1.
The Radio Landscape and the Role of
the Regulator
a.
The Role of the Regulator
We believe that the Regulator of the Irish Radio Industry has two broad functions:-
(i) To continually develop the sector and maximise the diversity of services available to the listener in an orderly and sustainable manner.
(ii) To monitor and regulate the operators of these services to ensure that they meet their statutory obligations and operate within the terms of their contracts.
At present responsibility for the regulation of the industry falls to two bodies, the Broadcasting Commission of Ireland and the RTE Authority. This is an unsatisfactory starting position as it is difficult for two bodies to provide a coordinated and cohesive regulatory regime for the industry. The Government has recognised this flaw with the proposed formation of the BAI and this should be implemented as soon as possible. Once this is achieved the Regulator can then begin to address the questions raised in points one to four of the consultation document. These questions are all generally of a development nature and our responses are set out below:
a. How should the overall
structure of the radio landscape in Ireland be defined and achieved?
The regulator should structure the radio landscape in such a manner as to maximise diversity of services available to the listener in an orderly and sustainable manner. In essence this will mean that services will be delivered by the public, private and community sectors depending in accordance with the Regulators view of who is best placed to deliver a particular service.
b. Is the existing structure and
mix of national, regional and local commercial and community stations
appropriate?
What, if anything, is missing?
It will be up to the Regulator to continually assess, what if anything, is missing from the selection of services being offered. Thereafter the Regulator can evaluate whether such a service is worthwhile and proceed to develop a structure to deliver the service if deemed worthwhile.
c. Does it remain appropriate to
leave the development of local and regional radio to commercial or private
interests?
Local radio is generally regarded as being a tremendous success so it would appear that commercial or private interests have proved to be appropriate in developing these sectors. However this should not preclude the Regulator from introducing other structures in the future if this was considered appropriate.
d. What are the strengths and
weaknesses of the current franchise system? What are its implications for the
structure of the Radio
Sector in Ireland?
The current franchise areas were drawn up following a public consultation exercise in advance of the first licensing of local radio. In the main they appear to have stood the test of time with little change introduced by the Regulator or demanded by the public. However once again this should not preclude the Regulator from making changes if it considers that such changes are necessary to meet its objectives.
e. What steps should be taken to
further develop community and “special interest” radio services in Ireland?
This is a matter for the Regulator to assess whether there is demand for such services, identify suitable operators and licence accordingly.
2. Policy
Objectives for the Independent Sector
a. Are these policy objectives
still relevant? How might these objectives be changed?
We believe these policy objectives are as relevant today as they were in 1988 and that little change is needed.
b. What should be the medium term
priorities for the regulation of the radio sector in Ireland?
The medium term priorities for the Regulator should be to
(i) Amalgamate the regulatory functions of BCI and The RTE Authority into the BAI
(ii) Continue to develop diversity in an orderly and sustainable manner
(iii) Develop effective and fair methods of regulating the operators in the industry.
c. Would it be appropriate for
the Minister to have the power to give policy directions to the BCI and ComReg
in relation to
radio licensing?
We believe that the Minister’s remit in this area is to formulate policy and through legislation or other methods have that policy implemented. In this regard we believe that the Minister should look at the whole area of licensing of operators because we feel the present legislation does not deal adequately with the complexities of re-licensing mature franchise areas. Our views on this matter are dealt with in detail under the licensing section of this submission.
3. Diversity
and Plurality
Ensuring diversity of services or content is a primary function of the Regulator. As already stated we believe the Regulator should seek to maximise diversity in an orderly and sustainable manner and it is important to point out that the BCI has implemented an aggressive scheme to increase diversity over the last five years. Nonetheless the spectrum should not be utilised simply for the sake of utilising it. Instead the Regulator should carry out detailed research into what additional tastes are need to be catered for and proceed to selecting suitable operators to provide the service. Ownership of operators is a far less important issue than proper regulation of the operator when seeking to maximise diversity. The requirement is to agree the remit with the operator and then monitor to ensure the remit is being met.
4. A
Citizen’s Voice
The establishment of an audience council might be useful as a sounding board from the Regulators perspective. However it is worth noting that substantial audience research is carried out on a rolling and independent basis on behalf of the industry and in addition to this many operators carry out substantial internal research to ensure content broadcast is what their target audience wants.
5. Licensing
or Re-licensing in Mature Franchise Areas
The starting point in relation to licensing is to examine the reasons behind the process. It is akin to offering an individual a job except that it will be re-advertised again after a period of time even if the incumbent is performing very well. Two distinct propositions are put forward as a justification for this arrangement and we believe that the Government can only form new policy in this area when it has considered whether these remain valid in what is now a mature industry.
The first proposition is that there are a limited number of radio licences available and that these should be made available on a period basis. Secondly, licence renewal is viewed as a form of regulation against any operator who is not performing because it enables the selection a new operator.
We believe that there is little validity to the first proposition. One can argue that there is a limited number of civil servant positions but no one suggests that these should be re-advertised every ten years irrespective of how the incumbent is performing. The point is equally made in respect of public bars. In any walk of life it is generally regarded that it is the experience gleaned from years at the coalface that builds the expertise and since everybody wants to ensure that the best qualified people are given the assignment it is difficult to see how any independent, fair and transparent process could not logically decide to continue with an incumbent who has performed well to date.
For the reasoning set out above we believe the Government should accept that stations that perform strongly across a wide number of criteria should have their licences renewed on a rolling basis without recourse to advertising. The re-licensing process which has just ended justifies the reasoning as there was very little change in the overall environment.
If the Government is not prepared to accept this viewpoint then we believe it is incumbent upon it to completely overhaul the re-licensing process to ensure that any risk that a new operator’s performance might be inferior to that of the incumbent’s is eliminated. Issues that the Government may need to consider in this regard are dealt with later, when addressing the merits of the present licensing system.
And so, to the proposition that re-licensing is an effective form of regulation. We are totally in favour of proper and effective regulation and thus question the wisdom of issuing long term contracts as a means of ensuring these goals. Long term contracts are necessary initially to establish the business. Thereafter a system of renewals by review rather than by issuing a further long term contract would be a more preferable form of regulation. These renewals would be performance based. Re-advertisement of the licence would be used in situations where the operator was consistently performing poorly across the relevant criteria
Re-licensing – Has the process ensured that the best operator for the franchise area is selected and that this is done in a clear and transparent manner?
Regrettably we believe that the process has not passed these tests and that the overall process is deficient in three key aspects. Indeed we would agree with much of the criticism levelled at the process in the Government commissioned Ox report about in particular in the three areas described below.
Analysis and Evaluation of Applications
The Commission goes to great length to ensure the applications are of a very high standard. In its guide to submissions it details all of the criteria laid down in legislation and developed by the Commission itself to be covered by prospective applicants. However the Commission’s analysis of the applications is deficient. In particular it does not carry out or commission any independent research to enable it examine the veracity of the key data and assumptions contained in the applications. Accordingly it has no predefined conclusions or yardsticks to use in the evaluation of these. As a result we encountered a number of contradictions and unresolved issues in a process in which we were involved in and where, subsequently the Commission were unable to provide us with any satisfactory explanations.
In our opinion the inability of the Commission to adequately explain and deal with these inconsistencies seriously impinges upon the credibility of the process.
The Absence of Any Marking Scheme in the
Decision Making Process
The Commission goes to great lengths to ensure that prospective applicants deal with all the relevant issues and criteria in their application. However when it comes judging and deciding upon applications it appears that the there is no marking scheme used by the Commission members. Apparently they take overall account of the criteria but do not score them on an individual basis.
Having set out clear and concise guidelines for applicants I feel the Commission’s inability to clearly differentiate and score applications calls into question the quality of its approach to the process. It certainty does little for transparency and accountability within the process.
Interpretation of the Legislation
The Commission interpret the existing legislation as giving them the absolute power in making licensing decisions. Licensing local radio stations is a complex issue. As non executive members they are not expert in this area nor do they take any recommendations from either the Commission executive or outside expert groups. It is a generally accepted principle that the best decisions are arrived at only when all relevant information is made available and considered carefully by recognised experts. Clearly there is a deficit in the process which operates at present and this will or may already have contributed to the selection of inappropriate operators.
Should there be an Appeals Body?
This very much depends upon what policy revisions are implemented on foot of this review of licensing. If significant changes are introduced which eliminate re-licensing in its present form or eliminates the deficiencies identified earlier and by OX, then the necessity for an appeals body would diminish.
However if no significant changes are introduced and given the great level of dissatisfaction surrounding the few changes resulting from the process then it is imperative that an appeals body is established.
At present complainants have the option to seek a judicial review of decisions reached by the Commission. This is quite narrow remedy as the Court will deal with process and procedural issues. They will not deal with the merits or otherwise of the applications.
The appeals body would function by firstly, hearing the complaints from those aggrieved and if they considered these to be valid, order the BCI to review the decision. The Commission would then have to review all the data received in respect of the process, deal with the complaints and issue a decision. Unlike the Courts the body would deal with the merits of each application rather than whether the process followed by the Commission was valid.
6. Enforcement
We believe that the present contractual relations between operators and the BCI together with the powers given to BCI under the relevant acts are quite sufficient to ensure that BCI can effectively regulate the industry.
7. Financial Return and
Administration
Costs of Independent Sector
We do not believe that radio stations should be charged for use of the radio spectrum because unlike telecoms and other users, the service we provide to the public is free to air. Any introduction of such a charge would simply act as a tax as it cannot be passed on to the end user.
Independent radio and TV is the only sector which at present provides a public service remit without asking the public to pay for this service. Every other medium charges the public directly through licence fees or cover charges. The Government should seek to encourage the sector to continue this great service rather than attempting to extract what can only be described as additional taxes. Implementation of additional charges will only result in a deterioration of the service being provided.
Finally, the OX report concluded that the majority of provincial radio franchise areas were fairly small from viability perspective. Thankfully most have survived and flourished and this vibrant industry should not be endangered by the imposition of additional charges.
8. Digital Radio
Our understanding is the forum set up in 2001 is not functioning and that there are no operators broadcasting on a digital platform. According there seems little interest from operators for the service.
If the government wish to establish DAB in Ireland a broadcasting plan needs to be drawn up to facilitate existing operators migrate to the service. Presumably this is a function for ComReg. Once this is satisfactorily completed proposals for migration can be considered