Introduction

This is the fourth in a series of two weekly reports from the FXI (South Africa). This report covers the period between July 28 and August 08, 1997. This report was prepared by Mr Ike Hloka with financial assistance  from the European Union Foundation for Human Rights in South Africa. The views expressed herein do not necessarily represent the official view of the European Union Foundation for Human Rights in South Africa.

This report look at the scope and implications of the policy framework process on broadcasting launched by the Minister of Posts, Telecommunications and Broadcasting, Mr Jay Naidoo, on  4 August 1997.
 
 

New era Looming for Broadcasting?

 

Background

The Minister of Posts, Telecommunications and Broadcasting, Mr Jay Nardoo, has launched the long awaited policy framework process on broadcasting. Earlier this year, the South African Broadcasting Corporation complained that regulation was being done on "piece-meal"basis and further called on the government to come up with a broadcasting policy to end uncertainty in the industry. The SABC made  this call after the Independent Broadcasting Authority(IBA)  decided to amend pay TV M-Net’s licence conditions, a move the SABC said the IBA was not legally empowered to make.

According to the broadcasting policy manager in the Telecommunications and Broadcasting Ministry, there are a number of laws governing the broadcasting industry in South Africa. These laws included the Radio Act of 1952, the Post Office Act of 1958 amended in 1993, Broadcasting Amendment Act of 1982, the Former State Broadcasting Reorganisation Act of 1996, the Independent Broadcasting Act of 1995, and the Broadcasting Act of 1997. Some of these laws were outdated, like the Radio Act of 1952, the Broadcasting Amendment Act of 1982, and the  Post Office Act of 1958, while others did not provide a framework to deal with certain policy issues.

Issues such as funding for the public broadcaster and the privatisation of  parts of the public broadcasting body were not covered by any policy framework. The latter issue came to light in the course of the sale of six SABC radio stations last year when the government refused to give the money from the sales to the SABC. The new policy  will have to deal with this issue also.
Technological developments, especially the convergence of technologies between broadcasting and telecommunications, demanded a policy framework that would guide the relationship between these two sectors. Without a policy guideline on these matters there might be conflicts over turf. There were also other technological advances in broadcasting such as satellite, cable, and Internet broadcasting which, if not dealt with in a formal policy, might lead to anarchy in the broadcasting industry.

The process was initiated because while there was regulation of the broadcasting industry, there was no national policy framework. This meant  that most of the decisions on broadcasting, except those relating to regulation of the industry, were being made without  clear policy guidelines.
 

Process issues

The process will be steered by two bodies: a stakeholders’ committee and a technical task team of experts.

The technical task team will include experts from countries such as Australia, Germany, Canada as well as representatives from the International Telecommunications Union. The technical task team will be made up of people of diverse backgrounds such as legal experts, engineers, and others. The reason for enlisting the services of foreign experts, argued source in the ministry of Telecommunications and Broadcasting, was that while there are people with expertise when it comes to broadcasting issues, there is still a serious lack of technical expertise in broadcasting in South Africa. Another reason  is that the foreign experts will be from countries that already have passed the transitional stage and a lot can be learnt from their experiences. It is not clear yet what the brief of this  task team will be but it is expected that it will work with existing structures such as Universal Service Agency whose role is to raise public awareness of the role of telecommunications in development and advise minister Naidoo on ways to bring universal access to information and service to all South Africans.
 
The stakeholders’ committee will be made up of the department of Communications, the South African Telecommunications Regulatory Authority(SATRA), the IBA, trade unions in the media  and broadcasting industries, interested civil society organisations, academia, advertising companies, broadcasting equipment manufacturers, community broadcasters,  and the Development Bank of Southern Africa(DBSA). This committee will be chaired by the University of the North vice-chancellor, Professor Njabulo Ndebele. The main role of the committee will be to provide the minister with sectoral advice on some aspects of broadcasting throughout the policy formulation process.
 
 

Implications for the merger between the IBA and SATRA

The merger between these two bodies has been approved by the Cabinet and a committee has been set up to oversee the process. Minister Naidoo confirmed that the new policy process will not affect the merger, which should go ahead as planned. However, there is still no clarity on the implications of the merger, particularly how it will affect the independence of the IBA. Hopefully the new policy process will deal with this fully.

A welcome feature  of the new process is that it seeks a three tier relationship in broadcasting with government responsible for policy and regulation being the responsibility of an independent body, such as the IBA. The final tier will be the licensees, who must comply with government’s policy and regulations as enforced by the regulatory bodies, IBA and SATRA. However with the merger of the two bodies there remains the concern that currently the IBA Act provides for limited co-operation between the IBA and SATRA in the management of the frequency spectrum, including the broadcasting services frequency bands. The cooperation would also extend to the determination of which frequency spectrum should be used for broadcasting. Glen Marques, executive director of the National Association of Broadcasters, argued earlier this year that they needed guarantees that the merged regulator would "be a properly independent body"(Business Day, 19 February ‘97). Despite these concerns Marques said the merger made sense since it would provide opportunities to rationalise the infrastructure. Broadcasting industry sources said the merger would be in line with a greater convergence between broadcasting, telecommunications and information technology.
 

THE SCOPE OF THE NEW PROCESS

As a first step it is expected that a Green paper is going to be produced and  presented to the Cabinet in October this year(1997), to be followed by a white paper in January next year(1998) and a new broadcast bill by the middle of the year. At the launching of the process, minister Naidoo said the aim of the process was to create a coherent framework within which to define public, private and commercial broadcasting. This would involve a review of existing laws and the eventual enactment of new laws.

The process would also look at foreign participation and black empowerment in ownership of the  broadcasting media. The issue of media ownership in South Africa is a very important issue because by diversifying media ownership there is a potential to increase the reflection of the  views of a wider society in the media. The IBA Act deal with the issue of media ownership in the broadcasting industry and the specific impact of the envisaged policy on the IBA’s role is not yet clear.

The media in South Africa is largely in the hands of  whites despite recent acquisitions of shares  by black owned commercial groups. The tension arising from this issue was highlighted when President Nelson Mandela accused the media of being run by embittered conservative whites. In broadcasting, the issue with respect to foreign ownership was highlighted by the controversy surrounding the granting of the Radio Jacaranda  licence to Newshelf 71 late last year. Naledi Investment Consortium which also made  bid for the licence, successfully  took the IBA to court. Among its argument was that Newshelf 71 is partly owned by a foreign company, Europe Development International(EDI), which had a 21% equity in it. EDI also had shares in Primedia, which controls a number of commercial radio stations in the country two of which are in Gauteng. Therefore they argued that by granting Newshelf 71 a licence it would have given EDI more than a 20% share in the broadcasting industry in contravention of the IBA Act which stipulate that one or more foreign persons shall not, whether directly or indirectly exercise control over a private broadcasting licensee exceeding 20% in total. Newshelf 71 and Naledi had since joined ranks and are now co-owners of Radio Jacaranda.

The new policy will also focus on the establishment of human resources development, school of journalism and the promotion of journalism in fields such as investigative journalism and technology reporting. It will also look at competition in the signal distribution sector, a policy for satellite, terrestrial and Internet communication as well as the effects of competition on the public broadcaster. How this is going to be dealt with, however, is  not clear. Will it  mean that the government is going to protect the public broadcaster from competition? The SABC is currently involved in a dispute with the IBA over its interim decision to amend pay TV M-Net’s licence. The SABC is arguing that  the IBA Act does not empower the regulatory body  to amend M-Net licence conditions. Firstly, the SABC is arguing that the IBA does not have the jurisdiction to amend  M-Net’s licence. The SABC further contends  that the IBA as regulator cannot amend M-Net licence conditions because it can only do so to ensure "fair competition" between licensees. Since M-Net is the only private television broadcaster, the SABC is arguing that there can be no fair competition if its licence conditions are amended, especially in the light of the fact that a free-to-air television station will be licenced very soon. On the other hand it is believed by industry sources that M-Net is not all that happy to have its  licence amended. The reason being that M-Net does not want the origins of its licence, mired in the corrupt apartheid political patronage of 13 years ago, to become part of the public debate. Section 52 of the IBA Act does not expressly prevent the IBA from amending M-Net licence conditions.

The Independent Producers Organisation(IPO) came out  in support of the SABC’s objections to the IBA’s actions and further argued that M-Net should be forced to sell off its second channel, the Community Service Network(CSN), because the Act proclaims: "one station, one licence"(Mail&Guardian,08-14 August 1997, p10). It is not clear whether it is legally possible to force the M-Net to sell off its second channel.

The Minister acknowledged that the new process would lead to the amendment of the IBA Act because this Act  was born out of political compromises at the multiparty negotiations before the elections and  a new broadcasting policy would need a new Act. There would also be a look at a new legislation on broadcasting standards and the development and promotion of local content. Issues  of language and local content programming have been on the spotlight for some time now but section 53(1) of the IBA Act make provision for broadcasters to broadcast local music and locally produced material.

The new policy process is important in a number of ways. Firstly, it looks set to deal with all issues on broadcasting. Secondly, central to this process is the important issue of consultation which will ensure that all stakeholders have a say in the final policy. And finally the issue of community media and the government’s support for this sector is going to be dealt with. The policy is also going to look at the issue of human resources and capacity building in the broadcasting industry. If anything, the policy presents  credible commitment for completing the process started in the early 1990's to transform the broadcasting industry in South Africa.