Circular 31/08
Circular to all Broadcasting Stations
Consultation Document: Media Concentration
Media concentration in the Broadcasting Act, Chapter 350 of the Laws of Malta, is currently regulated by article 10(6) which reads as follows:-
(6) (a) No organization, person or company may own, control or be editorially responsible for more than –
(i) one terrestrial or cable, radio broadcasting service; and
(ii) one terrestrial or cable, television broadcasting service; and
(iii) one terrestrial or cable, radio or television broadcasting service devoted exclusively to teleshopping:
Provided that the Government may, through a company designated by the Minister, by notice in the Gazette, as a company providing public broadcasting services, own, control, or be editorially responsible for any number of broadcasting services:
Provided that that the Government may not own any broadcasting services or participate in their ownership other than through such company, and that no other company in which the Government has a controlling interest may own voting shares in a company providing any broadcasting services.
(b) For the purposes of this subarticle the simultaneous transmission of the same broadcasting service by cable and terrestrially shall be considered as one broadcasting service.
(c) For the purposes of a licence for a television broadcasting service, until such time as regulations are made in terms of article 35, the Fourth Schedule to this Act shall mutatis mutandis be applicable also to a television broadcasting service.
Historical Background
Following the enactment of the Broadcasting Act in 1991, it was only possible for a limited liability company to own only one radio or one television station. This provision was amended in 1993 to enable the same company to own both a radio service and a television service. In 2000, the provision was amended again to permit the same company to own one radio service, one television service and one radio or television broadcasting service devoted exclusively to teleshopping.
In so far as the Government is concerned, it empowered the Government – through a company designated as a company providing public broadcasting services – to own, control or be editorially responsible for any number of broadcasting services.
Whilst a limit as to the number of broadcasting stations which could be owned, controlled or editorially responsible for was imposed on the private sector, no such corresponding limit has been imposed on the Government.
The Current Scenario
In so far as the Government is concerned, it owns through Public Broadcasting Services Limited:
TVM
Radju Malta
Radju Parlament / 106.6
Magic Radio.
PBS Ltd. is also editorially responsible for Education 22.
In so far as the private sector is concerned, there are only 3 companies which own more than one broadcasting service. These are:
MediaLink Communications Limited – Radio 101 and Net TV
One Productions Limited – Super One Radio and One TV
Smash Communications Limited – Smash Radio and Smash Television.
Other companies own either one radio service or one television service or one television teleshopping service.
One must also bear in mind that both the cable operator and the digital terrestrial television operator are also licensed as broadcasters and have locally originating television stations.
The Rationale of Media Concentration
Media concentration takes place when one media organization commands a large portion of a particular medium such that there may be a concern of development of an editorial concentration within that medium to the extent that the end result would be only one view or opinion propounded by that medium thereby suffocating freedom of expression and aborting diverse views or opinions. What is sought to be avoided is the possibility of permitting media organizations to be in a dominant position in the market as this brings about a potential abuse of power.
The New Media Landscape
Article 10(6) of the Broadcasting Act was conceived at a time when media was not yet convergent, where frequencies were a scarce resource and where there was only one dominant medium – the broadcasting medium. With advancements in technology this scenario has changed. Frequencies in the digital era have multiplied to such an extent that from one analogue frequency it is possible to broadcast between six to eight digital television stations and up to 12 digital radio stations. Not only so but technology is developing to such an extent that on the digital radio platform it is possible to accommodate up to 40 digital radio stations per frequency. Apart from digital radio and digital television which allow compression of bandwidth to permit a greater number of radio and television services, other media have emerged which carry broadcasting services. Such is the case with the internet where, it is anticipated, that Internet Protocol will develop at a fast rate in the very near future offering radio and television services on the internet; mobile radio and mobile television whereby it is possible to hear radio services and watch television programmes on a mobile phone. This apart from other media which provide audiovisual content such as video-on-demand and pay-per-view. Satellite radio and satellite television is also another distributor of radio and television services in addition to analogue, digital and cable platforms.
Reviewing the Currently Obtaining Provision
In the light of the recent technological development and those which are anticipated, the end result will be a multiplicity of radio and television services which, because of their numerical abundance, have made the current legal regime anachronistic. Suffice it to say, for instance, that there are already 6,000 internet radios available only on one medium. This notwithstanding, it must be acknowledged that the time has not yet come to remove entirely media concentration provisions for these are still relevant in a democratic society which respects freedom of expression as a fundamental freedom enjoyed in Malta through the Constitution of Malta, the European Convention of Human Rights and Fundamental Freedoms and the Broadcasting Act.
Media Concentration in the 21st Century: A New Dimension
Various countries have moved from the old model – that of having media concentration rules on their statute book – to the new model which has removed such restrictions thereby leaving it up to competition law to regulate such matters. Such is the case of the Czech Republic, Denmark, Finland, Lithuania, Spain and the United Kingdom. What is being suggested here, however, is to retain the extant media concentration rules in article 10(6) aforesaid of the Broadcasting Act but updating them to present day needs in order to encourage take-up over different transmission platforms. What is being proposed is as follows:
(a) in so far as generalist radio and television stations are concerned the rules should for the time being remain the same as they currently obtain as explained above; and
(b) in so far as specialist radio and television stations are concerned the rules should be changed to permit one company to own, control or be editorially responsible for up to six radio and three television channels only when these are niche stations. As niche stations, they will be considered to be commercial stations. This would apply in the case of satellite radio and television; cable radio and television; digital radio and television; digital terrestrial radio and television; and mobile radio and mobile television. These rules apply only to locally originating channels and not to retransmitted channels. However, the expression “niche stations” should not be interpreted to include the following programme genres: news bulletins, current affairs and discussion programmes: these programmes should continue to be considered as falling within the ambit of generalist stations’ programme schedules.
Finally, it is to be borne in mind that Government, in the transposition of the new Audiovisual Media Services Directive, might need to revisit this provision in so far as non-linear services are concerned.
Proposed amendment to Article 10 of the Broadcasting Act
It is being proposed that Article 10 of the Broadcasting Act be substituted by the following:
“(6) (a) No organization, person or company other than the Government may own, control or be editorially responsible for more than –
(i) one terrestrial or cable, radio broadcasting service; and
(ii) one terrestrial or cable, television broadcasting service; and
(iii) one terrestrial or cable, radio or television broadcasting service devoted exclusively to teleshopping:
(b) The Government may, through a company designated by the Minister, by notice in the Gazette, as a company providing public broadcasting services, own, control, or be editorially responsible for any number of broadcasting services:
Provided that that the Government may not own any broadcasting services or participate in their ownership other than through such company, and that no other company in which the Government has a controlling interest may own voting shares in a company providing any broadcasting services.
(c) For the purposes of this subarticle the simultaneous transmission of the same broadcasting service over different transmission platforms shall be considered as one broadcasting service.
(d) For the purposes of a licence for a television broadcasting service, until such time as regulations are made in terms of article 16B, the Fourth Schedule to this Act shall mutatis mutandis be applicable also to a television broadcasting service.
(e) Notwithstanding the provisions of the foregoing paragraphs, it shall be possible for the same organization, person or company, including the Government through the company mentioned in paragraph (b) above, to own, control or be editorially responsible for more than one terrestrial or cable radio broadcasting service and one terrestrial or cable television broadcasting service where such services are not generalist stations but niche channels. In such case, it shall be possible for the same organization, person, company, including the Government through the company mentioned in paragraph (b) above, to own, control or be editorially responsible for:
(a) up to six niche radio broadcasting services; or
(b) up to three niche television broadcasting services; or
(c) up to six niche radio broadcasting services and three niche television broadcasting services:
Provided that for the purposes of this article, the expression “niche” in relation to radio and television broadcasting shall not include the following programme genres: news bulletins, current affairs programmes and discussion programmes, and other programmes which might include elements of news bulletins, current affairs programmes and discussion programmes.”
Consequential amendments will have to be made to the Digital Radio Broadcasting Regulations, 2007 to be brought in line with the above proposed amendment to the Broadcasting Act.
Feedback
Feedback to this Consultation Document should be addressed as follows:
Dr Kevin Aquilina
Chief Executive
Broadcasting Authority
7 Mile End Road
Hamrun HMR 1719
e-mail ambuhagiar@ba-malta.org
by not later than Thursday, 31st July 2008.
Dr Kevin Aquilina 30th June 2008
Chief Executive Ref 51/61
Broadcasting Authority