Ireland (ire) has 4 million inhabitants, it has been a member of the European Union (respectively EEC) since 1972. According to 2002 census data (published by the Central Statistics Office, www.cso.ie) ca 225,000 nonIrish residents live in Ireland (the majority (ca 134,000) of them come from EU countries; there are also about 20,000 Africans and 22,000 Asians living in Ireland). Ireland has two official languages, Irish and English, a Parliament (Oireachtas) with two chambers: the House of Representatives (Dil ireann) and the Senate (Seanad ireann). There are certain historical developments that need to be kept in mind throughout the argument as they had a significant impact on media legislation, I alert to these in the sections dealing with specific legislature and historical periods. 111 Most of these events are related to Northern Ireland and the clashes between Unionists and Nationalists (Protestants and Catholics) in that part of the island. Without doing any justice to the complex historical developments that led to the partition of Ireland let me just very briefly outline how the independent Republic of Ireland came into being. The co-existence of Irish and English on the island has a long history and it has been problematic for a number of centuries when following a civil war the so-called Anglo-Irish Treaty was signed in 1921 and on its basis Ireland was partitioned. Twenty-six counties in the southern part of the island (overwhelmingly Catholic) became the Irish Free State which was given the status of dominion (similar to that of Canada) and the remaining six northern counties became the state of Northern Ireland with an inbuilt Protestant majority and part of the United Kingdom. Eventually, the twenty-six counties of the Irish Free State became an independent republic in 1949 and left the (British) Commonwealth of Nations.

Another important issue to be kept in mind throughout is the status of the Irish language. In the Republic of Ireland Irish is the first official language (there have been efforts to make it an official language within the European Union as well) and it is a Celtic language, approximately 2000 years old. It belongs among Goidelic languages (together with Scots Gaelic and Manx; the other group of Celtic languages being Brythonic with Welsh, Cornish and Breton), as early as the year 1000 the two subgroups, although sharing many general features, had diverged considerably, and the relationship between them is only apparent when they are subjected to a historicalcomparative study. A thousand years later, there is no question of any degree of mutual intelligibility between e.g. Irish and Welsh (Doyle, 2001: 10). Despite its ancient origins and due to the significant influence of English in Ireland (which had a much higher status) combined with the effects of the famine112 by 1891 only 14% of the population reported to speak Irish. A number of efforts were made to revert this trend, the first among them the foundation of the Gaelic League in 1893. Yet, as Doyle points out, even at the most generous estimate, there are not more than 10,000 native speakers left, most of them over the age of forty (ibid.: 11). As I demonstrate later politicians were put under significant pressure to recognize the importance of Irish language in broadcasting and eventually an Irish language public service television channel was established.
The case of Irish public service media is usually not dealt with in much detail thus I consider it important to provide a brief account of the most important dates linked with its developments. Irish public service radio (Radio ireann) was established in 1926, followed by television

111

There are a number of sources that can act as a starting point for learning more about the history of Ireland. A succinct outline of the most recent history of the Irish conflict can be found at http://www.bbc.co.uk/history/ war/troubles/. 112 Between the years 1845 and 1850 a failure of potato crop led to an estimated one million deaths from starvation and disease and a massive wave of immigration (particularly to the US and Britain). As a consequence the Irish population of eight million was reduced to about five million.

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in 1961.113 Until 1960 when the Radio ireann Authority was established, broadcasting was under direct government control. Due to overspill from Northern Ireland (the six northern provinces of the island which form part of the United Kingdom) UK television channels (public service as well as privately owned) have been available throughout. In 1996 the Irish language public service television channel TG4 was established. The most recent development in the sphere of broadcasting was the governments unsuccessful bid for digital terrestrial telev ision licences in 2001.

It also applies in the Irish case that the legislative process and the policies related to public service broadcasting are often linked with the efforts of not only concrete political parties but indeed specific politicians and also, specifically in the Irish case, the Catholic Church and senior figures in the Church. The scope of the dissertation does not make it possible to deal with these influences in any depth, however, in cases where these influences (or the impact of other interest groups) are evident I highlight these. Similarly as in the cases of the Czech Republic and Slovakia the legislative process can be followed on the basis of minutes and other records available at both houses of the Irish Parliament (Oireachtas).114 In order to be able to understand the significance of Irish media legislation passed in the last 15 years it is actually useful to go further back in past and first deal with the Broadcasting Authority Act 1960 which established Radio ireann Authority (further Authority) as a body corporate appointed by the government (the government had the power to appoint/dismiss a member of the Authority). The Authority was to establish and maintain a national television and sound broadcasting service, its general duty was to bear constantly in mind the national aim s of restoring the Irish language and preserving and developing the national culture (section 17), the more concrete duties were stipulated in section 16 and these included those linked with the establishment of the service and its running (such as acquiring, installing and operating the apparatus, distribution of programmes, production and purchase of programmes, entry into contracts and international organisations etc.) and the Authority also had duties in the field of personnel, these included the appointment of director general and officers and servants of the Authority. The broadcasting service established by the Authority should concentrate on maintaining national culture, providing impartial information and should not include any religious or political advertising. Members of the Authority were to serve for up to five years (the government would decide on the exact period of service, indeed up until 1985 the period an Authority spent in office was three years), were to be paid remuneration out of funds available to it, however, the amount was to be set by the government, members expenses were to be paid also out of the Authoritys funds and that to the extent considered reasonable by the Authority.
113

Corcoran (2004: 98) points out that the decision to establish a television service financed by a licence fee was reached in 1959 and was preceded by nine years of debates about the funding structure and it was widely expected that the television service would be privatised and financed entirely from advertising revenue. 114 The Parliament has a Joint Committee on Communications, Marine and Natural Resources (http://www.oireachtas.ie/viewdoc.asp?fn=/documents/Committees29thDail/CommMarNatRes.htm) and the House of Representatives (Dil ireann) has a Select Committee on Communications, Marine and Natural Resources (http://www.oireachtas.ie/viewdoc.asp?fn=/documents/Committees29thDail/ Comm Mar Nat Res Select.htm).

98 The broadcasting service was to be funded from a licence fee115 and income from advertising. The amount of total daily broadcasting time devoted to advertising was to be decided by the Authority but was subject to the approval of the relevant minister. Importantly, the Act left the Authority open to censorship by the government, section 31(1) of the Act stipulated that the Minister may direct the Authority in writing to refrain from broadcasting any particular matter or matter of any particular class, and the Authority shall comply with it. The minister respo nsible for the passage of the act Michael Hilliard argued that it merely replicated the powers given to the British Postmaster-General under the equivalent UK legislation, he also suggested that a situation may occur when it is necessary to prevent the broadcast of morally objectionable programmes (as quoted in Horgan, 2004: 21), a month later though he disclosed his reasons.
A situation can develop here, as it can develop in any country, that when an Authority broadcasts a certain class of programme or a certain item, they may not be in a position to have the information that would be at the disposal of the Government in regard to the implications that the broadcast would have in respect of our relations with other countries or a crisis at home. Therefore, it is incumbent upon the Minister, acting for the public in the public interest, to have this authority (as quoted in ibid.).116

It needs to be mentioned here that there is no reference in the Act to sanctions in case a government issued directive under section 31 was breached. The relations with other countries could allude to Northern Ireland (respectively the UK) where discrimination against the Catholic minority in housing and employment (linked with gerrymandering to secure political power) led to increasing tensions. Another factor that played its role was the border campaign conducted by the outlawed Irish Republican Army 117 between 1956 and 1962, it was an armed campaign against the British Army and the Royal Ulster Constabulary (the British-established police force for Northern Ireland, in existence between 1922 and 2001) in Northern Ireland.

The Act thus effectively set up a broadcasting service under a semi-state body rather than under direct government control (Horgan, 2004: 22). Radio ireann Authority launched television broadcasting in 1961. In terms of the relationship between the government and the Authority Corcoran makes the following point:

115 116

Please note that in the Republic of Ireland there are no separate licence fees for television and radio. In this respect Horgan (2004: 60) points out that any minister would be more than reluctant to use Section 31 as s/he would face a media and public outcry. Rather, the government would tend to use more subtle and indirect ways of achieving their objectives in broadcasting. In this context, and paradoxically, Section 31 which had widely been seen at the time it was passed as a threat to broadcasting freedom was at this particular time actually a form of protection for the station. It allowed broadcasters to reject inappropriate pressure by pointing out to government that there was a statutory method of getting their way should they choose to exercise it. The broadcasters knew that if a directive was issued under the Act they would have no option but to obey it but they also knew that the government was unwilling, for obvious political reasons, to take this particular course of action in any but the most serious circumstances. 117 Originally the Irish Republican Army (IRA) was organized by Michael Collins following the Easter Rising of 1916 against British rule and its main aim was to achieve independence for Ireland. In order to achieve its objective IRA was involved in bombings, raids and street battles on both sides of the border following the partition of Ireland. However, by the time of the foundation of the Republic of Ireland it was much weakened and indeed by 1949 it was outlawed and turned into a secret organization. My brief historical overview is in no way comprehensive and it is not intended to be such. However, I have to point out that apart from republican paramilitary organizations (the most prominent among them evidently being IRA) there were also three major loyalist paramilitary groups active in Northern Ireland: Ulster Freedom Fighters/Ulster Defence Association, Ulster Volunteer Force and Loyalist Volunteer Force.

99 There is no doubt that the Government found it extremely difficult to come to terms with the new radio and television organisation that they had created. One of the reasons for this is that the blueprint for RT neglected to provide any formal channel through which the Ministers could communicate with the broadcasting organisation when important national issues were at stake. So boundaries between Government and RT had to be established pragmatically, by experimentation and within the political culture of the time, each side testing its power and gauging possible reactions (2004: 58).

However, the situation in which the service was set up was not complicated only politically (as suggested above) but also in terms of competition from other television channels. At the time the service was set up, the broadcasting services provided by the British Broadcasting Corporation in neighbouring Northern Ireland were already available to about 40% of the population and the impact of UK-based television channels became even stronger with the inauguration of Ulster Television118 on 31 October 1959, among the various broadcasters a fight for audiences as well as advertisers raged.119 During the 1960s and 1970s the Act was amended twice, in 1966 and 1976. The Broadcasting Authority Act 1966 changed the name of the authority to Radio Telefs ireann (RT or Authority). In the same year the Taoiseach (Prime Minister) Sen Lemass made a statement on the governments broadcasting policy which made it clear that the government did not believ e it was legitimate to make RT completely independent.

Radio Telefis ireann was set up by legislation as an instrument of public policy and as such is responsible to the Government. The Government have overall responsibility for its conduct and especially the obligation to ensure that its programmes do not offend against the public interest or conflict with national policy as defined in legislation. To this extent the Government reject the view that Radio Telefis ireann should be, either generally or in regards of its current affairs programmes, completely independent of Government supervision (as quoted in Horgan, 2004: 41).
118 119

UTV forms part of the ITV Network a UK commercial national network that began broadcasting in 1955. In this respect it is important to point out that as RT built its position in the advertising market it in some cases faced cold treatment by newspapers as it threatened their position in the advertising market. In relation to government interference with the content of broadcasts Horgan demonstrates that although they were critical of Government, the newspapers editorially were less resolute in their defence of RT than might have been expected. This may have been partly related to the growing sense of rivalry between the media, the invasion of the advertising market by RT, and by the fact that most of the broadcasters now in the firing line were not journalists in the sense that they were not members of the NUJ [National Union of Journalis ts] (2004: 101).

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The end of the 1960s marks an emerging difficult period for broadcasters (and journalists in general for that matter) based in the Republic of Ireland as well as in Britain in respect of reporting events from Northern Ireland where the civil rights movement120 became prominent in the autumn of 1968 and a subject of major controversy when the Northern Irish government banned civil rights marches (claiming the Northern Ireland Civil Rights Association was a front for the Irish Republican Army) and forcefully dispersed them. In October 1968 and in January 1969 civil rights marches were either dispersed by the Royal Ulster Constabulary or attacked which deepened tensions between Protestants and Catholics and by the summer of 1969 Catholic homes were being burnt and Catholics were attacked on the streets of Belfast. At approximately the same time the Irish Republican Army split into two wings, the Official IRA (advocated a united Ireland but did not support terrorist activities) and the Provisional IRA (viewed terrorism as a legitimate means of achieving unification). In September 1971 RT prepared a current affairs programme121 in which members of the IRA were to be interviewed, however, on 1 October 1971 the Irish government issued a directive under section 31 which prevented the RT from broadcasting the programme, this intervention was to have long-terms effects as it very vaguely directed the Authority to refrain from broadcasting any matter of the following class, i.e. any matter that could be calculated to promote the aims or activities of any organisation which engages in, promotes, encourages or advocates the attaining of any particular objective by violent means (as quoted in Horgan, 2004: 99). The directive was renewed annually and was in place until 1994, understandably it had a huge impact on freedom of broadcasting and on RT as such. Initially RTs reaction was despite the protests and the anxiety about future coverage that the directive was, in essence, manageable, although its application to a range of programmes inevitably raised problems (Horgan, 2004: 103). Horgan goes on to point

120

The Northern Ireland Civil Rights Association was formed in January 1967 as a reaction to discrimination against Catholics. The Association made five demands: one man one vote in council elections; an end to gerrymandering in respect of electoral boundaries; prevention of discrimination by public authorities and effective handling of complaints; fair allocation of public housing and the repeal of Special Powers Act and the disbanding of B Specials (Protestant dominated auxiliary police force). The Association emerged at a period that appeared to be more favourable for the reconciliation of Protestants and Catholics (respectively Unionists and Republicans) during the so-called ONeill era (the period between 1963 and 1969 when Terence O Neill was Prime Minister of Northern Ireland). At the time the Irish Taoiseach (Prime Minister) was invited to Northern Ireland and ONeill made an unprecedented visit to a Catholic convent school and shook the hand of a nun.
121

For a more detailed account of the handling of Northern Ireland at this period by RTs current affairs programmes see Horgan, 2004: Chapters 3 and 4 (with the telling titles: The North erupts and Censors and sackings).

101 out that understandably at the managerial level there was a lot of watchfulness (even edginess) which related not solely to programmes about Northern Ireland and the situation was to get even worse as the shooting of 13 [in total 14 as another wounded civilian died later] civilians taking part in the civil rights march in Derry on 30 January 1972,122 however, inaugurated a period of dramatically increased tension (ibid.: 106), indeed this tense period culminated in the dismissal of the Authority123 for a breach of the directive under section 31 in November 1972. The Broadcasting Authority Act 1976 brought some significant changes. On the one hand, it stipulated that a member of the Authority could be removed only if resolutions calling for his/her removal were passed by both houses of the Parliament (Oireachtas) thus weakening the power of the government of the day over the Authority. More importantly, however, the Act continued to empower the relevant minister to order the Authority to refrain from broadcasting any matter that may reasonably be regarded as being likely to promote, or incite to, crime or as tending to undermine the authority of the State (section 16).124 The minister had to lay any such order before each House of the Oireachtas after making it and in case either House passed a resolution annulling the order, it was annulled without prejudice to its validity prior to the annulment. However, as Horgan points out despite the continuing campaign by the NUJ [National Union of Journalists] on Section 31, and despite Dr OBriens change in the law to allow any directive to be debated in the Oireachtas under certain circumstances, no directive was challenged for a very considerable period (2004: 143). Among the Authoritys duties the Act also listed the provision of a broadcasting service that furthers the understanding of other cultures, in particular those of the member states of EEC.

122

The events of so-called Bloody Sunday when British troops opened fire and killed 14 civilians taking part in a civil rights march. The then UK Prime Minister Edward Heath announced an inquiry into the events of the day and Lord Widgery who led the inquiry concluded that the soldiers were first fired on and no deaths would have occurred had there not been an illegal march in the first place. There were a number of problems with Lord Widgerys report, perhaps most importantly there was no conclusive evidence suggesting that the dead or wounded had been shot while handling a firearm. In 1997 the Irish government submitted a substantial dossier of evidence to the UK to back demands for a new Bloody Sunday inquiry. In 1998 Tony Blair announced an independent judicial inquiry into Bloody Sunday, it was to be headed by the British Law Lord, Lord Saville of Newdigate, and two judges from Commonwealth countries. The findings of the inquiry are to be made public. At the time of writing (Spring 2005) the Bloody Sunday Inquiry has not yet concluded, for more detail see http://www.bloody-sunday-inquiry.org.uk. Bloody Sunday has played a significant part in artistic imagination as it was rendered in fiction (Brian Friels Freedom of the City), music (U2s Bloody Sunday) as well as film (Bloody Sunday written and directed by Paul Greengrass). 123 Jack Lynch [then Prime Minister of the Republic of Ireland] later told the story that when he met Ted Heath [then Prime Minister of the United Kingdom] soon after this [the sacking of the entire Authority], the British Prime Minister was most impressed with Lynchs strength of will in dismissing a public body that numbered among its members the widow of a former President (Bean Ui Chellaigh). It would, he thought, be like firing the BBC governors while the Queen Mother was still a member (Corcoran, 2004: 61). 124 I omit the context in which the Act was passed, suffice it to say that the situation in Northern Ireland did not improve at all, indeed IRA extended its terrorist campaign to Great Britain in 1972 (21 people were killed in the bombing of a Birmingham pub in 1974, in 1979 IRA assassinated Louis Mountbatten, 1st First Earl Mountbatten of Burma, Last Viceroy of India, in 1984 IRA planted a bomb at the Conservative Party conference in Brighton with the aim of assassinating Prime Minister Margaret Thatcher). In 1974 the British government passed the Prevention of Terrorism Act which outlawed IRA.

102 The Act also set up the Broadcasting Complaints Commission (BCC) which was to have at least three members and was to be appointed by the government for a maximum of five years, members remuneration and allowances were decided by the relevant minister. Such individuals who were nominated to either House of the Oireachtas or the European Parliament (or were members thereof) could not become members of BCC and neither could its members be servants or officers of the Authority. BCC was set up to make decisions on complaints related to broadcasts (at the time the only broadcaster was RT), it was to inform the authority of its decisions, in turn the Authority had to acknowledge acceptance of the decision and the decision was subsequently published (by BCC or the Authority). The Broadcasting Complaints Commission was not empowered to award to any party costs or expenses. The directive under section 31 preventing the RT from broadcasting any programmes that promoted organizations using violent means for achieving their goals remained in power during the 1970s and 1980s and it brought with itself a number of protests, the National Union of Journalists began to organize a campaign against Section 31 which would last for twenty-four fruitless years, and was generally marked by a protest outside the Dil [chamber of the Parliament] when the directive was renewed in January each year after 1975 (Horgan, 2004: 122), resignation of some members of RT staff as well as industrial action (e.g. a 24-hour strike in August 1985 which involved RT journalists). The position of journalists working in Northern Ireland was particularly difficult, they had to prepare reports for broadcast in an area in which the entire population had access to transmissions from BBC and ITV which, although cautious, were not subject to the same restrictions until 1988 [when similar restrictions were introduced in a notice under clause 13(4) of the BBC Licence and Agreement and section 29(3) of the Broadcasting Act 1981]125 (Horgan, 2004: 174). The Radio and Television Act 1988 set up the Independent Radio and Television Commission (IRTC) in the form of a body corporate which was to award licences and oversee the independent broadcasting sector (the Commission was to authorize the sound/television programme service contractor to operate based on a licence issued by the relevant minister). Members of the

125

In an article for the Irish Times Michael Foley describes the practices used by broadcasters in order to comply with these restrictions in Britain. The British ban prevented the words of terrorists or known sympathisers being broadcast. Initially sub titles were used but, more recently, broadcasters favoured using actors voices synchroni sed with the interviewees lips. The ban differed from the operation of the Irish broadcasting ban under Section 31. Members of Sinn Fein and other organisations could be heard speaking on personal matters. The British ban also lifted during elections. The ban included within its remit those who might give verbal support to banned organisations but were not actual members. When the president of Sinn Fein, Mr Gerry Adams, was interviewed on Radio Ulsters Inside Politics programme, his voice was heard as he recounted how his house was attacked bud the second half of the interview was dubbed, when he answered political questions (Dubbing SF [Sinn Fin] voices becomes the stuff of history Irish Times 17 September 1994, accessed from http://homepages.strath.ac.uk/~his04105/news/IrishTimes-94.html).

103 Commission were to be appointed/removed by the government. The Act enabled to set up one private television programme service provider and sound broadcasting service providers (including a national one). Among the duties of the broadcasting contractor were the following: provide objective and impartial news and current affairs programming, refrain from broadcasting anything offending against good taste/decency or anything that would promote crime and not to breach the privacy of individuals in an unreasonable manner. The contractor was not prevented from broadcasting political party broadcasts but in such case unfair preference should not be given to any political party. In terms of advertising the contractor was bound to comply with codes governing standards and practices drawn up by the Commission, the Act set a limit on advertising in the case of a sound broadcasting service maximum of 15 % of total daily broadcasting time. The Act includes a stipulation which is not of a general nature: the Commission may specify the period during which the contract is in force. It is in the power of the Commission to terminate a contract in case the contractor provided false/misleading information or seriously (respectively repeatedly) breached his obligations under the contract or the Act. Every broadcasting contract is open to inspection by members of the public at the Commissions registered office. The Commission was to have 7 to 10 members with a period in office not exceeding five years, a person shall not be appointed to be a member of the Commission unl ess he has had experience of, or shown capacity in, media or commercial affairs, radio communications engineering, trade union affairs, administration or social, cultural, educational or community activities (section 21(5)). In case a member had an interest in a company/concern with which the Commission proposed to enter into contract or in any contract that the Commission proposed to make the member was to notify the Commission and refrain from any deliberation on the subject. Individuals nominated to either House of the Oireachtas or the European Parliament (or members thereof) could not be members of the Commission. The Commission was to submit its account for audit on a yearly basis and also produce an annual report for the relevant minister which s/he subsequently laid before each House of the Oireachtas. In 1989 IRTC awarded licences for private local radio broadcasting, until then the only legal radio broadcaster was RT, yet there were numerous pirate radio stations operating in the country.126 In April 1989 a private national television licence was awarded to TV3 which became

126

Truetzschler points out in this respect: Unlicensed or pirate radio stations have always existed in Ireland since the start-up of radio broadcasting in Ireland. This was particularly the case in the period 1960-1988 prior to the legalisation of private local radio. But even in 2002 the listener/radio enthusiast will find on any day of the year 50 or 60 pirate radio stations operating in different parts of the Republic. Pirate radios seem to be run by disenchanted license applicants for legal radio stations and others who are of the opinion that radio in Ireland offers no real choice other than popular music stations and only one or two proper radio station, i.e. stations like RT Radio One, catering for all groups in society. Furthermore, the state does not seem to be too bothered to shut down the pirates unless their radio transmissions interfere with those of the emergency services or those of legal broadcasters.

104 the first domestic private television channel, nonetheless, it started broadcasting almost 10 years later in September 1998 (at the award of a licence there is no time limit on the setting up of the service). The Broadcasting Act 1990 introduced limits on advertising broadcast by public service broadcasters, they were allowed a maximum of 7.5% of the total daily transmission time. Previously, as I already suggested, it was the Authority that made decisions on advertising limits that had to be approved by the relevant minister. On the surface and officially the cap on advertising was to enable competition for advertising in the field of media (in terms of media competition Ireland is in a specific situation due to overspill from the United Kingdom as well as the dumping of UK newspapers). Since then it has, however, become clear that corruption was involved and the limit was repealed by the Broadcasting Authority Act 1993. Section 4 of the Act enables the minister to draw up and amend, from time to time as he thinks proper, codes governing standards, practices and prohibitions in advertising, sponsorship or other forms of commercial promotion in broadcasting services and the Authority, every sound broadcasting contractor and the television programme contractor shall comply with every such code in relation to its broadcasting services. The same act bound the Authority to create a so-called independent television programme account which would be used for the commissioning and making of independent television programmes. The Act set the annual amounts that the Authority was to pay into the account (starting with the sum of 5 million in 1994) by 1999 when it was to reach 20 % of the television programme expenditure in the preceding year. Farrel Corcoran (who acted as Chairman of the Authority between 1995 and 2000) points out two consequences of this stipulation for RT. On the one hand, it inevitably led to the downsizing of RT as a production organization and also to long-term arguments with Film Makers Ireland the independent sectors professional organization on how to interpret the clause.

If taken at face value, it meant that instead of reaching a stable plateau in 1999 when the formula reached the full 20 percent, RT would find itself on a moving escalator, paying out ever larger amounts to the independent producers. This was because the base on which the 20 percent was calculated would continue to be subject to the rampant inflation in the global television programme market that was manifest in the spirally cost of acquiring programme and sports rights (2004: 104).

105 Apart from directly broadcasting-related legislation other important legislation in the 1990s included the passing of the Competition Act of 1991which established a Competition Authority127 as well as the passing of the Freedom of Information Act in 1997. A significant event in respect of broadcasting occurred on 19 January 1994 when the government allowed the directive under section 31 to lapse. This, however, did not indicate a major move towards securing freedom of broadcasting, as John Horgan argues:

The original directive had been imposed at a time of acute political sensitivity, and had been intended largely to ease the task of the politicians (as the politicians themselves defined that task) in controlling a difficult political situation. Its abolition at this point was not due in any way to a sudden access of respect for freedom of expression on the part of the successors of those who had imposed it in 1971. It was due primarily to the fact that the Taoiseach [Prime Minister], Albert Reynolds, believed correctly as it turned out that it would be an important confidence-building measure in the wary and tentative approach to a new IRA ceasefire.128 The British ban on interviews with Sinn Fin129 or IRA members or supporters, which had been imposed in 1988, was lifted shortly afterwards by a somewhat annoyed Mrs Thatcher, who felt that she had no alternative in the circumstances (2004: 202).

Another major event (in 1996) was that RT was granted an increase in the licence fee, in fact the first increase in a decade (the Authority has to apply to the government for an increase in the licence fee, there is no system of indexing thus far).
127

The work of the Competition Authority in the sphere of media concentration has been heavily criticized. For example, the Competition Authority investigated the concentration of the Irish newspaper market and despite the concentration of ownership it concluded that there was sufficient editorial diversity thus media pluralism was not threatened.
128

On 15 December 1993 the British and Irish Prime Ministers (John Major and Albert Reynolds) signed a declaration according to which Sinn Fin (the political wing of IRA) could join the discussion on the future of Northern Ireland if IRA denounced violence. Similarly, democratic loyalist parties would also be able to take part if the paramilitary groups to which they were linked stopped violent activities. IRA declared an unconditional ceasefire on 31 August 1994 following 25 years of fighting, loyalist paramilitary organizations shortly followed with their own declaration of a ceasefire. The peace process eventually resulted in the signing of the Good Friday Agreement of 10 April 1998 which was backed by referenda in the Republic of Ireland as well as Northern Ireland and enabled the setting up of the Northern Ireland Assembly. Things did not go smoothly though and the Assembly was suspended in late 2003. New hopes regarding a power-sharing agreement arose in late 2004, however, at the time of writing (Spring 2005) no progress has been made.
129

The political wing of IRA. In Irish Sinn Fin means we ourselves, it is an Irish Republican party founded in 1905 with its main objective to end British rule in Ireland.

106 Major changes in broadcasting were introduced in the Broadcasting Act 2001. Some of the major issues involve provisions related to digital broadcasting and the establishment of Teilifis na Gaeilge. In the following I briefly summarize the major provisions of the Act. It establishes a transmission company which is to transmit analogue and digital broadcast television services, RTs transmission network is to be sold to the transmission company, in return for which it would receive 28 per cent of the shares of the transmission company. A multiplex company is also established by the Act and it stipulates that the Authority will get one multiplex, Teilifis na Gaeilge one half of one multiplex and the television programme service contractor another one half of one multiplex. The Act changes the name of Independent Radio and Television Commission to the Broadcasting Commission of Ireland (BCI) and empowers it to enter into digital content contracts. In relation to community broadcasting the Act binds the BCI to use a number of procedures to ensure that the communitys needs regarding broadcasting are fulfilled (it can carry out an assessment of the needs of the community in respect of broadcasting, should establish procedures that enable members of local communities to make submissions to the Commission in respect of which contracts should be entered into, it is bound to conduct surveys etc.). Also, the BCI is required to draw up codes of standards which apply to public as well as private broadcasters in the areas of general advertising, taste and decency, access rules (for people with visual and hearing difficulties) and childrens advertising. The Act further states that the national television and sound broadcasting service provided by the Authority is of public service character, it is to continue to be a free -to-air service and be made available, in so far as it is reasonably practicable, to the whole community on the island of Ireland and the Authority shall have all such powers as are necessary for or incidental to that purpose (section 28(1)). Section 28 further defines the type of programming required from the Authority, comprehensive range of programmes in the Irish and English languages that reflect the cultural diversity of the whole island of Ireland and include, both on television and radio programmes that entertain, inform and educate, provide coverage of sporting, religious and cultural activities and cater for the expectations of the community generally as well as members of the community with special or minority interests and which, in every case, respect human dignity (section 28(2)).

107 Another obligation is to provide news and current affairs programmes and facilitate contemporary cultural expression and promote innovation and experimentation in broadcasting. Further, the Act increases the amount that the Authority has to spend on programmes commissioned from independent producers. Another set of changes brought by the Act relates to the Broadcasting Complaints Commission (BCC). Traditionally the commission [BCC] had no full-time staff and its powers were quite limited in that it could only enforce the right to reply as set out in the relevant broadcasting laws (Truetzschler). According to the Broadcasting Act 2001 BCC investigates complaints and adjudicates about a claim, its decision must be published by the broadcaster (BCC has no power to award costs or expenses). BCC has 7 to 9 members serving for a maximum of 5 years (remuneration and allowances to be decided by the relevant minister), individuals who are nominated to either House of the Oireachtas or the European Parliament cannot be members of BCC and neither can those who are members of either House of the Oireachtas or the European Parliament or the Authority or the Broadcasting Commission of Ireland or Teilifis na Gaeilge. The Act establishes a new broadcasting authority Teilifis na Gaeilge which is to establish and maintain a public television broadcasting service primarily in the Irish language. The Act also repeals Section 31 of the Broadcasting Authority Act 1960 which enabled government censorship. There is another aspect of interventions in public service broadcasting that is mentioned by Corcoran, namely the influence of the Catholic Church. Corcoran observes that while in the 1960s Catholic Church officials made attempts at exercising some degree of control over broadcasting (he mentions the case of the archbishop naming three individuals working at RT who he felt had subversive influence to the then Taoiseach Lemass in 1962), in the 1990s the power of the Catholic Church has decreased to such an extent that there were no attempts at interfering with broadcasts in connection with a case of a paedophile priest in the late 1990s (2004:73). The foundation of the Irish language public service channel TG4 (originally TnaG) deserves attention. Its launch was preceded by lobbying (indeed there were also elements of civil disobedience, for details see Chapter 7 in Corcoran 2004). As I already mentioned attempts at reviving and maintaining the Irish language date back to the 19th century and the demand for Irish language broadcasting was particularly strong in the Western parts of Ireland (so-called Gaeltacht region) which has the largest share of Irish speakers. There were a number of available options related to the presence of the Irish language in broadcasting, in the end it was arguably the most expensive way that was chosen the founding of a separate and independent Irish language channel. Its launch was helped also by a turn in thinking about minority languages at the

supranational European level, that is at the European Union and the Council of Europe with initiatives such as the Charter for Regional or Minority Languages etc. The maintenance of

108 linguistic diversity thus served as a justification for the establishing of TG4 (for language rights and their relation to media and diversity see Chapter II p. 17). Obviously, the launch of a new public service television channel involved a series of financial as well as programming issues. In terms of programming the Broadcasting Act 2001 bound RT to produce 365 hours of Irish-language programming for the new channel annually (TG4 would get the programmes for free). In terms of financing the government was somewhat reluctant to provide the money needed out of the state budget thus in the end in July 1996 it announced an increase in the licence fee by 8 thus bringing it to 70 (just a reminder that this was the annual fee for both public service radio and television). It is not surprising that most of the money gained from the increase went to paying for TG4. The Broadcasting (Funding) Act 2003 establishes a broadcasting funding scheme. It binds the Broadcasting Commission of Ireland to prepare a scheme/s for the granting of funds to support specific types of programmes (on Irish culture, heritage and experience). The financial resources available for the scheme are an equivalent to 5% of net revenue form television licence fees and the scheme is to run for three years initially. In August 2004 BCI launched a public consultation process on the draft funding scheme. In the end of January 2005 it appointed a scheme director for the broadcasting (funding) scheme.
As is clear from the above Irish public service broadcasting has been financed mainly from licence fee and advertising revenue. Irish public service broadcasters find themselves in a particularly competitive environment (due to overspill from the UK). The maximum amount of daily broadcasting time devoted to advertising is decided by the Authority subject to approval by the relevant minister130 yet as the case of the Broadcasting Act 1990 (which introduced a cap on advertising) demonstrates undue interference can occur in this respect. Approximately half of the Authoritys income comes from licence fee (television licence fee) whi ch is not indexed and in order to secure its increase, the Authority has to apply to the government. In November 2003 RT made an application for an increase and received an increase of 2, with ef fect from January 2004. The licence fee (of 152 per annum) is to be paid by every household or business or institution, which has a television set. In terms of organizational structure RT is subject to the nine member RT Authority. The executive board headed by the director general is responsible for the day-to-day running of RT.

In November 2002 RT initiated the establishment of the Audience Council that would act as an advisory body with 22 members representing the public. The Council was set up in late 2003 in

130

In the Republic of Ireland there are two main forms of advertising regulation: government regulation and selfregulation by the industry itself. As I have already pointed out the Broadcasting Act of 1990 led to the development of a code of standards (by the relevant minister before the Broadcasting Act 2001 came to force and since then by the Broadcasting Council of Ireland) which currently governs broadcast advertising. The Office of the Director of Consumer Affairs can take legal action against businesses who advertise false or misleading products and services. The Broadcasting Complaints Commission deals with complaints received about material broadcast, both programmes and advertising, on licensed television and radio stations in Ireland (see p. 10 of the current chapter). The advertising industry itself is also self-regulatory (see also www.bci.ie).

109 order to bring the Authority closer to the public. The council acts as an advisory group to the RT Authority, it has 22 members and a life span of four years. Importantly, a more formal link between the Authority and the Council is established as the chairperson of the Authoritys Programme Sub-Committee will be an ex-officio ordinary member of the Council. The Audience Council interacts with the general public (via dedicated access type programming on Radio 1, public meetings, web pages, annual reports etc.), it communicates with the Authority (via the ex-officio member) and also with the director general as s/he attends at least one meeting of the Council annually and can make him/herself available as required. The members of the Council participate on a voluntary basis, they only have their expenses reimbursed.
Currently, in Ireland there are three national public service television channels: RT 1, RT 2 and TG4. There are also four public service radio channels (one of them in the Irish language). One commercial national radio channel Today FM operates in the country and over 50 regional, local, community etc. radio stations. As I have already mentioned overspill from the United Kingdom is a major factor and it involves channels such as BBC, UTV, C4, E4 Sky News etc. In respect of the launch of digital terrestrial television, the above discussed Broadcasting Act 2001 made provisions for it, the Irish government invited applications for multiplex licences in 2001. The only applicant has since withdrawn. In 2002 the Office of the Director of Telecommunication Regulation (ODTR) was replaced by the Commission for Communications Regulations (ComReg) and the current situation is unclear. In relation to Ireland and the introduction of digital television it must be born in mind that

with 51 per cent of Irish households subscribing to cable television at the end of 2000, Ireland had the fourth highest penetration of cable TV in the list of the ten Western European countries with the highest percentages of households subscribing to cable TV. The figure for Ireland is surpassed only by those of The Netherlands, Belgium and Switzerland. About 70 per cent of Irish television homes a re in multichannel areas, i.e. ones which can receive British television signals either off -air or via cable or via MMDS (multipoint microwave distribution system). Cable television homes can receive the three Irish television [channels], four British channels (Channel 5 is not available on most Irish cable television systems) and about 12 satellite television stations. Aside from becoming subscribers to cable television. viewers in Ireland can also become subscribers to the digital services of Sky Television. ... At the end of 2001 there were 194,000 subscribers to Sky Digital. ... Subscribers to Sky Digital have a choice of up to more than 100 broadcast television channels as well as a choice of subscription channels and pay per view films (Truetzschler).

Similarly as in the previous chapter the following section considers three overarching themes: 4. 5. 6. What links does the legislation envisage between public service broadcasting and democracy? What material resources do legislative measures allocate to public service broadcasting? How do legislative measures propose to ensure the independence of public service broadcasting from both the market and the state? And also two other related questions: What regulatory justifications and what regulatory mechanisms can we identify in the legislation?

What links does the legislation envisage between public service broadcasting and democracy? In the case of the Republic of Ireland a starting point for a discussion on the link between public service broadcasting and democracy is without doubt the fact that ever since the foundation of public service broadcasting Section 31 provided a means of intervening in and censoring broadcasting. The scope of the chapter made it impossible to discuss in detail the impact of the section on broadcasting, suffice it to say that an infringement of broadcasting freedom can hardly be considered supportive of the critical role of the media. As I already suggested in Chapter II when dealing with broadcasting regulation in general the regulation of content raises questions surrounding the justification of such an intervention when, on the one hand, there arises a need to protect certain interests (e.g. human rights) but on the other such an intervention is itself an infringement of a fundamental right or freedom. It also needs to be stressed here that the section raises a number of questions related to effective regulation its vague definition made it difficult to comply with it and even more importantly, the non-existence of legally stipulated

110
sanctions related to a breach of the section put the broadcaster (and the Authority) in a complicated and vulnerable position. It is important to remember that the section was left to lapse only in 1994. From the very beginning the Irish public service broadcaster (later on broadcasters) was seen as an instrument of public policy and as such it was not intended to be completely independent of the government. Under these circumstances it probably comes as no surprise that the first time a regulatory document stipulates what embodies public service broadcasting dates from as late as 2001 (the remit includes objective news and current affairs and service to the whole island of Ireland 131 for more detail see p. ???). Further, in Irish legislation related to public service broadcasting there is no reference to the creation of a shared discursive space of a political nature. Irish legislation on public service broadcasting stipulates that the service should cater for the needs of diverse groups, minorities, religious groups etc. Importantly cultural diversity and indeed linguistic diversity and language rights played a key role in the establishment of the Irish language public service television channel TG4. In respect of diversity I consider it important that the relevant legislation has specific provisions in relation to local (community) broadcasting that attempt to ensure that the needs of communities are served by public service broadcasters. In respect of public supervision over public service broadcasting there are a number of stipulations which might actually strike one as being somewhat loosely defined. In this respect it is enough to think about the power of the relevant minister to appoint t he chairman/chairwoman of the Authority, the lack of stipulations and mechanisms related to nominations for membership (and the selection of members), the relevant ministers control over remuneration or indeed the fact that the period in office is not strictly give n but rather stipulated in terms of an upper limit. Many of these mechanisms and stipulations are determined by political culture, nonetheless, they do not appear to best guarantee the supervision over public interest in broadcasting. Legal stipulations that are currently in force are clear about possible clashes of interest and stipulate conditions of membership (as well as restrictions on it). Importantly, RT set up an audience council with the aim of bringing the public service radio and television broadcasters closer to the public. Nonetheless, judging by the information on the Councils web pages it lags behind what it promised to achieve, one finds hardly any information about its activities on the Internet. The audience council could indeed represent one of the possible ways in which to increase the accountability of the public service broadcaster to its public yet in the case of the Republic of Ireland public service broadcasting appears to be accountable first and foremost to parliamentary representatives.

What material resources do legislative measures allocate to public service broadcasting? In the Republic of Ireland public service broadcasting is financed from a licence fee and income from advertising (there are limits set on the amount of daily broadcasting time that can used for advertising). The licence fee is not indexed (although there was an unsuccessful attempt to convince the relevant minister of the importance of this measure) and the public service broadcaster must apply to the government for an increase in the licence fee. I have already argued that such an application does not have to be successful and in some cases even a successful application actually does not serve as a continuous increase in the broadcasters income but rather as a solution to a momentary situation (such as the increase in the licence fee at the time of the launching of the Irish language channel TG4 to de facto finance the launch). I have already argued that this arrangement leaves public service broadcasters vulnerable to inflation and to some extent also to the will of advertisers (importantly the case of the Broadcasting Act 1990 demonstrates that advertising limits can easily be changed thus leaving the broadcaster with holes to fill). Without any doubt, as Corcoran (2004) clearly shows, the fact that public service broadcasters must discuss their financial decisions (e.g. investment, bidding for licences etc.) with government representatives/civil servants puts them into a competitive disadvantage compared with privately owned broadcasters. Irish legislation on public service broadcasting is surprisingly lacking in provisions preventing media concentration. It, however, appears to be much less surprising that economic characteristics of public service broadcasting are not particularly stressed in regulation. How do legislative measures ensure the independence of public service broadcasting from both the market and the state?

131

This part of the remit was not complicated only by Section 31 which restricted reporting on Northern Ireland and the activities of paramilitary groups but also by the lack of technical equipment that would make broadcasting over the whole territory of Northern Ireland available.

111
In this respect we could again turn to Section 31 and financial independence as well. As I already argued Section 31 provided a channel for the government to censor the public service broadcaster yet I must stress that it was only used in relation to prohibiting the appearance of paramilitary organizations in broadcasts (thus in fact in a rather limited way yet its rather loose wording made matters terribly complicated as I already pointed out). The political independence of members of supervisory and regulatory bodies is ensured by stipulations that prevent members of either house of the Oireachtas (or the European Parliament) to serve, for example, on the Authority. It can be argued that the restriction should be wider, including, e.g. also political parties. Members of supervisory and regulatory bodies must also alert to any possible conflict of interests in the course of their work. There are also subtler and less direct ways of interfering in broadcasting, yet, Corcoran (2004) points out that he did not encounter such attempts (nor similar attempts made by representatives of the Catholic Church) while he acted as chairman of the Authority. Without doubt a major government intervention in public service broadcasting was enabled by the Broadcasting Act 1990 which reduced the limit on advertising. This act actually demonstrates that pressure on politicians (in a better case resulting from lobbying in a worse one from corruption) from players on the market can be truly threatening to public service broadcasting.

I have already suggested in the previous chapter that public service broadcasters could be subjected to a regular review that would assess their remit, financing etc. and would guarantee their continued existence and financing for a certain period of time. Public service broadcasters everywhere in the world find themselves under increased competition, yet the case of the Republic of Ireland is a complex one RT finds itself in direct competition with arguably the best public service broadcaster in the world (BBC) as well as privately owned broadcasters (free-to-air as well as subscribed to; terrestrial, cable as well as digital).
In the Republic of Ireland private broadcasters are not bound by legislation to devote a percentage of their broadcasting to public service programming. What regulatory justifications and what regulatory mechanisms can we identify in the legislation? The Republic of Ireland has a dual regulatory regime (i.e. there are separate regulatory and supervisory bodies for public service and private broadcasting). In terms of technological convergence most legislation relates to digitalization, there has not been much discussion on the merging of regulatory authorities, for example. Regulatory justifications include effective communication, public service and diversity, in relation to public service broadcasting there are, however, no references to economic benefits (e.g. relating to the very basic economic nature of broadcasting it being a public good as well as a merit good and arguably having significant positive externalities). Public service broadcasters are essentially self-regulated and prevalent regulatory measures are of the structure and behaviour type (regulation of content is more limited) which is in line with latest developments in broadcasting regulation as identified in Chapter II. The following and at the same time concluding chapter provides a comparison among the analyzed case studies and considers lessons to be learnt from them.

112

CONCLUSION

The dissertation opened with a discussion of academic approaches to public service broadcasting and moved on to an analysis of the regulatory framework and legislation on public service broadcasting in the European Union, the Czech Republic, the Slovak Republic and the Republic of Ireland. In the course of the analysis it became clear that the academic approach to public service broadcasting and the approach on the part of legislators and regulators differ significantly. In the following I summarize the findings of the dissertation in relation to the three overarching themes identified in Chapter I and pursued throughout the dissertation. Regulatory and legislative approaches to public service broadcasting and democracy, to the material base of such broadcasting and to the independence of public service broadcasting from both the state and the market are interrelated and overlap thus in the following I do not maintain a clear distinction among them. The dissertation opened with a discussion of Habermas concept of public sphere and the link between the public sphere and media, it moved on to consider this link in contemporary societies and in the context of public service broadcasting. There are, however, other issues to be kept in mind as well that relate closely to broadcasting and public interest. Broadcasting is a field that should be regulated in the public interest, it is so not only because of a number of philosophical arguments (e.g. broadcasting serving citizens cultural and political rights etc.) but also because of its very specific economic characteristics (broadcasting is a public good, it is non-excludable and

113 non-exhaustible). Chapter I also outlined ways in which the theoretical issues related to public service broadcasting, public sphere and public interest are translated into concrete systems of public service broadcasting. The chapter outlined three such systems: the social devolutionary, the liberal corporativist and the public service ones. All the three systems are characterized by measures that attempt to ensure the broadcasters independence from political and economic influences and all of them have inbuilt imperatives to serve the public (e.g. in terms of providing programmes that maintain the culture of various groups living in the given society). Systems of public service broadcasting were established mostly in the 1950s and 1960s when they were seen as legitimate institutions with educationalist and nation-building agendas. However, the situation has changed radically since and public service broadcasters face questions of legitimacy, fiscal problems and a general questioning of the mission of public service broadcasting in the face of increasing national as well as supranational competition. All the three outlined systems of public service broadcasting are vulnerable to imbalances, there are niches through which interest groups might attempt to influence them and financial backing has also often been problematic. All the above mentioned issues are closely linked to the regulation of public service broadcasting. General issues linked with broadcasting regulation were discussed in Chapter II. The implications of the overwhelming trends of deregulation and the neo-liberal economic ethos for public service broadcasting are profound. The increased stress on competition and adherence to rules governing competition on broadcasting markets (including state aid regulation) put public service broadcasters into a complicated situation, not least because they are expected to gain part of their revenue from commercial activities. The licence fee system of public service broadcasting funding has been under constant attack from commercial broadcasters who understand it as unjustified. Changes in the regulation of public service broadcasting have been rather frequent in the three analyzed countries but paradoxically they have not been concerned with technological convergence. The USA and Great Britain reacted to technological convergence by establishing new regulatory bodies, this line has though not been followed by the European Union and it is unlikely that the analyzed countries will have new regulatory bodies set up in the near future to specifically address convergence issues. The public service broadcasting systems in the three analyzed countries can be characterized as the public service type, characterized by a high degree of internal diversity. Public service broadcasting is in the three countries funded by a combination of licence fee and income from advertising. The amount of the licence fee as well as of advertising (respectively income from advertising) is set by the government. None of the countries has a system of indexed licence fee that would ensure that the licence fee would grow in line with inflation. In all the countries public

114 service broadcasters are essentially self-regulated (supervised by specific bodies) and the supervision over public service broadcasting is to a large degree in the hands of the government. This is obviously due partly to the fact that the legislative framework for public service broadcasting (and broadcasting in general) is set by the political representation but also because of the way in which bodies supervising public service broadcasters are set up. Although in some of the analyzed countries nominations to these bodies are expected from a wide ranged of groups existing in the given society, they are in the end approved by the government respectively parliament. The case studies illustrate clearly that in all the three countries at some recent point in time politicians attempted to exercise control over public service broadcasters, it is enough to think about the fate of the Slovak Television under Prime Minister Meiar or the rationale behind the Broadcasting Act 1990 passed in Ireland. In terms of findings related specifically to the legislation analyzed there are general points that apply to all the researched countries. First of all, stipulations and definitions that one finds in such legislation are sometimes too general and that in fact in relation to issues that can easily become subject to disputes (such as objective and fair political reporting). In this respect, it is enough to think of the decision of the Irish High Court in relation to a report on the referendum on divorce broadcast by RT when the broadcaster allegedly gave more space to political parties supporting the yes vote than to those of the opposite opinion. The Court decided that RT was wrong in using political parties as its starting point in the allocation of broadcast time in a referendum campaign. This decision was to have serious consequences for the broadcaster.

By applying equality in broadcast coverage as the guiding principle in covering a general election, individual candidates or political parties could claim with some justification that they were not being treated fairly unless coverage for their views was equal to that provided to larger parties. It is likely that any dissatisfied minority party or independent candidate could institute legal proceedings to ensure coverage equal to the major parties. This would substantially inhibit RTs general editorial independence in deci ding its broadcast treatment of future elections (Corcoran, 2004: 89, for more detail see pp. 87-90).

The three countries all have a dual regulatory system, i.e. private and public service broadcasters are regulated separately. Also, in all the three countries legislators equate public service broadcasting with public service broadcasters, not making significant use of the possibility of binding private broadcasters to devote a portion of their broadcasting time (income) to programmes in the public interest (e.g. original national programming, original childrens

115 programming etc.). The fact that in Ireland public service radio and television are not supervised separately could provide an inspiring example to Czech and Slovak legislators, such an arrangement would make all the parallel legislation and regulatory and supervisory bodies for public service television and radio unnecessary. Another general feature of the regulation of public service broadcasting (and indeed of broadcasting in general) is the lack of a public debate on the regulation of broadcasting as well as its roles in the society. Issues that are of general interest and should be subjected to a public discussion include the deregulation of the broadcasting market and its subsequent impact on the broadcasting market (for example, the impact of competition in the advertising market or the future funding of public service broadcasters in a deregulated market). Anecdotal evidence though suggests that there is much more interest on the part of the general public and the government in high-profile but somewhat tabloid issues (Corcoran, for example, recalls pressures on the Authority to inform the government of the salaries of the most popular television anchors). Another general feature of public service broadcasting regulation is the lack of channels that would set up effective means of communication which the supervisory bodies and broadcasters would use when making decisions that must be approved by the government (such as major investments or sales). The following sections summarize the findings in relation to the three overarching themes that were pursued in the dissertation, the first of them being public service broadcasting and democracy. In general public service broadcasting is characterized by diverse programming (the simplest and most often used way of reflecting this demand in legislation is to bind the public service broadcaster to cater for the needs of various groups within society), general accessibility, accountability to the public and some element of public finance. In legislation, as I already hinted, we find references to the provision of a service for various groups within society (including ethnic minorities; in the case of Ireland there is a separate Irish language channel), to the maintenance of the national cultural heritage (e.g. a stipulation to look after the national film archives, provide opportunities for new talents etc.) as well as roles that are closely related to the political aspects of citizenship (such as the provision of objective and balanced news and current affairs; separate stipulations on political advertising) yet these tend to be vaguely defined leaving the broadcasters vulnerable to accusations of not properly fulfilling their assigned roles. Legislation in all the analyzed countries tends to stress the informational role fulfilled by public service broadcasters and tends to disregard the creation of a forum for public debate. Essentially, in all the three countries the accountability of public service broadcasters to the public is mediated by the supervisory bodies which represent the public. The major problem in this respect, however, is that the supervisory bodies are first and foremost accountable to the political

116 (respectively parliamentary) representatives. My analysis of policies relating to public service broadcasting shows that there are loopholes through which political pressure can (could) be exercised. In the case of the two former communist countries there is a gradual move towards regulatory and supervisory bodies that are somewhat less at the mercy of political parties (however, the parliaments still play a decisive role). In the case of Ireland, on the other hand, it is not really any of the houses of parliament that has significant powers related to broadcasting but the relevant minister himself/herself. I attempted to outline the long process in the case of the Czech and the Slovak Republics during which negotiations were made as to the establishment and appointment of members of regulatory and supervisory bodies. Bearing in mind the complex legislative arrangements relating to the nomination and appointment of, for example, members of regulatory and supervisory bodies, it comes as something of a surprise that in the case of Ireland the minister (respectively the government) is free to appoint members of such bodies. This strikes me particularly in the case of public service broadcasters where one would expect some representation of the public in the supervision (not necessarily financial management) over the institution. The mechanisms in which the public is represented in decisions about public service broadcasters are clearly insufficient in all three countries, the same relates to mechanisms of accountability (the Czech and Slovak Republics do not have a formal complaints commission related to broadcasting). In the case of the Republic of Ireland there was a not entirely successful (judging by information available on RTs website) attempt at setting up an Audience Council, a similar arrangement had a very short-lived existence in the Slovak Republic. I would argue that it is of crucial importance to find new ways in which the public can have its say in matters relating to public service broadcasting and its supervision. This is profoundly important as public service broadcasters find themselves under increased pressure to compete with private broadcasters for ratings. This pressure is very often exacerbated by the political representatives themselves. In fact, to force public service broadcasters into battles over ratings does not seem to make any sense as public service broadcasting is a merit good thus by its very nature a good of which more should be consumed than people would willing do. Moreover, although I have not dealt with this issue in detail here, Czech and Slovak legislators go into great length to prevent the conflict of interests in the case of members in regulatory and supervisory bodies, in the Irish case the stipulations are much less strict (they do not relate, for example, to membership in political parties). Obviously, these comments relate to formal arrangements and disregard the actual reality of appointing members which may have much to do with the overall political culture and broader socio-economic issues. In relation to the provision of finances for public service broadcasting I have already argued that more attention should be paid to the basic economic characteristics of broadcasting. In all the

117 three countries public service broadcasting is funded from two sources: licence fee and income from advertising (the amount of which is regulated stricter than in the case of private broadcasters). It is without any doubt that public service broadcasting is becoming increasingly more expensive, for example in Ireland in 1995 RTs revenues increased by 8% while operating costs went up by 13%. Problems with the financing of public service broadcasting are similar in nature in the three countries. The unwillingness of political representatives to index the licence fee on an annual basis (according to the inflation rate) or to allow increases in advertising time apply to all the three countries. In the Irish case the application for an increase in the licence fee directly to the relevant minister appears to be a better procedural arrangement than in the case of the Czech and Slovak Republics where there is no formal channel in which an application could be made (the Council of the Czech (respectively Slovak) Television can make suggestions to the respective chamber of the parliament in its annual report). It is relevant to pose for a second and consider (or rather speculate on) the unwillingness of the political representations in all three countries to increase the licence fee. Rather than provide my own speculation I rely on Farrel Corcorans:

The myopic view of this is that Governments live in constant fear of the electoral effect of declaring an increase and when it has to be done, tend to want to minimise the public impact by announcing it in July, as the political (and much of the media) apparatus is preparing to wind down and go on vacation. If this were the full explanation, a relatively painless way to ensure that the licence fee matches inflation is to link it to the consumer Price Index. A more realistic explanation for the very low level of public support for broadcasting in Ireland [and arguably also in the Czech Republic and Slovakia] is the desire of politicians (of all parties) to feel they have some leverage over, if not control of, RT [respectively CT and ST] and that this is manifested in a public way (2004: 99-100). Although my analysis did not go to such a depth as Corcorans it is likely that I would have arrived at the same conclusion when he argues that attitudes to increasing the licence fee actually reflect that there is a lack of consistent attention to policy formulation and revision across the whole administrative system, from political parties to the recesses of the civil service (ibid.: 100). There is another point in relation to the licence fee that is reflected in legislation. Public service broadcasters are bound by law to have the licence fee collected by the postal service operating in each of the countries, maybe the time has arrived when the collection should not automatically be attributed to the postal service but be the subject of a tender.

118 Income from advertising (thus effectively the setting of limits on the daily broadcasting time to be allocated to it) can actually become a political question. In fact legislators should not only be concerned with the impact of the amount of advertising on the quality of programmes (advertising as such does not increase or decrease the quality of programmes) but also with the intensity of competition for advertisers that broadcasters face in the same market as this is of key importance in relation to the quality of broadcasting. The last issue in relation to the financing of public service broadcasting that I would like to raise is the lack of any stipulation that would bind public service broadcasters to inform the public in detail of the cost of individual programmes and their detailed expenditure. Arguably, this would provide public service broadcasters with another set of justifications when seeking public support, for example, for an increase in the licence fee. I have already dealt with issues related to the independence of public service broadcasters from the state, let me now consider the market. In all the three cases it is clear that public service broadcasters face a pro-market approach on the part of political representatives. This results in a number of complications and unrealistic expectations (for example, the Czech Television was expected to provide a public service but for almost four years from its establishment it was not clear which frequencies it will be awarded permanently or there were suggestions in the Czech Council for Radio and Television Broadcasting that the Czech Television should purchase set-top boxes for each Czech household as part of its leading role in digitalization). Irish public service broadcasters in comparison with Czech and Slovak ones face much more competition. The pro-market deregulatory approach is reflected also in the overwhelming scope and amount of regulation (particularly amendments) relating to public service broadcasting in the case of the Czech and Slovak Republics which is not matched by similar regulation relating to private broadcasters. The award of licences for private broadcasting in all three cases offers food for thought. The Czech and the Slovak cases illustrate extremes in terms of intervention for economic (proconsumer, more choice arguments, competitive media market) and political party purposes (the case studies of TV Nova and Markza are good examples of how not to award licences). In the case of Ireland it is striking at first glance that TV3 was awarded a licence without being bound to begin broadcasting within a certain period of time. The delay of ten years can be explained neither in competition terms (if you do not broadcast you do not compete) nor in public service terms. In the cases of the other two countries the licence is revoked unless the broadcaster starts broadcasting within a time limit set by law. Despite the pro-market approach in all the three cases competition authorities fail to ensure that there is no medium with a dominant position on the broadcasting/print media market.

119 In the course of the dissertation (except for Chapter I) I have knowingly refrained from using loaded terms such as crisis to characterize the current understanding of the role of public service broadcasting as reflected in legislation. My analysis, has, however, reflected that in many ways legislation does not reflect and match the findings and arguments developed by academics and that there is much space left for improvement. In this respect in all the analyzed countries the case of digitalization and the legislators failure to establish a framework within which public service broadcasters could act as beacons in introducing a new and challenging technology is a telling one. Perhaps the most important and also the most obvious conclusion is that in all the three countries legislators should first and foremost decide upon a consistent, comprehensive and workable vision of the role of public service broadcasting in contemporary democratic societies (and in this be guided by the term public service which should not be confused or equated with political or partial service). They could be aided by bringing public service broadcasting into the centre of an informed public debate. In respect of likely future developments in the regulation of public service broadcasting one can safely say that the pressure to comply with competition regulation is likely to grow. It would be surprising to see changes in legislation that would lead to establishing new more sustainable ways of financing public service broadcasting and such that would decrease the power of governments (respectively parliaments) over supervisory bodies. These approaches will continue not only on the part of national organizations, supranational organizations (such as the European Union) are equally unlikely to go any further than declaring the continued need for public service broadcasting.

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List of Acts and Decrees (by country) Czechoslovakia Decree no. 51/1985 (Vyhlka federlnho ministerstva spoj . 51 ze dne 11. ervna 1985, kterou se vydv Rozhlasov a televizn d) Decree no. 100/1991 (Vyhlka federlnho ministerstva spoj c. 100 ze dne 5. bezna 1991, kterou se mn vyhlka federlnho ministerstva spoj . 51/1985 Sb., kterou se vydv Rozhlasov a televizn d, ve znn vyhlky . 76/1987 Sb., vyhlky . 39/1988 Sb. a vyhlky . 315/1990 Sb.) Act no. 63/1991 Coll. on the Protection of Economic Competition (Zkon . 63 ze dne 30. ledna 1992 o ochran hospodsk soute)

133

Act of the Federal Council of the Czechoslovak Federal Republic No. 468/1991 Coll. on Radio and Television Broadcasting (Zkon . 468 ze dne 30. jna 1991 o provozovn rozhlasovho a televiznho vysln)

Act No. 597/1992 Coll. on the Abolition of the Czechoslovak Radio, the Czechoslovak Television and the Czechoslovak Press Agency (Zkon . 597 ze dne 2. prosince 1992 o zruen eskoslovenskho rozhlasu, eskoslovensk televize a eskoslovensk tiskov kancele)

Czech Republic Constitution of the Czech Republic (stava esk republiky) Act of the Czech National Council No.483/1991 Coll. on the Czech Television (Zkon esk nrodn rady . 483 ze dne 7. listopadu 1991 o esk televizi) Act of the Czech National Council No. 484/1991 Coll. on the Czech Radio (Zkon esk nrodn rady c. 484 ze dne 7. listopadu 1991 o eskm rozhlasu)

Act of the Czech National Council no. 103/1992 on the Council of the Czech Republic for Radio and Television Broadcasting (Zkon . 103 ze dne 21. nora 1992 o Rad esk republiky pro rozhlasov a televizn vysln) Act of the Czech National Council no. 36/1993 (Zkon esk nrodn rady . 36 ze dne 22. prosince 1992 o nkterch opatench v oblasti rozhlasovho a televiznho vysln) Act no. 252/1994 Coll. on Radio and Television Licence Fees (Zkon . 252 ze dne 8. prosince 1994 o rozhlasovch a televiznch poplatcch) Act no. 301/1995 Coll. (Zkon . 301 ze dne 8. prosince 1995, kterm se mn a dopluje zkon . 468/1991 Sb., o provozovn rozhlasovho a televiznho vysln, ve znn pozdjch pedpis, zkon esk nrodn rady . 103/1992 Sb., o Rad esk republiky pro rozhlasov a televizn vysln, ve znn pozdjch pedpis, zkon esk nrodn rady . 483/1991 Sb., o esk televizi, ve znn pozdjch pedpis, zkon esk nrodn rady . 484/1991 Sb., o eskm rozhlasu, ve

134 znn pozdjch pedpis, a zkon esk nrodn rady . 368/1992 Sb., o sprvnch poplatcch, ve znn pozdjch pedpis) Act no. 135/1997 Coll. (Zkon c. 135 ze dne 12. cervna 1997, kterm se mn a dopluje zkon . 252/1994 Sb., o rozhlasovch a televiznch poplatcch, zkon . 468/1991 Sb., o provozovn rozhlasovho a televiznho vysln, ve znn pozdjch pedpis, zkon esk nrodn rady . 103/1992 Sb., o Rad esk republiky pro rozhlasov a televizn vysln, ve znn pozdjch pedpis, a zkon esk nrodn rady . 484/1991 Sb., o eskm rozhlasu, ve znn pozdjch pedpis) Act no. 231/2001 Coll. on Radio and Television Broadcasting (Zkon . 231 ze dne 17. kvtna 2001 o provozovn rozhlasovho a televiznho vysln a o zmn dalch zkon) Act no. 192/2002 Coll. (Zkon . 192 ze dne 9. dubna 2002, kterm se mn zkon . 484/1991 Sb., o eskm rozhlasu, ve znn pozdjch pedpis, a o zmn dalch zkon) Decree no. 395 of 28.4. 2004 (Usnesen vldy esk republiky . 395 ze dne 28. dubna 2004 k zahjen dnho digitlnho televiznho vysln)

Act no. 82/2005 Coll. that modifies Act no. 483/1991 Coll. on the Czech Television as amended and Act no. 231/2001 on Radio and Television Broadcasting and modifies other acts in the light of amendments (Zkon . 82 ze dne 1. brezna 2005 kterm se mn zkon . 483/1991 Sb., o esk televizi, ve znn pozdjch pedpis, a zkon . 231/2001 Sb., o provozovn rozhlasovho a televiznho vysln a o zmn dalch zkon, ve znn pozdjch pedpis)

Republic of Ireland Broadcasting Authority Act 1960 Broadcasting Authority Act 1966 Broadcasting Authority Act 1976 Radio and Television Act 1988 The Broadcasting Act 1990 Broadcasting Authority Act 1993 Competition Act 1991 Freedom of Information Act 1997

135 Broadcasting Act 2001 Broadcasting (Funding) Act 2003

Slovakia The Constitution of the Slovak Republic (stava Slovenskej republiky . 460/1992 Zb.)

Act of the Slovak National Council No. 254/1991 Coll. on the Slovak Television (Zkon Slovenskej nrodnej rady . 254 z 24. mja 1991 o Slovenskej televzii)

Act of the Slovak National Council No. 255/1991 Coll. on the Slovak Radio (Zkon Slovenskej nrodnej rady . 255 z 24. mja 1991 o Slovenskom rozhlase) Act no. 468/1991 Coll. on Television and Radio Broadcasting (Zkon . 468 z 30. oktbra 1991 o prevdzkovan rozhlasovho a televzneho vysielania)

Act of the Slovak National Council no. 294/1992 Coll. on the Council of the Slovak Republic for Radio and Television Broadcasting (Zkon . 294 z 5. mja 1992 o Rade Slovenskej republiky pre rozhlasov a televzne vysielanie) Act of the Slovak National Council No. 482/1992 Coll. on the Slovak Television (Zkon . 482 z 29. septembra 1992, ktorm sa men a dopa zkon . 254/1991 Zb. o Slovenskej televzii)

Act of the Slovak National Council No. 483/1992 Coll. on the Slovak Radio (Zkon Slovenskej nrodnej rady . 483 z 30. septembra 1992, ktorm sa men a dopa zkon Slovenskej nrodnej rady . 255/1991 Zb. o Slovenskom rozhlase)

Act of the Slovak National Council no. 166/1993 Coll. on Measures in the Field of Radio and Television Broadcasting (Zkon . 166 zo 14. jla 1993 o opatreniach v oblasti rozhlasovho a televzneho vysielania) Act of the Slovak National Council No. 82/1995 Coll. (Zkon . 82 zo 7. aprla 1995, ktorm sa men a dopa zkon . 254/1991 Zb. o Slovenskej televzii v znen neskorch predpisov)

136 Act of the Slovak National Council No. 212/1995 Coll. (Zkon . 212 z 20. septembra 1995 o koncesionrskych poplatkoch v znen zkonov . 225/1996 Z.z., . 320/1996 Z.z., . 188/1999 Z.z. a . 241/2003 Z.z). Decree no. 247/1995 Coll. (Vyhlka Ministerstva financi Slovenskej republiky z 13. novembra 1995, ktorou sa ustanovuje vka koncesionrskych poplatkov) Act no. 225/1996 Coll. (Zkon Nrodnej rady Slovenskej republiky . 225 zo 4. jla 1996, ktorm sa men a dopa zkon Nrodnej rady Slovenskej republiky . 212/1995 Z. z. o koncesionrskych poplatkoch a o zmene zkona . 468/1991 Zb. o prevdzkovan rozhlasovho a televzneho vysielania v znen neskorch predpisov) Act no. 320/1996 Coll. (Zkon Nrodnej rady Slovenskej republiky . 320 z 22. oktbra 1996, ktorm sa men a dopa zkon Nrodnej rady Slovenskej republiky . 212/1995 Z. z. o koncesionrskych poplatkoch a o zmene zkona . 468/1991 Zb. o prevdzkovan rozhlasovho a televzneho vysielania v znen neskorch predpisov a zkona Nrodnej rady Slovenskej republiky . 225/1996 Z. z.) Act of the Slovak National Council No. 321/1996 Coll. (Zkon . 321 z 23. oktbra 1996, ktorm sa men a dopa zkon . 254/1991 Zb. o Slovenskej televzii v znen neskorch predpisov, zkon . 255/1991 Zb. o Slovenskom rozhlase v znen neskorch predpisov a zkon . 166/1993 Z.z. o opatreniach v oblasti rozhlasovho a televzneho vysielania)

Act of the Slovak National Council no. 160/1997 Coll. on the Council of the Slovak Republic for Radio and Television Broadcasting (Zkon . 160/1997 Z.z.

z 21. mja 1997 o Rade Slovenskej republiky pre rozhlasov a televzne vysielanie a o zmene zkona . 468/1991 Zb. o prevdzkovan rozhlasovho a televzneho vysielania v znen neskorch predpisov) Decree no. 206/1997 Coll. (Vyhlka Ministerstva financi Slovenskej republiky . 206/1997 Z.z. zo 17. jla 1997, ktorou sa ustanovuje vka koncesionrskych poplatkov) Act no. 188/1999 Coll. (Zkon . 188/1999 Z.z. zo 6. jla 1999, ktorm sa men a dopa zkon Nrodnej rady Slovenskej republiky . 212/1995 Z. z. o koncesionrskych poplatkoch a o zmene

137 zkona . 468/1991 Zb. o prevdzkovan rozhlasovho a televzneho vysielania v znen neskorch predpisov) Act no.195/2000 Coll. on Telecommunications (Zkon . 195 z 19. mja 2000 o telekomunikcich) Act no. 211/2000 Coll. on Free Access to Information (Zkon . 211 zo 17. mja 2000 o slobodnom prstupe k informcim a o zmene a doplnen niektorch zkonov (zkon o slobode informci)) Act no. 308/2000 Coll. on Transmission and Re-Transmission (Zkon . 308 zo 14. septembra 2000 o vysielan a retransmisii a o zmene zkona . 195/2000 Z.z. o telekomunikacch) Act no. 241/2003 Coll. (Zkon . 241 z 19. jna 2003, ktorm sa men a dopa zkon Nrodnej rady Slovenskej republiky . 212/1995 Z. z. o koncesionrskych poplatkoch a o zmene zkona . 468/1991 Zb. o prevdzkovan rozhlasovho a televzneho vysielania v znen neskorch predpisov) Act of the Slovak National Council no. 16/2004 Coll. on the Slovak Television (Zkon . 16 zo 4. decembra 2003 o Slovenskej televzii)

Useful websites: Legislation searches (by country) http://www.mvcr.cz/2003/rady/sbirka_rady.html (Czech Republic) http://jaspi.justice.gov.sk (Slovak Republic) http://www.oireachtas.ie/ViewDoc.asp?fn=/home.asp (Republic of Ireland) http://europa.eu.int/eur-lex/en/ (European Union) http://www.coe.int/T/E/Human_Rights/media/4_Documentary_Resources/default.asp#TopOfPage (Council of Europe) http://www.ebu.ch/en/index.php (European Broadcasting Union) Websites of public service broadcasters:

138 www.ceskatelevize.cz (Czech Television) http://www.rozhlas.cz (Czech Radio) http://www.stv.sk (Slovak Television) http://www.slovakradio.sk (Slovak Radio) http://www.rte.ie (Radio Telefs ireann)