Time to revisit broadcast law

By Andre Bagoo
November 11, 2012 – newsday.co.tt

ParliamentTHE ARGUMENTS over the last two weeks over the Government’s request to use media air- time for its own programmes have been going around in public circles without reference to what exactly is said in licences granted to media houses under the Telecommunications Act 2001.

What is said in these licence agreements? According to the body with oversight for this process, all licences entitle the Government to two hours each day, or 14 hours per week.

“The concessionaire shall, on a free-of-charge basis up to a limit of fourteen hours per calendar week, and thereafter at an agreed rate … transmit any programme, announcement, information or other material which the Government may require to be transmitted as a matter of public interest,” reads clause D30 of the 2007 Generic Concession Document published by the Telecommunications Authority of Trinidad and Tobago (TATT). The 2007 document is the official guideline for drawing up licences. Clause D30 is understood to have been replicated in all agreements signed by broadcasters, agreements which they must sign as a condition of operation under the Section 21 of the Telecommunications Act.

If this is spelt out in licences already agreed to by media houses under long-standing legislation, what exactly is the issue? There can be no doubt that the Government is by law entitled to the air- time.

The legal power is currently used by the State to air programmes produced by the Government Information Services Limited (GISL). An example of such a programme was a half-hour documentary produced by GISL over recent initiatives to boost tourism; another documented the opening of a bridge. For decades, these programmes — as boring as they may be — have detailed the work being done by government ministries, conveying information about what taxpayer money is doing.

Two half-hour programmes are currently aired daily: one at 10.30 am and another at 11 pm, according to the GISL schedule. The weekend evening slots, however, are the only slots which are understood to be paid for, but at a discounted rate of 50 percent, in acknowledgement that the slots are in primetime.

The GISL programmes appear to convey public information as opposed to propaganda.

However, if the Government were to start using its legal right to go beyond information about the work of the State or issues and instead, for example, attack political enemies, then that may be a case to answer. The risk of abuse is perhaps something that should be considered for future reform or when most licences come up for renewal in four years’ time, as most will in 2016.

But as things stand, where is the evidence that the free broadcasts will be used for propaganda purposes? Is the current outcry not premature?

The issue of paid political broadcasts is already a fraught one. This is why most media houses are very careful about political advertising. So much so that political parties are often made to pay the full cost for any political advertisement upfront.

Though there may be legitimate concerns over propaganda, there is no doubt that State-commandeered broadcasts can be used for productive purposes. An example that comes to mind is the series of school programmes once produced by the Government Broadcasting Unit and played in schools and on the airwaves. What has happened to programmes like these? The GISL programmes that are already broadcast everyday – apparently without objection from anybody — are also arguably examples of the legal power being put to productive use.

Yet, none of these issues have informed the current debate.

Last week, the Media Association of Trinidad and Tobago (MATT) – itself an organisation which is hardly representative of the overall media —seemed to add confusion to the debate.

MATT has not issued a definitive statement of its concerns. Instead there have been contradictory reports of talking-points after closed-door meetings with Communications Minister Jamal Mohammed.

On the one hand, MATT president Suzanne Sheppard stated, “As it stands right now, it is the law and we abide in the law,” according to remarks published in one newspaper on Wednesday. But a day later, in another report, the MATT president appeared to say the opposite, “MATT’s position is that we are not at all in favour of this demand for broadcasting entities having to adhere to this requirement.”

Yet, most television stations already adhere to the requirements of the law.

However, the proposal to enforce the licence terms may have a greater impact on radio stations, where there may be no equivalent to the half-hour programmes currently aired on TV produced by GISL.

One radio station has been vociferously objecting to the exercise of the State’s licence rights, citing fears that the programmes would be used for propaganda purposes.

But did media houses initially not read the terms of the licences they signed?

Not only do the terms of each licence give the State a daily two-hour free pass, but the Telecommunications Act itself makes clear that media houses must allow access upon request by the State.

Regulation 23 of the Telecommunications (Access to Facilities) Regulations (LN 180/2006) – issued under the Act – states that, “A holder of a concession for the provision of a public telecommunications network or broadcasting service shall upon written request, provide access to its facilities and such access shall not be unreasonably withheld.” There is no time-frame stipulated in this provision.

While some have argued that the purpose of the two-hour airtime requirement is to deal with possible emergencies, the Act has a separate, specific provision to deal with this. In fact, it was this provision, Section 84, that was invoked by the State in 1990 during the attempted coup when radio stations in Port-of-Spain were taken over to contain the situation.

Under Regulation 23, when the State wants to access a media house’s broadcast facilities, an agreement has to be drawn up subject to negotiation. If the State intervenes under emergency powers, it must pay for any damage done (but not loss of profit).

While there are concerns over lost revenue due to the State using its entitlement, it is actually in the interest of the State to ensure that media houses that pay licence fees make profit in their commercial operations. This is because the licence fee is not a flat fee, but rather a percentage of profits. If the State itself disrupts profits of media broadcasters, it actually disrupts this stream of income into the Treasury.

Last week, the Trinidad and Tobago Publishers and Broadcasters Association (TTPBA) said the central issue was the definition of programming which is in the “public interest”.

“We are still not clear on the issue of what is public interest,” said TTPBA president Kiran Maharaj after a meeting with Mohammed.

“However, we understand that a concession document was signed and that matters of public interest are supposed to be allowed air time. We are trying to find a practical and reasonable middle ground.”

The Communications Minister has said the programmes are to be about informing the population about the work the State is doing.

“The people of Trinidad and Tobago, the citizens, the taxpayers have a right to know what their Government is doing. The people must know what the Government is doing with its resources so that they can make informed choices and decisions,” Mohammed said in a statement last month.

Once more, little has been said of what the licences actually say.

According to the 2007 TATT guidelines, the question of what is in the public interest is left for the State to decide under Clause D31 of the generic licence, which reads, “D31. Pursuant to condition D30, the Government may reasonably declare any matter or event to be of public interest and require the concessionaire to broadcast such matter or event, but the Government shall, in deciding the actual time of transmission and length of broadcast, consult with the concessionaire with a view to causing the least possible disruption to the normal commercial operations of the concessionaire.”

Thus “any matter or event” can be deemed in the public interest. But that determination is left to the State. The State is only asked to be “reasonable”, but must consult with each broadcaster on the question of scheduling, not content.

It would seem that until the law itself is reformed, the State’s right to two hours air-time per day cannot be challenged. It is an irony that these laws were passed under the premise of supposedly liberalising the media sector after a period when it was almost deemed impossible to get a licence due to the rigors of the previous regime. Perhaps the focus should be more on reforming the law in the long-term, rather than trying to evade the law itself.