Neil Bierbaum
The Independent Broadcasting Authority is making another attempt to regulate satellite broadcasting. Such control may be exercised by imposing restrictions on advertisers and other suppliers to the industry. But prospective local satellite broadcasters believe that these regulatory attempts may weaken their hand as they try to compete with international players.
The IBA intends holding a public inquiry “as soon as possible” to determine the “nature and form which the regulation of satellite TV broadcasting should take”. Some of the issues to be raised include: possible restrictions on advertising; local content requirements; the payment of licence fees by satellite broadcasters; technical standards; and ownership and control of satellite broadcasters. Legislation with regard to “foreign and unlicensed broadcasters” would also be looked at.
This is the second attempt by the IBA to regulate satellite broadcasting. The first attempt came in the form of a reference to “space stations”, which it tried to have inserted into the Act when various amendments were made in July.
Its problem to date has been whether the Act gives it jurisdiction over the frequencies used by satellite broadcasters. These are by definition telecommunications frequencies and the IBA has been discussing with the postmaster-general whether they can be brought under the IBA’s jurisdiction if they are used for broadcasting.
The IBA now seems to be of the opinion that the Act gives the IBA the mandate to regulate all broadcasting activities in South Africa in the public interest.
A position statement said: “It is worth noting that no distinction is made between terrestrial and satellite broadcasting. The provision of a broadcasting service by any means without a licence from the IBA is a contravention of the Act.”
The IBA believes that unregulated satellite broadcasting could threaten its objective that broadcasting services, viewed collectively, should “develop and protect a national and regional identity, culture and character”. But some commentators believe it should concentrate on the task at hand — the allocation of scarce terrestrial frequencies — rather than playing political philosophers.
According to Glen Marques, head of the IBA legal department, such legislation has not been requested by anybody. He sees it as simply the next step along the way for the IBA policy department.
“The IBA seems to be taking the position that satellite is covered by the Act,” says Lauren Jacobson of Jacobson, Rosin & Wright. “I think it’s more of a practical issue: is regulation really in the public interest?”
She points out that in other countries such as the UK it has been deemed to be in the public interest and it has been regulated. “There is the conventional wisdom that satellite can’t be regulated, but if there is a will and if it is desirous, then it is possible.”
One means of control that the IBA could exercise is to make it a criminal offence to broadcast by any means without a licence. Any person assisting in this broadcast through advertising or other means, even if it came from another country, could then be charged with assisting in a criminal offence. This could include advertisers or any other suppliers to the industry, according to Marques. He points out that “even Murdoch is talking to regulators in other
Yet Jonathan Procter, MD of Retcorp International, a prospective satellite broadcaster, believes that this market should not be compared with the UK, where there was a well-established terrestrial broadcasting network before the advent of satellite TV. He believes this market is better compared with China and eastern Europe, where satellite TV was superimposed on countries which had little or no infrastructure.
He points to the Chinese experience, where government restrictions on satellite broadcasters weakened the hand of local players against the onslaught of Murdoch and Ted Turner, who now dominate that market. “You can regulate satellite broadcasters from the inside, but not from the outside,” says Procter. “If the international players see the South African boys having to subject themselves to legislation, they will roll out very fast.”
Mark Grey, MD of African Satellite Entertainment Corporation (Asec), which is currently broadcasting test signals from Swaziland, concurs: “There is no point if the legislation weakens the position of local broadcasters relative to foreign broadcasters. There is also no point if the regulator has no way of policing or enforcing what it regulates, and the rate at which satellite technology is developing makes it difficult to police.”
But Jock Anderson, MD of Orbicom, the MultiChoice signal distributor, says, “I don’t think it’s their intention to weaken the hand of local players. It’s a case of working together. The IBA clearly wants to be part of the process.”
Procter adds that the legislation would be ex-post- facto, since MultiChoice is already broadcasting and there are an estimated 60 000 dishes already installed. “It would help MultiChoice further,” says Procter, who adds that the IBA is trying to protect “terrestrial broadcasters who do not yet exist”.
In the end, it appears, compliance may be driven more by political expediency on the part of broadcasters than any real power on the part of the IBA.