Media Development and Diversity Agency Bill: finalisation

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Communications and Digital Technologies

18 March 2002
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Meeting Summary

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Meeting report

PORTFOLIO COMMITTEE ON COMMUNICATIONS


18 March 2002
MEDIA DEVELOPMENT AND DIVERSITY AGENCY BILL: FINALISATION

Chairperson : Mr N Kekana

Relevant Documents

 

Media Development and Diversity Agency Bill [B2-2002]
Summary of Amendments [Document A]
Democratic Party Amendments [document awaited]
African National Congress Amendments [Appendix A]

SUMMARY
The Summary of Amendments was discussed by the committee, and the following issues arose from the discussion on its proposed amendments:
- Clauses 2, 6, 9, 10, 11, 15-17, 19-20: these amendments were agreed to.
- Clauses 7, 13-14 and the schedule: these were agreed to, generally.
- Clause 1: the definition of "regulation" is to be deleted; and
: the amendments were agreed to.
- Clause 3: possible conflict between the functions of ICASA and the Agency;
: "diminished language" discussed;
: proposed amendment by the DP was rejected; and
: Document A amendments, as amended, were agreed to.
- Clauses 4 and 5: focal point was the involvement of government and GCIS;
: definition of "public servant" discussed;
: Options 1-5 in Document A rejected;
: DP proposed amendments rejected; and
: ANC amendments accepted. :
- Clause 18: DP amendments rejected; and
: amendments agreed to.
- Clause 21: involvement of government in Agency discussed;
: DP amendments rejected; and
: amendments in Document A, as amended, agreed to

The Bill was passed by the Portfolio Committee as amended..

MINUTES
The Committee went through a clause-by-clause analysis of the proposed amendments, as contained in the document entitled "Summary of Amendments":

Clause 1 : Definitions
Amendments 1-10
The Chair noted that these were agreed to.

"Regulation"
The Chair suggested that this definition has to be deleted. Members agreed to this deletion.

The Chair noted that members agreed to the proposed amendments in Clause 1.

Clause 2 : Establishment of Agency
Amendments 1-6
The Chair noted that all proposed amendments were agreed to by members.

Clause 3 : Objective of Agency
Ms D Smuts (DP) recommended that the phrase "in the community and small commercial media sector in terms of Section 192 of the Constitution" should be inserted after "throughout the country" in the proposed formulation of Clause 3, as it was fundamental to the constitutionality of the Bill.

Mr Pagadi (ANC) stated that this definition restricts the functions of the Agency, and this goes against the spirit and objective of "diversity" permeating the Bill.

Mr J Dowry (NNP) had no material problem with Ms Smuts proposal but was of the opinion that Document A already accommodates her concerns, and is thus sufficiently protecting the interests of the community.

Ms Smuts stated that it is the constitutionally delegated duty of the Independent Communication Authority of South Africa (ICASA) to make regulations regarding the media that are broadly in the public interest, and to ensure a diversity of views broadly representative of South African society. This Committee cannot grant such power to make such regulations to a body other than ICASA as this would allow the Agency to encroach upon functions which fall within the exclusive jurisdiction of ICASA.

Furthermore, it would be unfair and unrealistic to expect the commercial print and broadcast media sectors to fully finance the inquiries prescribed by the Bill themselves. In fact, they should only be expected to assist the small community and commercial newspapers and radio and television stations.

The Chair contended that the primary issue here is whether the functions of the Agency can be restricted or expanded in this manner.

Mr R Pieterse (ANC) stated that the objectives of the Agency are to promote development and diversity of the South African media generally and this is a distinct responsibility from that placed upon ICASA, as the Constitution creates institutions like ICASA which is different from the Agency. Yet both these institutions have been mandated to ensure these objectives are met, and therefore the concerns raised by Ms Smuts are already adequately accommodated in these pieces of legislation.

The Chair contended that the reference made to "ensur[ing] fairness and a diversity of views" in Section 192 of the Constitution deals with editorial content primarily, whereas Clause 5 of the Bill does not. Furthermore, the Preamble of the Bill provides that the Agency has to "promote media development and diversity", whereas Section 192 provides that ICASA must "ensure... diversity". Thus there are distinctions between the functions of the Agency and ICASA.

Mr Pieterse stated that the part (vii) on page 3 of Document A makes it clear that there will be continual liaising between the Agency and ICASA, and this would effectively prevent the Agency from "stepping on the toes" of ICASA.

The Chair suggested that the objectives of the Bill have to be structured in such a way that it is made clear that the Agency and ICASA are two separate bodies, and the former cannot in any way encroach upon the functions of the latter.

Ms Smuts contended that the use of merely "liaise" in part (vii) is insufficient because the Agency has to be subordinate to ICASA. Furthermore, the legislature has to stop creating "parallel statutes" like Section 2 of the Independent Broadcasting Authority Act (IBA Act) and the Broadcasting Act.

Mr A Maziya (ANC) stated that the ANC rejects the proposals made by Ms Smuts. It is instead recommended that the proposal made by the National Community Radio Forum (NCRF) regarding investment channeling be enacted here via a provision declaring "encourage the channeling of resources into the community media and small commercial media sector". This new provision would fall under part (iii) on page 3 of Document A.

It was further suggested that the use of "liaise" under part (vii) adequately covers Ms Smuts' concern, and any reference to Section 192 here is irrelevant.

The Chair stated that the only area in which Ms Smuts' proposals conflict with that of Mr Maziya and the ANC is the beginning of Clause 3 on page 2 of Document A and, to a lesser extent, part (vii). He requested the state law adviser to clarify the precise meaning of the terms "encourage", "promote" and "ensure".

Mr Netshitombani replied that it is merely a question of language, as they all mean the same, essentially.

The Chair suggested that only part (i) on page 3 of Document A overlaps with the objectives of the IBA Act, as the rest of the Roman numerals remain distinct. This distinction is further compounded by the fact that ICASA, the IBA Act and the Broadcasting Act all refer to licencing procedures and requirements, whereas the Agency cannot deal with licencing at all.

Ms Smuts stated that the Bill has to expressly state that the Agency has to support ICASA in achieving its objectives.

Mr Maziya again referred to the NCRF proposal and stated that it would give effect to the primary work and functions of the Agency, and this also implies that the finances would be protected as part of a long-standing process.

The Chair noted that "it is clear that members will not agree on this". Ms Smuts' amendments were put to a vote, but they were not accepted by a majority of the members.

Mr Maziya called for the proposed NCRF amendment to be inserted under part (iii) on page 3 of Document A.

The Chair inquired as to the distinction, if any, between "investment" and "channeling of resources".

Mr Maziya replied that "channeling of resources" implies a once-off deal, and the results or profits yielded by the investment is not checked up on. The term "investment" on the other hand refers to a continual process of checking on the growth of the investment.

The Chair questioned whether it is favourable and desirable to invest in the "community media sector".

Mr Maziya responded that the reference to "investment" here has to be altered to "channeling of resources".

The Chair stated that this matter has to be left to the board to decide upon, and the insertion of the "NCRF proposal" as suggested by Mr Maziya must also be effected. Furthermore, "Icasa" in part (vii) should read "ICASA". The state law adviser agreed.

Mr Maziya suggested that ICASA be written in full, as it appears nowhere else in the Bill other than part (vii). The Chair agreed.

The Chair referred to the phrase "diminished language" in part (i) on page 3 of Document A, and noted that Section 6 of the Constitution expressly states that the status of "minority languages" such as Khoi, Nama and San have to be protected and improved. The state law adviser was requested to clarify the meaning of the term "historically diminished language", as the Constitution itself only states "diminished" languages.

Mr Netshitombani replied that "he would get back [to the Chair] on this".

Dr S C Cwele (ANC) contended that "diminished" means that the status of those languages has been lowered or diminished, and therefore includes all indigenous languages.

The Chair requested feedback from the state law adviser on this matter, and suggested that "historically diminished indigenous language" would clarify matters.

The Chair noted that Clause 3 of Document A, and Document A as amended during this discussion, was agreed to by members. It was noted that the Democratic Party opposes Clause 3.

Clause 4 : Constitution of Board and Clause 5 : Nomination and appointment of members
Ms Smuts suggested that the original formulation of the clauses as contained in the tabled Bill, should be retained. Yet the reference made to the Government Information and Communication Services (GCIS) should be deleted from this Bill, and instead "the Public Broadcaster" should be adopted.

Mr Maziya suggested that the clause should instead read that "the Board shall consist of nine members, with three appointed by the Minister and six by the portfolio committee".

Dr Cwele added that the three members to be appointed by the President should consist of two from the print or broadcast media sector, and the other has to be appointed on the advice of the Minister.

The Chair requested members to propose actual formulations and not general suggestions.

Mr Dowry informed the committee of "the major problem" with the inclusion of GCIS on the board, as this would severely compromise media freedom. It was initially felt that Option 4 was the solution to this concern, but a closer examination of that provision revealed that it too allows GCIS representivity on the board. The South African government cannot be allowed to interfere in the media and it is therefore suggested that nine members should be appointed via a public process, and these would then be submitted to the President to make the appointments.

Ms S Vos (IFP) agreed that GCIS should not be represented on the board, and suggested that the appointments should be recommended by this committee and then handed over to Parliament for final appointment. The standard appointment procedure should then follow.

Mr S Abram (UDM) suggested that all nine members be appointed by this committee, with at least three being chosen from the commercial, broadcast and community media sectors.

The Chair reiterated that concrete formulations are needed here, but noted that consensus is at least being reached on six members to be appointed via the public process. It now has to be decided who will appoint the remaining three members, and from which sectors they are to be drawn.

Mr Pagadi stated that it is this matter that is most problematic for this committee because such a wide variety of areas has been presented from which only three can be chosen. It is thus suggested that the provision be amended to read that six members are to be appointed via the public process, and the President has to at least consider those from the print, broadcast and community media sector. It would then be the role of this committee to assist the President to make the final decision.

Ms Smuts suggested that this matter has to be taken to a vote, as it seems members would never reach agreement.

The Chair responded that a vote should not be too hastily employed, and reminded members that the objectives of this Bill are to recognise the partnership between government and donors in this initiative. In fact, this very point was stressed by the latter in submissions, and guaranteed participation in the functioning of the board was requested. Yet the current provisions of the Bill do not effect this partnership, as it leaves the entire appointment process to the discretion of officials and the general public. Thus a provision has to be inserted that the President must "consider the funders in terms of Section 14 [of the Bill]".

Ms Vos inquired whether this meant that three members would be chosen with regard to Section 14.

The Chair answered in the affirmative, and noted that Dr Cwele and Ms Vos agreed with his proposed formulation. Thus eight of the nine members have now been identified, and all that remains is for the final member to be determined.

Ms Smuts contended that government or an official somehow related to government "is not at all suitable for a body like this", and it is undesirable to have a Minister, as a member of the executive, sitting on the board. Ms Vos agreed.

Mr Dowry agreed as well, and stated that this was the position of the NNP from the very beginning. It would be even more regrettable if the Minister responsible for GCIS were to be involved in the functions of the board.

Dr Cwele foresaw no significant problem in having one GCIS or governmental representative on the board, as this one person would not wield sufficient influence to change the views of the remaining eight members of the board. Furthermore, their presence should recognised in the spirit of co-operation and partnership mentioned earlier by the Chair. It cannot be denied that government participation is vital in ensuring effective development within the South African media. An additional check on these appointments would be served by the nomination and appointment processes, which would ensure that ethical and upstanding persons are appointed who would act in the best interests of the Agency.

Mr Abram stated that state intervention is indeed necessary "to remedy the past", and in this regard the Minister of Communications (the Minister) can also rely on the advice or recommendations of the Minister responsible for GCIS in making her final decision. State intervention is needed to recognise and give effect to the will of the people, as mandated in the Preamble of the Bill.

Ms Vos replied that "state intervention" implies the state would serve as a "watchdog" over the functioning of the Agency and its board. This is precisely the problem that has to be vehemently avoided in this Bill, as government may then use its influence to give effect to its own agenda via the Agency. This cannot be allowed.

The Chair approved of the direction in which the discussion was moving, as it established the common viewpoint that, in principle, this Bill has to recognise the partnership between government, industry players and the donors. Members should remember that there is a fourth party to this partnership, the South African public, which has "a large chunk" of six members on the board. The public may not be concerned that two members appointed by Parliament may "shift the balance of the board", but if these two members are responsible for negotiating funding for the board, the addition of a third member would raise public concern. The vital issue here is thus the manner in which this Bill will recognise both the commercial, community and print media involvement as well as the important role to be played by the government in negotiating funding for the Agency.

Mr F Maserumule (ANC) saw no need for these extensive measures to protect the commercial, community and print media sectors, as they have already signed a Memorandum of Understanding with both the South African government and the donors. Surely they would have ensured that their own best interests are sufficiently accommodated and protected in such an agreement, and thus this committee seemed to be engaging in unnecessary measures here.

Ms Smuts informed members that Mr Joel Netshitenze, Chief Executive Officer of GCIS, had stated during the GCIS presentation that GCIS would only nominate an independent person to serve on the board. This assertion cannot be sustained, as a GCIS or governmental functionary or related official cannot be allowed a seat on the board.

The Chair suggested that a better formulation would recognise that GCIS can recommend an appointment which could then be forwarded to the Minister, but such person cannot be a civil servant.

Both Ms Smuts and Ms Vos agreed.

The Chair suggested that such a provision read that "the recommendation can be made by the Minister in charge of GCIS, but this person cannot be a public servant". Furthermore, Clause 6(1)(h) stipulates that civil servants are not only employed by the state, but also hold any other remunerated position under the state. The state law adviser was requested to clarify this matter.

Mr Netshitombani informed members that the terms "public servant" and "civil servant" are used interchangeably.

The Chair contended that Clause 6(1)(h) creates a problem here, in that it creates a distinction between a "public servant" and the "holder of any other remunerated position under the State".

Mr Netshitombani responded that the latter phrase casts too wide an ambit for this provision.

The Chair suggested that only those persons employed by State departments should be excluded in this provision.

Mr Netshitombani replied that the provision has to refer to "any person employed by any government department or in terms of the Public Service Act".

Ms Smuts contended that this implies that Clause 6(1)(h) would have to be amended via a deletion of the phrase ", except a member nominated in terms of section 5(1)(a)(i)".

The Chair asked the state law adviser to provide the definition of "employee" in the Public Service Act.

Mr Netshitombani stated that the definition of "employee" in the Public Service Act excludes officials from the Correctional Services, the National Intelligence Agency, the South African Police Service and educational institutions.

The Chair called for the current Clauses 4 and 5 in the Bill and their proposed amendments in Document A to be deleted, and to be replaced with the new Clause 5: the ANC amendments.

Ms Smuts requested clarity on the use of the phrase "from the... media" in the ANC amendments, as it did not expressly spell out whether these are nominations or representatives from the media, or whether they are "from the ranks of" the media. This has to be made clear.

Mr Netshitombani replied that these could be employed by, or in any other way related to the commercial broadcast media or other media sectors referred to in that provision.

The Chair accepted this submission, and suggested that a provision should also be inserted into the ANC amendments that "the member must, before performing his or her functions, take an oath or affirmation...".

Dr Cwele stated that these amendments mean that Clause 6(1)(h) is no longer relevant here, because the influence of the Minister and the Department of Communications have since been removed. Also, the amendments now provide that the President now makes the appointments himself, and he does not have direct interest in the media. Furthermore, his discretion here is limited to appointing those in consultation with the Minister. The problems with the definition of "public servant" have also been resolved, and the deletion of Clause 6(1)(h) was requested.

Ms Smuts expressed her disappointment at this proposal, as it effectively allows the President to appoint a GCIS official or representative. It should rather read "an employee as defined in the Public Service Act, or a member of the agencies or services defined in that Act".

Dr Cwele acknowledged this proposal, but maintained that the clause should be deleted in the interests of clarity. Furthermore, there is no law prohibiting "public servants" from serving on such bodies.

The Chair called for the matter to be put to a vote, and noted that the majority of members rejected Ms Smuts' proposal. The result was that the entire Clause 6, without Subclause 1(h) is agreed to by members, with Ms Vos and Ms Smuts opposing the deletion.

The Chair noted that members agreed to the amendments, and the revised Clause 5 would now become Clause 4 of the Bill, and Clause 6 in the Bill would become the new Clause 5. The new Clause 6 of the Bill will cover the members' removal and vacation of office.

Clause 6 : Disqualification
Mr Pieterse inquired whether COSATU would be covered under the new Clause 5(d) of Document A.

The Chair reminded him that this matter had been discussed earlier, and COSATU was not covered here.

Dr Cwele called for this entire New Clause 5(h) to be deleted.

The Chair accepted this proposal, but stated that this clause is pending.

The Chair thus called for Lines 52 on page 4 of the Bill to Line 15 on page 5 of the Bill to be deleted, and for the new clauses 5, 6 and 7, on pages 13-15 of Document A, to be inserted in its place. This has to be clearly stated for drafting and printing purposes.

Ms Smuts suggested that the word "when" be inserted after "... vacate his or her office" in the New Clause 6(1) on page 14 of Document A.

Mr Netshitombani responded that "if" has been used instead.

The Chair noted that members agreed to this, the only amendment to the New Clause 6.

Furthermore, the New Clause 7(a) on page 15 of Document A has to be amended as it refers to "section 4" which has now been deleted.

Clause 7 : Term of office of members
Amendment 1
The Chair noted that this amendment is agreed to.

Amendment 2
The Chair suggested that the phrase "a public process" should replace the proposed "the general public".

Dr Cwele inquired whether express reference has to be made to Section 14 of the Bill here.

The Chair noted that this amendment, as amended, is agreed to.

Amendment 3
The Chair noted that this amendment is agreed to.

Clause 9 : Meetings of board
Amendments 1-4
The Chair noted that these amendments are agreed to.

Clause 10 : Conflicting interests
Amendments 1-6
The Chair noted that these amendments are agreed to.

Clause 11 : Staff
Amendment 1
The Chair noted that this amendment is agreed to.

Clause 13 : General functions of the board
Amendments 1-2
The Chair noted that these amendments are agreed to.

Amendment 3
The Chair called for the word "and" to be deleted after "Agency" in line 19 on page 7 of the Bill, and then the proposed Amendment 3 would follow. The amended provision would thus read "ensure that the Agency, its objectives, achievements and activities are made known to the public through marketing; and". This makes the task of the drafters that much easier.

Amendments 4-5
The Chair noted that these amendments are agreed to.

Clause 14 : Finances of Agency
Amendments 1-2
The Chair noted that these amendments are agreed to.

Amendment 3
The Chair informed members that this committee "is not forced by law" to table the Annual Report as now required by the New Clause 14 on page 18 of Document A. This was requested by the Auditor General himself, and this committee will "agree to it anyway.

The Chair noted that this amendment is agreed to.

Clause 15 : Nature of support provided by Agency
Amendments 1 and 2
The Chair noted that these amendments are agreed to.

Clause 16 : Allocation of support
Amendments 1-3
The Chair noted that these amendments are agreed to.

Clause 17 : Special groups
Amendment 1
The Chair noted that this amendment is agreed to.

Clause 18 : Projects
Amendments 1-6
The Chair noted that these amendments are agreed to.

Ms Smuts contended that this clause implies that the board selects projects, whereas Clause 21 of the Bill states that the Minister herself makes regulations in consultation with the board. It was thus recommended that Clause 21 be amended. A further contradiction is caused by the use of "Minister" in Clause 21(1), whereas Clause 21(2) refers to the functions of "the Board" in that regard.

The Chair noted that members agreed that it is the board itself that has to fix the criteria for the allocation of projects, and Clause 18 as amended by Document A was agreed to.

Clause 19 : Evaluation of projects receiving support
Amendment 1
Ms Smuts agreed with this amendment, as it clarifies the original provision in the Bill as to whose "goals" have to be achieved here.

Amendment 2
The Chair noted that this amendment is agreed to.

Clause 20 : Agreements
Amendments 1 and 2
The Chair noted that these amendments are agreed to.

Clause 21 : Regulations
Ms Smuts suggested that the phrase "by the Minister" be inserted after "prescribed" in Clause 21(1) of the Bill. The matters about which the Minister may prescribe regulations fall under Clauses 8, 9 and 14 of the Bill. Furthermore, the word "Board" in Clause 21(2) should be replaced with "Minister".

Dr Cwele requested clarity from the state law adviser as to who exactly makes regulations here.

Mr Netshitombani replied that "anyone could make regulations", provided they are given the requisite authority to do so by Parliament itself. The reason for this power falling to the board in this Bill is that it has become standard legislative practice to grant it to either the board or the Minister.

The Chair stated that this committee could then make a choice here, as it is not dealing with a body such as the ICASA, whose primary responsibility is to make regulations on very important matters regarding the telecommunications industry. Thus this Bill has to afford the Agency as much independence as possible, and at the same time it has to balance the powers of the Minister with that of the board.

Dr Cwele contended that the current clause provides that the Minister may make regulations in consultation with the board, which clearly gives effect to the spirit of co-operation and consultation mentioned earlier.

Ms Smuts replied that the Minister cannot be involved here because this Bill deals with a Section 16 body, and state intervention here is undesirable. Furthermore it is surprising that the ANC has now changed its view from supporting the removal of the Minister's influence here as espoused during previous meetings, to an acceptance of the "vital" role of the Minister in this process. The reference to "consultation" does indeed mean that an agreement has to be reached, and if Clause 18 is not amended the provision would still stipulate that the Minister may make regulations in consultation with the Board. This provision has to be amended so that the Minister passes regulations regarding the administrative functions of the Agency, whereas the board would pass regulations regarding actual operational matters such as funding etc.

The Chair stated that there is a "material difference" between Clause 18 as amended by Document A and Clause 21.

Ms Smuts reiterated the amendments she raised at the beginning of discussions on this clause.

The Chair put the matter to a vote and noted that the majority of members disapproved of these amendments. The result is that they fall away.

He stated that the proposed definition of "regulation" under Clause 1 of the Bill should be removed. The current Clause 21 provides that the remuneration deliberations have to go through the public process before a decision is made. This has to be retained as no other law provides for this procedure. The solution is to remove Clause 21(2) and place it somewhere else.

Mr Netshitombani replied that the Clause 8 determination does not require the passing of regulations.

The Chair agreed, and noted that members agreed to the amendments to Clause 21.

Schedule
The Chair called for the following amendments to be made to the first paragraph of the revised formulation of the schedule in Document A:
- "four of such eight" should be changed to now read "three of such six" ;
- after "members", to insert "appointed through a public process"; and
- the phrase "excluding the chairperson" has to be deleted.

The phrase "eight members, excluding the chairperson" in paragraph 2 has to be replaced with "six members". Furthermore, all the references to "four pieces of paper" in Document A must be changed to "three pieces of paper".

The Chair noted that these amendments were agreed to.

Report
The Chair concluded deliberations on the Bill by declaring, with regard to the Portfolio Committee on Communication Report [B2-2002] :
The Portfolio Committee on Communication, having considered the subject of the Media Development and Diversity Agency Bill [B2-2002], National Assembly section 75 referred to it and classified by the Joint Technical Mechanism as a section 75 Bill, reports the Bill with amendments [B2A-2002], signed by myself on the committee members' behalf on 18 March 2002, has been agreed to by the Portfolio Committee.

The report was moved by Dr Cwele and seconded by Mr Pieterse. The Chair reported that the Media Development and Diversity Agency Bill has been agreed to, as amended.

The Chair concluding proceedings by thanking all involved for the effort invested in processing this Bill. There were no further questions or comments and the meeting was adjourned.

Appendix 1:
ANC Proposed Amendments
Option 5:
4(1) The Board must consist of nine members.
4(a) Six members of the Board must be appointed by the President on the recommendation of the National Assembly, according to the following principles:
a) participation by the public in the nomination process;
b) transparency and openness; and,
c) the publication of a shortlist of candidates for appointment with due regard to subsection (3) and section 6.

4(b) Three members must be appointed by the President, taking into consideration section 14 of the Act, of whom one shall be from the commercial print media and another from the commercial broadcast media.

(2)(a) The President must appoint one of the members as chairperson of the Board
(b) In the absence of the Chairperson the remaining members must from their number elect an acting chairperson, who, while he or she so acts, performs all the functions of the Chairperson.

(3) Members are appointed on a non-executive basis.

(4) Persons appointed to the board must be persons who are-

a) committed to fairness, freedom of expression, openness and accountability on the part of those entrusted with the governance of the public service;
b) when viewed collectively -
(i) are representative of a broad cross section of the population of the Republic; and
(ii) possess suitable qualifications, expertise and experience in fields such as community media; social, labour and development issues; media economics; financial management and funding; advertising and marketing; and journalism and broadcast programming, media research, media training, literacy and education, media law, information and communication technology policy.

 

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