Broadcasting Bill: public hearings

Meeting report

COMMUNICATIONS PORTFOLIO COMMITTEE
11 September 1998
BROADCASTING BILL [B94-98]: HEARINGS

Documents handed out
NASPERS submissionon the Broadcasting Bill (Appendix 1)
COSATU submission on the Broadcasting Bill (Appendix 2)
Task Group for Empowerment of Afrikaans Users on Television (Appendix 3)
South African Catholic Bishop’s Conference (Appendix 4)
Independent Forum for Religious Broadcasting (Appendix 5)

SUMMARY
Submissions were made by Naspers, Christian and Afrikaans language groupings and COSATU.

DETAILED MINUTES
NASPERS
Presentation by the Head of Strategic Planning, Mr Sibiya of City Press, Jan Malherbe, Koos Bekker, MD of Nasper

The submission proposed the deletion of section 50 from the IBA Act. Media group projects have been the most significant to date with regard to black empowerment. The government should not destroy its pay-TV industry and jobs by trying to regulate the industry. Restrictions on local firms will disadvantage them in relation to international competitors. Cross media restrictions hamper black empowerment. Section 50 rests upon obsolete assumptions. It should be removed or restricted to news channels.

Questions by committee members:
Mr Kekana (ANC) asked what workable solutions have been found in Europe regarding cross media limitation.

Mr Bekker (NASPERS) responded that Europe used to have restrictions on telecoms and to a less er degree on newspapers, but these have converged in the internet industry. While monopolies must be regulated, convensus emerging in Europe is that other restrictions should go. Thematic channels with non-news content should be freed up in South Africa.

Mr Kekana asked whether the legislators should not wait for more information from an IBA inquiry? Mr Bekker responded that this inquiry has happened. Special powers on the granting licences by IBA invite corruption.

Mr de Klerk from the Department of Communications said that the intention of the Bill is not to create restrictions, but to create opportunities, diversity, plurality of voices, and greater choice to the public. That is why cross-media ownership is limited. The SA environment is not yet the same as the USA and Europe. Plurality is necessary in all content, not just news.

Mr Ebrahim (PAC) commented that influence is not exerted only through the news, but through advertising on all channels.

Mr Marsh (ANC) wanted to know whether NASPERS sees a need for industry-specific regulations?

Ms Smuts (DP) said that there is disjuncture between share of voice and share of audience. For example very few people read the newspaper, therefore it does not make sense to stop newspaper interests from starting, for example, radio stations.

Mr Bekker said that the competition law allows the state to restrict one group from gaining dominance in a particular field – industry regulations should be limited to news where essential.

Mr Malherbe (NASPER) said that, in his opinion, restrictions are especially strict in South Africa with foreign competitors flooding into South Africa. Section 50 must urgently be reconsidered.

Mr de Klerk said the while newspaper readership is very low, its readers are the leaders and opinion makers of society.

Ms Vos (IFP) said that the political implications of these laws must be considered.

Mr Beesham (NP) wanted to know whether the influence of localised newspapers is not greater than that of the national papers.

Mr Kekana (ANC) stated that these small papers are owned by the big groups. Section 50 should be revised, considering the new situation, but not scrapped. It is important that new entrants (who are not emerging strongly) have access, and consumers must have choice in all spheres, not only with news. Perhaps the committee should wait for the debate to settle around the Competition Bill, so that a balance can be created with sector–specific regulations.

Mr Bekker said that restrictions are not even-handed. They are placed on commercial groups but not the SABC. The competition law is sufficient, while section 50 is ineffective to restrict concentration and can be scrapped without effect.

Chairperson Moeti (ANC) said that there had been the allegation that the Broadcasting Bill will be used by the IBA to shut down religious stations. The members of the committee agreed that clarification should have been sought before allegations were made. The media should not sensationalise.

Association of Christian Broadcasters

They are concerned with the abolition of community of interest. In Australia and Europe the number of community of interest stations is growing. If every station must please the whole community, there will be duplication of service, competition and stations will not survive financially and will not be able to provide meaningful service to all in community.

 

With regard to the accommodation of religion in the Broadcasting Bill, the Bill makes no reference to religion, although the Preamble to the Constitution identifies South Africa as a religious country.

With regard to national advertising, there should be no limitations on advertising for community radio stations and any surpluses raised should be ploughed back into the community.

Submissions were also heard from Independent Forum for Religious Broadcasting, the Southern African Catholic Bishop’s Conference.

The Task Group for Empowerment of Afrikaans Users on Television was concerned that the Broadcasting Bill centralises control and regulation of the broadcasters. In practice languages other than English are not being empowered on SABC TV.

A submission was also heard from COSATU and the Communication Workers Union (CWU).

Appendix 1: NAPSERS

NASPERS

Comment of Naspers Ltd on the Broadcasting Bill, 1998

Submitted to the Portfolio Committee on Communications

11 September 1998

PART I: SUMMARY

This presentation focuses on the issue of cross-media restrictions.

It is submitted that, for the reasons stated below, Section 50 of the Independent Broadcasting Act, 1993 should be deleted. Alternatively, it should be amended by limiting its application to terrestrial free-to-air broadcasters who disseminate news and consequently influence the formation of political opinion in South Africa:

THE MOTIVATION:

A. The reasons for having introduced "cross-media control" regulations in the first instance have largely disappeared; in any event, the modern trend is away from controlling "cross-media ownership".

B. In most markets in the world, newspapers have been declining in circulation and influence. In order to survive, they need to invest in more modern electronic means of distribution and have in fact done so.

C. The forthcoming Competition Act, which is currently the subject of extensive debate and consultation, is the appropriate vehicle through which the issue of monopolies and concentration should be regulated.

D. A limitation of spectrum availability has disappeared as an inhibiting factor in the era of digital and satellite broadcasting.

E. Shareholding by the printed media in thematic subscription TV channels that do not carry news has no bearing on the debate regarding diversity of information.

F. Section 50 places the local printing and publishing industry at a disadvantage in competing with multi-nationals who are already entering our broadcasting market.

PART II: COMMENTARY

A. REASONS FOR THE EXISTING SECTION 50 HAVE DISAPPEARED: THE MODERN TREND

A1. In the white paper on broadcasting policy, it appears that the regulation of cross-media control derived from Section 501 of the IBA Act. The historical roots for the limitations on cross-media ownership are in the USA experience when, due to frequency limitations, only three national television channels2 were licensed, all of which broadcast news. The political influence exercised by these networks was considerable and created a risk that if, in a particular city, the major newspaper were to tie up with the leading TV station, the single entity could exert undue influence on the local political debate.

A2. These considerations have since been overtaken by technological and political developments. The disappearance of spectrum limitation has led to a proliferation of specialist broadcasters in America and elsewhere: thematic channels were created on cable, on satellite and now on Internet, greatly multiplying sources of news and entertainment.

In South Africa, when the IBA Act was formulated in 1993, the authorities were then faced by a different media landscape than exists today. Media diversity was of concern; the public broadcaster and major components of the printed media were controlled by fewer owners than today. That situation has since changed dramatically, and is evolving further. New groupings have emerged in the printing and publishing media, and the public broadcaster has become independent. To illustrate the above:

A2.1 In 1993 the newspaper sector was in effect dominated by three newspaper groups, i.e. Anglo American (which controlled Times Media Limited and the Argus Group), Nasionale Pers and Perskor.

A2.2 In 1998 there are the following major newspaper groups:

· Omni /Johnnic (publishers of Business Day, Sunday Times and newspapers in Port Elizabeth and East London)

· Independent Newspapers (publishers of various daily and Sunday papers)

· Nail (publishers of the Sowetan and imminently the Sunday World)

· Naspers (publishers of newspapers in Afrikaans)

· Caxton/Perskor/CTP (publishers of Citizen)

· City Press (Pty) Ltd (publisher of City Press)

Historically disadvantaged groups have already acquired significant stakes in many of the above groups or titles and the process is proceeding apace.

A.3 The USA has a multiplicity of geographically scattered media markets. It was therefore easy for a newspaper owner to avoid falling foul of "cross-media ownership" restrictions by investing in radio or television stations in geographically removed media markets: for example, owning a newspaper in New York, radio interests in Chicago and a TV station in L.A. However, the South African media market is much smaller, and economically dominated by Gauteng. As all TV licences are national, South African newspaper groups cannot avoid serving the same audiences as TV broadcasters. As a result, the cross-media controls imposed on South African media would have a much more restrictive impact than would be the case in a geographically diversified, big market such as the USA.

A4. The cross-media ownership restrictions in question affect not only the existing long established print media, but also emerging black print media groups and new entrants to the market, who will be disqualified the moment they aspire to benefit from a meaningful investment in the broadcasting sector. So, for example:

· The success of the Johnnic Ikageng empowerment scheme will depend on the performance of the company. Restrictions on its ability to continue growth as a broad based integrated media group may well jeopardise its prospects of success.

· Another example is that of City Press, which aspires to become a black owned integrated media company. As a first step, City Press put together the Kaya FM consortium, but by reason of being legally restricted to an insignificant 15% shareholding, City Press and the other media partners in Kaya FM are effectively precluded from making management decisions and providing a significant contribution to Kaya FM. As a result, City Press may have to withdraw as a shareholder and abandon its dreams of growth as an integrated media concern.

· Naspers has embarked upon a major empowerment scheme through its Welkom Trust, which has resulted in Naspers probably having the third largest number of registered black shareholders of companies listed on the JSE (18 000). If the restrictions are maintained, these shareholders will likewise be denied the opportunity of sharing in the benefits of growth.

B. SURVIVAL OF THE PRINTED MEDIA

B1. Over the past 20 years there has been a steady decline worldwide in the number of newspapers published, and average newspaper readership. The international decline in newspaper readership is considered to be an irreversible trend. More recently the Internet has emerged as an additional major new competitor for the printed media. In 10 years' time the electronic media in general is likely to become the dominant medium for the distribution of news and information. To deprive newspapers of meaningful participation in the rapidly developing new media forms may be to sound the death knell. It would be comparable to precluding, at the turn of the century, carriage makers from becoming involved in motor manufacturing. They would have simply died off, instead of having evolved into Buick, Studebaker and General Motors.

B2. In fact, one of the worst mistakes made historically by industries was to define themselves in terms of technology, e.g. making wooden horsedrawn carriages or running railroads, instead of defining themselves in terms of the service provided, i.e. transportation, and by not changing with the technology as it evolved.

A media company provides the public with news or entertainment or education and should supply that through print technologies, or electronic broadcasting means, or fibre optically conveyed means or, in future, three-dimensionally constructed media, or however the technology evolves. To be caught in one technology alone, is to be certain of obsolescence.

As the typewriter was overtaken by the word processor, which was in turn overtaken by the PC, yesterday's "drive-in" has disappeared as the same consumer needs are now being serviced by the video store. In the field of communications, the heliograph was replaced by the telex, which was replaced by the fax, which is being replaced by e-mail. Newspapers, being flattened tree trunks smeared with ink, are only one technical means among many (and a dated one at that), to fulfil the consumer's need for information. Companies that define themselves as "newspaper companies" will die with that particular technology; those that define themselves as "information providers" may survive, provided they serve their publics well and endure technological upgrades with the times.

C. FORMATION OF MONOPOLIES

C1. It should be noted that in South Africa the existing IBA Act (Section 49) already restricts the number of broadcasting licences that may be issued to any one party. That in itself already provides sufficient protection against the formation of a monopoly in this sector.

C2. Any further restrictions on ownership that may be considered necessary, should be regulated by using the forthcoming Competition Act. This would avoid undesirable dual regulation being imposed on the industry by different Acts, which is cumbersome, confusing and expensive.

D. AN UNLIMITED SPECTRUM

D1. For digitally delivered satellite services, there is no basis for a debate on scarcity of frequencies. Only terrestrial free-to-air services could conceivably be subject to special, industry-specific control: only that category/service is limited by spectrum considerations. Regulation of satellite services clearly should have been excluded from the Bill altogether. If Section 50 of the Act is not deleted, we recommend that it be amended to restrict its applicability to terrestrial free-to-air services carrying news.

E. THEMATIC TV CHANNELS ARE NO THREAT TO DIVERSITY OF INFORMATION

E1. In the white paper on broadcasting policy, it was stated that "concentration of media power" referred to the phenomenon whereby a few media players, through joint cooperation deals, mergers, acquisitions and cross-acquisitions and any other arrangements, structure themselves as powerful cross-holdings with financial or other interests straddling media types3. In South Africa today, of the 30-odd satellite channels broadcast in English, only 3 have news content and they are all foreign channels which are not subject to control by any South African interests (BBC World, Sky News and CNN). The other channels cover a variety of specialised subjects such as sport, music, cooking, etc.

E2. It is difficult to imagine why a private subscription broadcaster could be a threat to diversity of information. M-Net has, for example, never broadcast news. (Initially it wasn't allowed to and later it realised that it is not its business). M-Net wields no political influence and does not seek to satisfy the news requirements of its subscribers, but rather their entertainment needs. Its main competitors are not SABC News or CNN, but Ster Kinekor, NU Metro and the video store. For Super Sport or Carlton Food Channel, the argument is as strong.

E3. Considering the different categories of broadcasters and the different services4 they may provide, the only service which might have an influence on public opinion, and accordingly present a potential risk of concentration of media power, is a terrestrial free-to-air channel which carries news.

E4. It is also not obvious why entities such as signal distributors (Orbicom) or multi channel distribution services5 should be limited in their access to investment by or expertise from the printed media: they make no intellectual contribution to views being expressed by radio or television channels. If there are to be unique "crossmedia control" regulations that control should be aimed only at that segment of the television market which disseminates news, and contributes to (or restricts) diversity of viewpoints. All other television services will still be subject to all laws of the land, including the forthcoming Competition Act.

E5. This argument also applies to radio as a medium in modern South Africa. Internationally the trend is that radio itself is becoming thematical. Stations increasingly concentrate on one theme, e.g. music, social chat, etc. Why City Press, for example, should not develop and manage a music radio service, is not clear.

F. COMPETITION WITH MULTI-NATIONALS

F1. The existing Section 50 of the Act places the local printing and publishing industry at a distinct disadvantage in competing with multi-nationals who are already in the process of entering the local broadcasting market. Local investors will be subject to stricter investment criteria than would be the case with foreign investors. Such a distinction is not warranted and the reason for it is obscure.

F2. In the applications for the new open television licence recently allocated in South Africa, three global media companies featured prominently, i.e. Time Warner, NewsCorp (Murdoch) and Channel 9 (Packer). Two of those gigantic multinationals have already entered our broadcasting market. The multitude of integrated media services that they offer illustrates their competitive advantage over local companies. For example, it is instructive to examine the interests that Time Warner and NewsCorp respectively have in just one country, the USA:

TIME WARNER

Consumer magazines (biggest total stable in USA)

HBQ (Pay TV)

Time Warner Cable (one of the two largest in the USA)

Warner Brothers (major movie studio)

Warner Music Group

TNT Channel

Cartoon Network

CNN

Time Warner Telecom

(Telecommunications Services)

NEWSCORP (Murdoch)

Various major newspapers

Fox TV Network (free-to-air, including news)

Fox Sports Network (cable)

Fox Movie Studio (one of the biggest in the world)

Harper Collins (book publishers)

TV Guide (biggest single magazine in the world)

Time Warner is already active in South Africa as follows:

· It undertakes movie distribution

· It does music publishing;

· It owns Time magazine;

· CNN will compete directly with the SABC's new Pan-African news channel.

Yet Time Warner, this global integrated media giant, is now through its interest in Midi SA allowed to hold a higher interest in a South African broadcasting licence than local media companies.

NewsCorp is also already involved in South Africa. Apart from providing Sky News and Fox movies and videos, NewsCorp controls all rugby rights in South Africa in terms of a 10 year deal. It intends expanding its interests in South Africa.

For a comparison of these two companies with South African media companies in terms of turnover, see the annexed chart.

F3. The restrictions imposed on ownership of media companies in multiple broadcasting licences, and the ability to offer services across media technologies, are loosening in most markets. The effort within the European Union to adopt a directive on media concentration has been delayed if not abandoned due to changing technology. In the UK and in France national legislation has been adopted which changed previous restrictions and now permit a greater stake being held in broadcasters. In the United States a comprehensive review of cross-media ownership rules is being conducted as part of the liberalising changes prompted by the Telecommunications Act of 1996. While the process has not been completed, indicators are clearly that these restrictions will go.

The European Commission demonstrated that its powers under the general competition (antitrust) rules could be successfully applied to avoid dominance in broadcast markets. The Committee is invited to consider the recent memorandum on this subject which is filed with this submission6, where it is concluded that the discussion contained in the Triple Enquiry Report on international trends in the regulation of cross-media control has become obsolete.

F4. We are not advocating keeping foreign players out of the South African market. We accept that their investment in South Africa and the competition that their entry into this market may bring, can be beneficial. However, since the media world is becoming a global one, it is important that the local media not be hamstrung by being compelled to operate in small, artificially restricted market sectors, whereas the global players with whom they have to compete are able to become strong without being similarly hampered in their local environment.

F5. If the restrictions imposed by Section 50 remain in place, the chances of South African media players becoming strong enough to compete internationally, and in particular to lead the African renaissance in the media field, will be jeopardised.

F6. This Portfolio Committee should not gain the impression that the arguments advanced above apply only to Naspers. It applies with equal force to every media company in South Africa. The restrictive provisions of Section 50 are equally detrimental to entities such as Nail, Omni and City Press, and others who are striving to become media companies with integrated interests.

PART III: CONCLUSION

It is accordingly submitted that the control of cross-media ownership is an anachronism, and that it should be removed. If there were to be a need for it, it can only be in the very narrow field of the exchange of political ideas and in the context of a scarcity of frequency:

in this context the only party conceivably subject to special cross-media prohibitions would be a free-to-air terrestrial broadcaster which carries news.

[Ed note: Graph on Comparison of Market Capitalisation has not been included]

Orbicom

Click here for Orbicom's submission on the White Paper on Broadcasting Policy

Comments of Orbicom (Pty) Limited

on the BROADCASTING BILL, 1998

INTRODUCTION

Orbicom (Pty) Limited is a broadcast signal distribution company. We have established numerous satellite transmissions over the African continent and we are now managing earth stations and TV retransmission networks in twelve African countries. We have participated in the work on the Broadcasting Bill, and we support enactment of a clear legal structure for this important part of the South African economy.

As an overview to our submission, we offer the following:

The bill should operate in a broader economic strategy: This industry is one of the fastest growing parts of the South African economy. The bill, however, primarily focuses on regulatory burdens, without accounting for the broader contribution that this sector makes to jobs and the economy. How can these regulations be imposed in a context that lacks a specific economic strategy for the sector? Premature and excessive regulation will damage the industry, limit its creation of jobs and threaten export of services to the rest of Africa.

The bill should foster government - industry partnership: We have continually stressed the need for joint government and industry strategies to grow this sector and open markets. The bill does not contain this concept of partnership -- for example, § 30 on signal distribution talks only of new conditions, obligations and government intrusion into tariff setting. The bill contains too many costs and burdens, with multiple layers of licensing, but no incentives for development.

The White Paper context is missing: We understand that the Parliamentary Committee has no mandate to amend the White Paper, which was to provide the context for the bill. Without this context, the bill operates in a vacuum. For example, the White Paper called for a study into multi-channel signal distribution, but the bill authorises the IBA to start setting standards for this sector without adequate information and before any study is concluded.

We urge the Parliamentary Portfolio Committee on Communication to review this bill with a view to minimising bureaucracy and regulatory burdens. It seems that the current version has taken many regulatory approaches from other countries without always assessing their application to the developing status of our markets. The complicated approach of this bill will unnecessarily tie up the resources of South African companies as well as the IBA in hearings and regulatory proceedings, without allowing industry to get on with the business of contributing to our country’s advancement.

CHAPTER I

Definitions, Interpretation and Objectives

Definitions are not always clear: The bill says that it keeps some, but not all, definitions in the IBA Act. This approach is awkward in places. It is vitally important to correct and clarify what should be licensed and regulated under this bill.

• Definitions of "broadcasting service": These appear all over the place in the bill, in confusing and inconsistent ways. For example, the bill creates a new definition of "broadcasting service" but does not eliminate the IBA Act definition. There should be one single definition that applies throughout. That definition should be narrow and precise, so that it covers companies that are responsible for developing broadcasting content and delivering it to the public using a signal distributor.

 

 

• Some objectives are missing: Important concepts should be in this bill as well as in the IBA Act. For example, § 2(i) on efficient spectrum use does not refer to international practice, which is in the IBA Act and in other places in the bill. Several other helpful objectives from the IBA Act are missing, such as IBA Act § 2(n) on refraining from "undue interference in the commercial activities of licensees" and IBA Act § 2(r) on ensuring "stability of the broadcasting industry". The bill also should include the objective of "fostering government and industry partnership with the aim of ensuring the growth of the broadcasting industry and its contribution to national economic development".

CHAPTER II

The Broadcasting System

The Minister’s authority should be described carefully: This bill affects rights of free expression, so its wording has to be very careful.

• Language in the preface to this chapter and also in § 3(2) refers to the Minister’s "ultimate responsibility" to set policy. This could be interpreted to limit Parliament and court oversight. If the Minister has "ultimate responsibility", a court might give greater deference to the Minister’s decisions. Parliament should delete the world "ultimate" and add language that this authority should be "consistent with this Act".

• Parliament also should add to this bill the same type of sections that are found in the IBA Act on notice and comment. That approach would give the public an opportunity to respond to policy directions in a clear way. The same provisions should be added to § 37 of the bill concerning the process by which the Minister sets regulations.

The entire broadcasting system must achieve national goals: There should be language in § 3(1) stating that the South African broadcasting system "as a whole" should accomplish the goals listed in that section. This language should be included in the first line of § 3(1), so that it is clear that these social obligations are the general responsibility of the system. No one part of the system can serve all needs.

CHAPTER III

Classification of Broadcasting Services

Again, the definitions must be precise: It is important to get a correct definition of who is regulated under the Broadcasting Bill.

• The big problem comes up in § 4(2), where the bill seeks to define a "broadcast service". The terms in that definition could cover many more companies than is intended. This section does not say whether a company is a broadcaster if it does one or all of the activities listed in § 4(2). These activities extend too wide a net, and could even extend to business TV or data distribution.

• This definition could require a company or group of companies to obtain two, three or more licences, even though the customer is receiving only a single service. This system needs to be streamlined and made more efficient.

The broadcasting system is made up of the following levels, not all of which need to be licensed in the South African system:

• Content producers and directors, who are the first level in the system.

• Broadcasters, who develop and offer locally-compiled programming to the public. M-Net and SABC are examples.

• Signal distributors who operate facilities based on their technical expertise. Orbicom and Sentech are examples.

• Administrative or associated companies, who provide services to the broadcasting industry but do not control signal distribution facilities. MultiChoice is an example.

• Equipment suppliers and installation providers.

• Technology and software developers responsible for the technology that contributes to digital transmission and conditional access.

Not all these companies should be licensed, because they are not broadcasters. The goals of the bill and of South African policy can be achieved by issuing licences to broadcasters and signal distributors. It is unnecessarily complicated to require duplicative licences for the other levels. These companies may voluntarily comply with industry codes of conduct in order to assist the broadcasters or signal distributors that they serve to comply with regulatory requirements.

CHAPTERS IV and V

Public and Commercial Broadcasting Services

We mainly will defer to the public and commercial broadcasters for comments on these chapters. A few issues, however, should be reviewed.

SABC automatic licences for both broadcasting and telecommunications: The wording of § 18(2) on SABC licensing will cause confusion between the broadcasting and telecommunications laws. The current language says that the SABC is entitled to any licences it may want under the IBA or Telecommunications Act, "notwithstanding anything to the contrary contained in the IBA Act, or any other law". We are not certain that this sweeping approach was intended.

 

Chapter V is confusing: § 27 mixes provisions on subscription services in with objectives for commercial broadcasting in general. Several questions should be addressed.

• Coverage requirements: This provision in § 27(1)(d) is not consistent internally. It says that service shall be extended "to all South Africans and provide comprehensive coverage of the areas which they are licensed to serve". This language does not make it clear whether service providers must offer coverage of all South Africa or a specified coverage area.

• Content control: § 27(3) gives more discretion to the IBA to regulate the content of subscription services than is appropriate. It says that the IBA shall set licence conditions on local content "and other conditions relating to the licence". There is no guidance on what these conditions might be. The White Paper does not give sufficient guidance and such a broad grant of authority could conflict with freedom of expression. This issue is especially important if the White Paper is not amended to give government policy guidelines.

• Satellite services: § 27(3) should exclude satellite services with overseas content. It is not reasonable or practical for the IBA to review what is on the BBC or CNN. If every country within the footprint of a satellite signal applies different rules, then it will not be possible to provide those types of services.

CHAPTER VII

Signal Distribution and Multi-Channel Distribution

As we are a signal distributor, our main concern with the bill relates to this chapter. It sets out a long list -- or allows the regulator to set out a long list -- of new regulatory obligations without telling us precisely what those rules will be.

Undefined rules for signal distribution: § 30 on signal distribution says that the IBA is to propose "terms, licence conditions, obligations and a tariff structure" for signal distribution "upon opening of the sector to competition by the year 2000". Nowhere does this section or chapter also refer to supporting and growing the industry. The following issues should be seriously discussed:

• No criteria are given for the IBA proposals: Some terms of reference should be given for the IBA proposals in this section. Otherwise, the sweeping IBA authority is too wide and compromises the legislative process -- Parliament and industry are being asked to approve undefined new obligations.

• The language should be modified: § 30 talks of "opening" competition, when what we think the section means is to "expand" competition. There already is competition in the signal distribution sector. These technical details are important, because vagueness causes uncertainty and can lead to awkward interpretations by the regulator or the courts.

• The date and mandate given are this section is too vague: Is the year 2000 the date for the IBA proposals or the date for expanding (not opening) competition? Does this date co-ordinate with the report on multi-channel distribution that the White Paper says the IBA will conduct by 1999? The bill needs to be more precise.

Controlling signal distribution tariffs is inappropriate: There is no need for § 30 to call on the IBA to study or propose signal distribution tariff structures.

• Market forces set tariffs, as they already do for private signal distributors. It is inconsistent to seek to expand competition but also to set tariffs. In all other sectors of the economy, pricing problems are reviewed under competition and consumer laws.

• This greatly interferes with business planning: To set tariff structures, the IBA must second-guess every business aspect of signal distribution, including decisions on their technology, their staffing and marketing costs, their capital investment planning and so on. How is the IBA going to do this without interfering to an enormous extent in business planning?

• The IBA would have to hire many new staff: Reviewing complicated tariff structures and looking over the shoulder of signal distribution business decisions is not a reasonable burden for the IBA to assume, nor one that will work. This approach would require an expensive new IBA bureaucracy, at a time that the IBA’s budget is actually shrinking.

CHAPTER VII

Signal Distribution and Multi-Channel Distribution

(continued)

Reference to a local priority must be seriously debated: § 31(2) and also 33(1) talk of giving priority to South African service on multi-channel distribution systems. We are working to expand coverage of South African services and in principle we support giving priority to local channels on commercial terms. However, the bill creates Government requirements without explaining how the system will work.

• "Priorities" are dangerous: They could require the signal distributor to take an international channel off a saturated system in preference to a domestic channel, no matter what customers think about it. This result could seriously affect economic and programming decisions of the service provider and upset customer expectations.

• Private signal distributors should have discretion over channels: These sections do not explain (nor does the White Paper) how a signal distributor will handle "priority" channels. How will a private signal distributor decide about the quality or genre of the local "priority" channels? Absolute priorities could require a signal distributor to carry an adult channel that the distributor otherwise would refuse, just because that channel has local content.

• Priorities are premature: It is too early to decide that signal distributors must give priorities to local services, because there are not many local services yet. Government should create incentives for new local services, rather than impose restrictions on multi-channel distributors, as the way to contribute to progress in this area.

Rules on access are not clear or complete: § 31(2)(b - e) establishes access and other obligations that are not clear. This section calls on the signal distribution sector to provide universal access and diversity, distribute services in all official languages and deliver public services.

• § 31(2) confuses the obligations of the signal distributor with those of the content provider: It is not the signal distributor who provides diversity; instead, it is the content provider.

• "High site" access is missing: There is no reference in the bill to access to "high sites" which signal distributors need to provide universal access. Government committed itself to this access during stakeholder committee meetings and it should be in the bill.

CHAPTER VII

Signal Distribution and Multi-Channel Distribution

(continued)

The proposed rules on multi-channel distribution are not clear: It is premature to include these provisions in the bill, since the White Paper calls for an IBA investigation of what the rules for multi-channel distribution should be. A clear sequence of events should be set forth in the bill, starting with the terms of reference for a study on multi-channel distribution and an adequate time for thorough analysis of the issues. Only then should the IBA start to set rules for this new and complicated sector. We already see some questions in the bill that should be addressed.

• Reasonable cost for effective technology: We do not oppose reasonable costs and we always seek to implement effective new technology. However, § 33(1)(b) could create excessive Government oversight of those costs. "Reasonable" has to mean market-related. Only the signal distributor can determine what is "reasonable", based on market considerations, since only the distributor can balance technical issues versus market and business planning.

• Multi-channel agreements: § 33(1)(c) gives the IBA authority to set "reasonable terms" for multi-channel "packaging and retailing" agreements. This approach conflicts with private carrier operations and is intrusive. The IBA would have an impossible burden to determine what are reasonable terms, as this is a competition and marketing issue. The IBA would have to sort through all kinds of issues, including technical and investment decisions, which it is not designed or staffed to handle.

• Programme origination: § 33(1)(d) is not clear, but it says that IBA approval is necessary before a multi-channel distributor can carry "original" programming. We believe this section requires the distributor to obtain advance approval to "originate" programming, which if true intrudes into the free expression rights of operators.

• IBA terms and conditions: § 33(2) gives the IBA unclear authority to set terms and conditions for "the multi-channel delivery system", subject to objectives for broadcasting policy in Chap. II. Those objectives are too vague to provide enough guidance. This section is far too open ended. These provisions should not be adopted until the investigation into multi-channel service called for in the White Paper is complete.

CHAPTER VIII

Frequency Spectrum Directorate

We support creation of the Directorate, so long as its role is clarified and policy clearly shows that IBA decisions should be free of political interference.

• There may be some jurisdictional jostling between the Directorate and the IBA. The bill’s amendment to IBA Act § 31(2) says only that the IBA must "have due regard" to the national frequency plan developed by the Frequency Spectrum Directorate established in § 34. We support leaving the IBA authority to "manage" frequency bands, as is shown in amendments to IBA Act § 13(1)(b) in the bill schedule of changes to the IBA Act.

• There should be clear policy statements set forth preserving IBA authority and reinforcing the need for the directorate to balance all interests fairly. Otherwise, the directorate might have a natural tendency to tilt in favour of government-owned entities, in preference to private competitors.

Final Matters

In any bill with this importance to the economy and free expression, there are bound to be many details to be corrected. We offer the following final thoughts on various parts of the bill.

• Production Advisory Board: There should be additional guidance on the terms and conditions that the Minister will use to establish this board under § 35. Although this is an advisory board, its recommendations may be extremely important for financing strategies.

• Anti-Piracy provisions: Revision to § 66A of the IBA Act in the bill would amend provisions that protect against stealing signals from pay-TV providers. These provisions must be tightened, to put in place penalties for anyone who receives, assists in receiving or possesses equipment to receive any unauthorised signals. This section should be broad enough to cover stealing any signals that are unauthorised -- current sections of the IBA Act are too narrow and allow a lot of piracy to go on without effective penalties. We have attached as an annex to this submission proposed new language for this necessary protection.

• Limits on fees: There are no provisions defining or limiting the fees that the IBA can charge for licences issued under this bill. Licence fees should not be used to disguise new taxes and levies on the broadcasting industry, since heavy fees will harm our economy. They will only be passed along to consumers and create a high burden for expanding the broadcasting system. There should be explicit limits on the types of fees that can be charged under § 31(3), perhaps stating that fees can only be levied to fund the cost of administering the regulatory system.

• Study on Multi-Channel Distribution and the Digital Advisory Council: The White Paper promised to conduct these investigations, both with a deadline of the end of 1999. As we have noted above, there should be provisions for both investigations in the bill, since they are so important to the future of our industry. The bill contains a provision for a study on community broadcasting, so why should there not also be a provision for other investigations that Government has promised?

• Access to Intelsat: South African broadcasting signal distributors should be able to order space segment directly from the international satellite organisation Intelsat. This approach is the global trend among developed and developing countries. Direct access cannot harm Telkom, nor interfere with its core purpose of providing basic voice services. This issue was raised in the Green Paper and is an important element of national policy.

4 September 1998

Appendix 2: COSATU

COSATU

1. Introduction

The White Paper on Broadcasting Policy (the "White Paper") and the Broadcasting Bill (the "Bill") are important landmarks in the transformation of the broadcasting system. Until recently, the South African Broadcasting system functioned as one of the most politicised broadcasting systems in the world. The SABC was created to serve the interests of perpetuating apartheid oppression; and its services were devised along ethnic and racial, class, language, and geographic lines. Although new entrants came into the market in the 1980s, this did not result in transformation of the system. As noted in the White Paper, the hallmarks of this broadcasting system were political censorship and the dissemination of propaganda on all services. The broadcasting system also operates in the highly concentrated media industry, which makes it difficult for new entrants to establish themselves.

The enactment of the Independent Broadcasting Authority Act signaled a shift in broadcasting policy in South Africa. The IBA has played an important role in opening the airwaves, significantly to community radio stations. Further, the IBA recently issued a license for the first privately owned free-to-air television service. Although these reforms have changed the broadcasting landscape, there continue to be many inequalities in the broadcasting system. The most glaring inequality is the uneven penetration of television in urban areas, and between urban and rural areas. Ownership of television sets and VCRs is skewed in racial and regional terms. Some of the inequalities include:

• Inequality in access;

• Inequality in resource allocation;

• Inequality in language, cultural and educational programming;

• Lack of diversity and choice, in services and in programmes; and

• Lack of empowerment for historically disadvantaged communities (White Paper, p.12).

The terrain in which South African broadcasting is transformed has dramatically changed since the institutional frameworks were created on South Africa. Globalisation has shifted economic frameworks that govern activities of many countries. Countries are being forced to de-regulate and liberalise their economies ostensibly to facilitate ‘free trade’. In this context there is massive pressure on the state to withdraw from the economy and to slash the size of public institutions. Many sectors which were defined in the past as national services, characterised by state monopoly such as broadcasting are either being privatised or subjected to increasing competition. The government’s macro-economic strategy is imbued with these developments. The fiscal austerity stance adopted in GEAR has far reaching ramifications for broadcasting, especially the public broadcaster.

Against this background, COSATU regard the Bill and the White Paper in some areas as a watershed in the transformation of the broadcasting system, and we have serious concerns in others. We thank the portfolio committee for affording us the opportunity to participate in the public hearings. This presents an opportune moment to realign the broadcasting system in line with our new democratic dispensation. This submission will outline COSATU's broad approach to the Bill, the public broadcasting service, community broadcasting, commercial broadcasting service, signal distribution and multi-channel distribution, skill development, the role of the Minister and the Regulator, and other issues related to broadcasting. Proposed technical amendments are attached to the submission.

2. COSATU's Approach to the Bill

COSATU is supportive of the broad intentions of the Bill and the White Paper to reform the broadcasting system in order to allow for more participation by other stakeholders. In opening up the airwaves we need to be sensitive to the need to ensure that the public broadcaster is not undermined, as this will have undesirable effects. If the public broadcaster is not able to fulfil its public service mandate, broadcasting services will only be available to those who can afford to either pay subscriptions or currently enjoy access. In our view the broadcasting system should be guided by the following important principles:

• Universal access;

• Redress of past imbalances;

• Human resource development;

• Promotion of local production and content;

• Job creation;

• Promoting ownership and control by South Africans;

The objects outlined in section 2 of the IBA Act (Act 53 of 1993) still remain relevant and should continue to guide the broadcasting system. Further, we support the objects outlined in section 2 of the Bill, as they are consistent with the IBA Act and will ensure a democratic broadcasting system. The Constitution guarantees a number of fundamental rights, which should be taken into account in determining broadcasting policy and its regulation. In addition to the rights identified in the White Paper (p.14), we would add the right to access information. The broadcasting system is part of the information infrastructure, which serves to impart information to the society. It is therefore positioned to play a significant role in ensuring the right to access information and securing peoples basic communication right.

COSATU believes that the White Paper places an important emphasis on diversity of broadcasting services, which would result in more participation by a variety of stakeholders. We therefore, welcome and support the three tiers of broadcasting, namely public service, commercial and community broadcasting services. Both public service and community broadcasting operate on a non-commercial basis, in response to the need for universal access to broadcasting services. If they were driven solely by the profit motive, a large section of the community would be excluded from broadcasting services.

In addition, we recognise that these tiers of broadcasting service have different social and economic roles to play and if regulated carefully, should complement one another and cover the totality of broadcasting needs in society. As pointed out by the FXI in its submission "policy needs to ensure that it appreciates the different roles of these tiers: if it does not, the interest of some constituencies may override others." We therefore support the classification of broadcasting services (section 5 of the Bill) and the requirement for all broadcasting service to hold a license (section 4 of the Bill).

COSATU has a number of concerns with the process of developing the Bill. The fact that the Bill is prematurely tabled while the White Paper is being discussed, is cause for concern. Whilst we recognise the need for legislation, we however, do not believe this should be rushed. As a result we are forced to comment on both the White Paper and the Bill. In some respect the Bill fail to systematically implement directives contained in the White Paper as shall be outlined in the course of the submission.

Secondly, there was no consultation with COSATU. Neither COSATU nor CWU were invited to participate in the Stakeholder Committee. We view this exclusion as a matter of serious concern, as we have an interest in the future of broadcasting in South Africa.

Some of our concerns revolve around the proposed restructuring of the SABC, the merger of the IBA and SATRA, and the community broadcasting services. Specifically, the NFA process has been marginalised in the restructuring of the SABC. These will be raised in the relevant section in this submission. Secondly, were it not for the intervention of the portfolio committee, the incorporatisation of the SABC would have proceeded outside of the scope of the proposed legislation and policy. These concerns raise important principles regarding public participation and should be noted by the portfolio committee.

3. Public Broadcasting Service

Restructuring of the SABC

COSATU believes a strong public broadcasting service is central to fulfillment of the public mandate. The public service broadcaster should in our view be primarily responsible for rolling out services to previously disadvantaged communities. The infrastructure of the public broadcaster should be used to guarantee universal access – the availability of broadcasting services to all citizens, and to expand access to marginalised communities. This should be the strategic objective of the public broadcaster, as we cannot rely on the commercial broadcasters to achieve universal access. More importantly it is only possible to ensure that public mandate is contained in the programme content of public broadcaster compared to the content of the commercial broadcasting.

In order for the public broadcaster to be able to fulfil its public mandate there should be greater commitment from government to allocate resources. The fiscus should be the main source of funding for the public broadcaster. In this vein, we support the IBA’s recommendation for triennial funding for the SABC to allow it to fulfil it public service obligations. This will create certainty and secure public service broadcasting against the private sector.

The commercialisation model proposed for the SABC is based on the notion that the corporation should become self-sufficient whilst funding from the fiscus is gradually decreased. This however, is not backed up by a detailed study on what the impact of dividing the SABC into commercial and public services arms will be. It is not clear what will be the extent of cross-subsidisation, what the impact of restricting advertising on the PBS service will be and how potential duplication of corporate services will be avoided.

There is no guarantee that the SABC will be self-sufficient without appropriate support from the state. This is compounded by the fact that advertising revenue would decline as more services would compete for such revenue. This would render subsidization from the commercial arm to the public service arm ineffective. The withdrawal or gradual erosion of state funding for the public broadcaster may lead to ‘cherry-picking’, resulting in the broadcaster focusing on commercially viable activities rather than implementing its public service mandate. This will further place the broadcasting services further away from the reach of those who currently lack them.

There is no clarity which four radio stations and the television channel will form part of the commercial arm of the SABC. In addition, no process is outlined to identify such service. Government needs to spell out which television and radio station will fall under the commercial arm of the SABC.

COSATU does not support the incorporation of the SABC in terms of the Companies Act as proposed in section 7 of the Bill. This proposal incrementally introduces commercial principles and activities such as a corporate shareholding management structure and an increasingly private sector reliant programming policy. Whilst the Bill purport to opt for corporatisation in the legal form of the Companies Act, there are contradictory elements in the proposed legislation, for example the SABC needs Ministerial approval to acquire land and borrow money.

Rather than legislating in this contradictory fashion, it would be more preferable for an inquiry into the most appropriate legal form for the SABC informed by the vision of a transformed public broadcasting service, serving the needs of all South Africans. It is not clear to us what is wrong with the current legal form of the entity. Further, the split of the SABC into a public broadcasting and a commercial broadcasting service does not require the legal form of the Companies Act.

In order to ensure that the commercial arm does not have unfair competitive advantage in relation to other commercial broadcasters, it must operate in a self-sufficient manner without public support. The Regulator should then check that it does not receive a subsidy from the state. This however, does not mean that the commercial arm cannot subsidize the public broadcasting arm. While the inquiry is taking place, the current status of the SABC should be retained. The proposed inquiry should be investigate the following:

(a) the funding base for the public broadcast service,

(b) the mechanism for cross-subsidization from the commercial to the public service arm of the SABC, and

(c) the impact of restricting advertising on the public broadcaster.1

The results of the inquiry should be used to determine the appropriate legal form for the SABC. SABC restructuring should also be in line with the NFA process.

Preferably, the cross-subsidization model should be internal rather than left to the Minister to determine. The Bill requires the corporation to pay dividends to the shareholder, and the Minister has the discretion to allocate to the SABC on the basis of recommendations of the SABC Board. The surplus will be paid to the National Revenue Fund. In terms of section 11(d) the Minister should approve subsidisation from the commercial to the public broadcasting service on the recommendation of the SABC Board. This model creates instability, as there is no guarantee that money received from the corporation will be ploughed back into the SABC. There is a possibility that such moneys can be used to pay the national debt (for instance, as it happened with the proceeds of the sale of the other radio stations), rather than being reinvested in the corporation.

Having said this, we note with concern the statement in the White Paper (p.20) that "separation will a be a precursor to a later, more complete restructuring of the SABC operational activities, which will review the scope and size of SABC commercial activities and investigate the possible privatisation of, or the introduction of private equity to, the SABC’s commercial services." The privatisation of commercial services will make cross-subsidization a distant reality, and in the light of government withdrawal in funding the SABC, create momentum for privatisation of the public broadcasting service.

The Charter of the Corporation

COSATU welcomes and supports the inclusion of the charter for the corporation in the Bill. The Charter will play a significant role by clarifying the mandate and duty of the SABC, and allow for monitoring to evaluate whether the corporation fulfill its mandate. Further, we welcome and support the objectives of the corporation outlined in section 8 of the Bill and the responsibilities outlined for the public broadcasting service as outlined in section 10 of the Bill.

Although the commercial arm will be regulated in terms of the framework for commercial broadcasting, we believe that it should be brought under the purview of the Charter. As such, the commercial arm needs to be guided by the overall vision of the public broadcasting service. Section 11(b) is important in this regard.2

As noted above, the SABC’s financial independence is curtailed in the Bill, particularly by section 20. In terms of this section the corporation may not borrow money without prior written approval of the Minister and the Minister of Finance. In addition, the SABC need the approval of the Minister in terms of section 21 to acquire land in respect of transmission and reception facilities. This restriction appears to us to be too stringent, as a public corporation the SABC should have to account like all other public corporations. We believe that these provisions need to be relaxed. First, the SABC should be able to acquire land in pursuant of its objectives. However, it must seek Ministerial approval in cases of land expropriation as provided for in section 15 of the Broadcasting Act (Act No.73 of 1976, as amended. Secondly, a borrowing ceiling can be set, beyond which ministerial approval can be required.

Corporate governance

COSATU welcomes the fact that the Bill contains appointment procedures of the SABC Board. However, the current procedure is too broad and subject to varying interpretations. For instance, the provision such as ‘participation by the public in the nomination process’ is too broad and open to varying interpretations. The appointment procedure should be spelt out in more detail including the grounds for disqualifying candidates.

Further, we welcome the criteria outlined in section 13(1)(a) as it will result in a representative board.3 This is an important victory to COSATU as we have campaigned for a representative board for the SABC. There should be worker rerpresentation on the Board. Such a representative will represent the interest of SABC employees and it is consistent with the principle of worker participation in the governance of the organisation. This is distinct from the person who has expertise and knowledge of labour issues as provided for in the Bill.

There is a need for clarity as to when the new board will be appointed. Section 13(6) state that members of the Board appointed immediately before vacating the transfer date will retain their appointments with all existing benefits. This can be interpreted to mean that the new board will be appointed as and when the incumbent’s period of service has expired. Alternatively, it may mean that parliament will only fill vacancies in the current board to ensure that it is in line with the new Act. The Board as constituted in terms of the Broadcasting Act of 1976 should comprise 12 to 16 members. Section 13 (6) would therefore create supernumeraries in the Board by conflating the two legislative frameworks. Our preference is for the Board to be reconstituted and current members can be re-nominated if they so desire.

We wish to raise two issues relating to the Executive Members of the board. First, we believe that the non-executive members of the Board should appoint them. Secondly, their term of office needs to be clarified. Since the Chief Executive Office, the Chief Operations Officer and the Financial Director are executive members of the board, it would seem that their term of office is equivalent to the term of the board. This creates unnecessary confusion and we propose that policy indicate whether they are appointed on fixed term contract or appointed on a permanent basis.

The Bill does not outline the functions of the Board. This should be corrected and the Bill should outline the Board’s functions. This should include protecting the independence of the SABC. COSATU believes that the independence (including editorial independence) of the SABC should be explicitly guaranteed in the charter. We must avoid diluting the independence of the SABC, and the credibility of the institution should be secured in legislation.

4. Community Broadcasting

Our starting point is that the frequency is a limited public resource, which must be distributed equitably between urban and rural areas and ensure coverage of a broad range of community interests. Secondly, it is imperative to ensure that commercial broadcasters do not operate under the guise of community broadcasting. As argued in the White Paper the community sector offers considerable prospects for community empowerment and nation building. The community sector can further complement the public broadcasting service and reach out to areas where broadcasting services are non-existent. Further, we support the White Paper when it argues that community broadcasting must represent all the people in the community in ownership, control and decision making.

Having said this, we note the proposal to move towards geographically founded community broadcasting. However, we believe that an inquiry should be held to investigate the future of community of interest licenses. Otherwise, we run the risk of curtailing media diversity by prematurely shifting towards geographically founded licenses without ascertaining the implications for community of interest licenses. This should not be construed to mean that COSATU believes that there is a concerted campaign to get rid of community of interest licenses as argued by other groups.

An alternative route could be to retain this category of license and develop a national frequency plan with targets for both geographically founded and community of interest licenses. Within the national plan, targets could be set for both forms of licenses and the authority can prioritise according to available frequencies. This plan should be reviewed from time to time. The terms of the inquiry contemplated in section 29(9) should be amended to allow for an investigation into the future of community of interest licenses rather than a transition towards geographically founded licenses.

COSATU supports the call for the establishment of the statutory Media Development Agency (MDA). This structure would contribute significantly to promoting media diversity especially through its support for community broadcasting. Most importantly, the MDA will serve as a conduit for capital injections to community broadcasters, who are currently facing severe cost constraints. It will also provide training to this tier of broadcasting and thus secure their viability and sustainability. Whereas the White Paper envisaged an equivalent institution called the Community Development Trust, the Bill is silent on this issue. This should be corrected by accordingly amending the Bill to establish the MDA.4

The Bill in terms of section 29(7), limits community broadcaster access to national advertising, a concept which itself is unclear. This provision is unnecessarily prohibitive and should be changed. Whilst we understand the need to protect the identity of community broadcasting, restricting access to national advertising may have the undesirable effect of denying this tier an important revenue source.

The restriction placed on the community sector to free-to-air in terms of section 29(1) should also be relaxed. We believe that the sector should be able to explore various distribution technologies including satellite distribution networks. Finally, COSATU supports the enquiry into community television as contemplated in section 29(10) of the Bill.

5. The Regulatory Framework

The Minister and the Regulator

The White Paper set out to clarify the roles of the Minister, the Regulator and Parliament. This is in response to the argument that the IBA Act merged policy formulation and regulation into a single structure. COSATU agrees that the Minster should bear responsibility for policy formulation as set out in section 3(2) of the Bill, which states that the Minister is ultimately responsible to develop policy that is required from time to time. However, both the White Paper and the Bill have further confused and fudged the role of the IBA and Minister.

There is confusion in both the Bill and the White Paper on where policy stops and regulation starts. For instance, the IBA is given the mandate to inquire of policy matters such as local content, cross media ownership and foreign ownership. On the other hand the Minister is given the power to issue regulations in respect of any matter required to be prescribed by the Minister to achieve the objectives this Bill (in terms of section 37(1). Against this background recommend deleting section 37 and amending section 3(2) to give the Minister the power to issue broad policy directives consistent with the section 2 of the Bill.

The Minister’s power and privatisation

The Bill provides that the Minister will be granted power to determine all matters relating to privatisation of government broadcasting enterprises in terms of clause 13A(a), which amend the IBA Act. The intention is to shift the responsibility from the Regulator to the Minister. COSATU support the amendment to give the Minister the powers to deal with state asset restructuring rather than leaving it to the IBA.

However, we have a problem with the amendment as it currently stands. The amendment suggests that state asset-restructuring take the form of privatisation. While restructuring of state asset may take place, privatisation is not the only option. The Bill is totally silent on the National Framework Agreement and the role of parliament in state asset restructuring. While the Minister is given powers around state asset restructuring, we would argue that state asset restructuring should not be left to regulation but should be in the form of legislation. Secondly, it should be subject to public scrutiny. State broadcasting enterprises are public assets and forms part of the national heritage.

Section 195 of the Constitution, which applies to all governmental bodies, direct them to operate in an accountable and transparent manner. Therefore any state asset restructuring should be subject to public scrutiny and within nationally agreed frameworks.

The merger of the IBA and SATRA

In principle we agree with the logic informing the formation of a single regulatory authority. However, we have concerns with the way this is being implemented and that this needs to be carefully managed. The White Paper (p.45) promised that legislation will be tabled in the course of the 1998 parliamentary session and the new regulatory body will commence operations in the 1999/2000 financial year. We are disappointed that such legislation has not been tabled to date. The speculation around the process fueled by this omission is compounded by the fact that the merger of the operational aspects of the two bodies is already taking place outside of a clearly stipulated framework.

The timeframes set by the Minister to complete this exercise are short, and secondly there has not been proper consultation with the IBA about this process. The issue of convergence is quite a complex phenomenon and to rush the process through without weighing the impact of digitisation on job security is a matter of concern. More broadly, no detailed study has yet been carried out to investigate the savings that will accrue from the merger.

The complex question is the fact that the IBA and SATRA are two qualitatively distinct bodies created through different founding legislation. While the logic of integration is accepted, there is a need for a legislative framework, which is sensitive to the dynamics of the two components that will form a merged authority. Further, there is a need for a study to evaluate the implication of merger and how authority will look like after merger. Part of the study needs to look at the job losses that may result from the merger process.

6. Signal distribution and multi-channel distribution

COSATU supports the broad vision for signal distribution outlined in the White Paper and sections 30-31 of the Bill. Increasing signal distribution network to cover 80% of the population compared to the current 60% is beneficial to the public. Since this will have cost implications for the public broadcaster, there is a need for fiscal support to facilitate implementation of this objective

Further, government need not be a neutral shareholder but should support the common carrier in whatever way possible. Therefore, the government should clarify the type of financial assistance, or infrastructural development plans it will provide to ensure universal access/service. The opening of the market to competition should not result in the state owned enterprise losing as a result. This will require innovation on the part of the enterprise as well as appropriate support from the state.

There should be proper consultation and discussion on the restructuring of Sentech. The White Paper (p.30) identify three options for restructuring Sentech, namely retention of the status quo, partnerships and privatisation.

We note the proposals in both the White Paper and the Bill in relation to multi-channel distributors. We concur with the White Paper that there is a need for regulatory framework to be further developed on digital convergence and multi-media. We therefore support the public inquiry to be undertaken by the Authority.

Digital convergence and multi-media technology would have a dramatic impact on job security. Secondly we need to ensure that that this form of technology does not erode universal access. Thirdly, the impact on television broadcasters needs to be taken into account. Digitisation removes the organisational barrier between broadcasting, communication and information, and would require repositioning these services.

7. Commercial Broadcasting

COSATU accepts the necessity of the category of commercial broadcasting services, provided that proper support should be provided to the public broadcaster. This opens the broadcasting sector by allowing for participation of a range of service providers. It is important as the Bill does to bring the private sector under the ambit of the regulatory framework. This will help prevent the proliferation of fly-by-night commercial broadcasters. The mandate given the IBA to investigate the feasibility of introducing a second subscription service as well as regional television is important in this regard.

8. Skills Development

Notwithstanding the provisions of section 36 of the Bill, we believe that compliance with the Skills Bill should be expedited. This includes setting up a Sector Education Authority (SETA) and contributing 1% of payroll to fund skills development. The SETA is important, as it will cover both the public and private sector. We concur with the White Paper that human resource development strategy for the broadcasting sector must be viewed holistically in terms of qualification standards, skills development, teaching, interrelationship with complementary sectors and the funding of the training system.

The second aspect of education and training relates to provision of education and training programmes by all broadcasters. COSATU supports the White Paper’s conceptual framework regarding education programmes including the role of different broadcasters, the objectives of human resource development, the investigation of a dedicated channel for education and a regulatory framework for regulation of educational broadcasting.

9. Other issues

Cross-media ownership

COSATU in principle supports the White Paper (p.40) that cross-media ownership should be limited to ensure that there is an equitable share of voice across all print and electronic media in South Africa. Further, we concur with the argument that the principle of deemed control should apply. According to the White Paper, a person shall be regarded as being in control of, or being in a position to exercise control over a company if he holds shares exceeding 15% or has other financial interests therein equal to at least 15% of its net assets. The IBA should expedite the process of developing formal regulations on cross-media ownership. Further public discussion is needed to determine what constitute the proper ceiling.

Limits on foreign ownership

We note that the IBA is to undertake an investigation on this and to report on what the appropriate level of foreign ownership should be. Government’s stated intention is to raise the current ceiling of 20% in order to facilitate investment. The White Paper fails to provide timeframes for this to happen. It is urgent that this matter is investigated and resolved as it will have an impact on new entrants in the market. We support the general principle that South Africans should be in control of broadcasting, and that investment in the sector should be encouraged.

Local content

We welcome the establishment of the South African Broadcast Production Advisory Body in terms of section 35 of the Bill and the White Paper. We believe that this body will play a significant role in promoting local content production. The White Paper envisaged that the body would have representation from all broadcasting stakeholders. The Bill should expressly state the manner in which the body will be composed. Section 35(2) requires that the Minister consult with the body on amongst its composition. How can the Minister consult with a non-existing body? This omission should be corrected by stipulating the composition of the advisory body.

Further, we welcome the directive to the IBA to draw a plan for local content carriage by broadcasters – for all South African broadcasters to reach a predominant local content in all genres within a target period of 10 years. The IBA should be required to draft a proposal on the level of local content requirement to be imposed on broadcaster and submit this to a public process for discussion. The result of this discussion should then be used to develop the plan.

Elections

The forthcoming elections require an independent body to monitor the media along the lines of the Independent Media Commission established prior to the 1994 elections. The IBA should be required to carry this function as it falls within its scope of activity.

10. Conclusion

While we support the objective of the Bill and the White Paper to transform the broadcasting system, we have underlined certain areas that need to be improved and in some cases changed. This should not obscure many areas in which we are in agreement with the Bill and the White Paper. The proposals contained in this submission seek to enhance the policy and legislative framework for broadcasting and hope that they will be taken on board. We are available to discuss with the committee any issue raised in our submission. We are proposing amendment to the Bill in the following areas:

• Separation of policy-making and regulation;

• Commitment to programming in all languages;

• Legal status of the SABC as an independent statutory entity;

• The board of the SABC, including appointment procedure,

• Funding and financial affairs of the SABC;

• Staffing of the SABC;

• Community Broadcasting; and

• Minister’s power with regard to privatisation.

Again, we thank the portfolio committee for giving us the opportunity to participate in the public hearings. We commend the Minister and the Department for developing the Bill and the White Paper.

11. Annexure: Technical Amendment

COSATU’S PROPOSED AMENDMENTS TO THE BROADCASTING BILL

Please obtain this table of proposed amendments from the Cosatu website at http://www.cosatu.org.za/

Appendix 3: Task Group for Empowerment of Afrikaans Users on Television
 

Task Group for Empowerment of Afrikaans Users on Television

Public Broadcasting in a democratic multi-cultural society

· Functions:

Information

Entertainment

Education

· Target Audiences:

Different Languages

Different Cultures

Different Needs and Interests

· Technical Outcome:

Different Time Slots

Different Channels Different Frequencies

· Societal Outcome:

Freedom and self-expression

Peaceful co-existance

South African Broadcasting in a Global context

· Communication and information system: it IS global

· Cultural and political isolation? Impossible

· Choices and exposure: Increasing and Widening

· Governmental and Political control: Limits

· Technological advances vs over-regulation of media Self control and civil control

Theory and Practice

A. Theory

Objectives: (See Preamble p1 and objectives pp 10 - 12)

1. "--- align broadcasting system with the democratic values of the constitution and to enhance and protect the fundamental rights of citizens". (preamble)

2. "Acknowledging that the South African broadcasting services are owned and controlled by South Africans". (preamble)

3. "--- ensure plurality of news, views and information ---". (objective)

4. "--- ensure that broadcasting services are effectively controlled by South Africans". (objective)

5. South Africans are "stakeholders" in SABC (according to SABC)

B. Practice

Centralised (political) control:

1. "--- the minister has the ultimate responsibility to fulfil certain obligations relating to use, protection and access to broadcasting resources" (Preamble to Chapter 11 p12).

2. "--- the minister is ultimately responsible to develop policy that is required from time to time". (Preamble to Chapter 11 p12).

3. "--- the state upon incorporation, holds one hundred percent

of shares of corporation" (Charter of Corporation par.7(8) p16).

4. "--- strive to make services available to South Africans in all the official languages as circumstances permit" (Public Broadcasting Service par. 10(1;) (a), p18).

Summary: some critical questions

· The power and authority of the Minister vs the power and authority of a transformed and representative SABC Board and IBA?

· Should the state be the only shareholder of the corporation, or should provision for e.g. different language communities be made?

· Should services be made available to all official languages (only) as circumstances permit, or does the public broadcaster have an obligation to the people of South Africa in this regard?

· Should the Advisory Board to the Minister (or the SABC Board) not be representative of the major cultural bodies?

· In the light of technological advances: Why not make provision for the concept of a geographic as well as other types of communities?

ON A PLANNED BUT DEMOCRATIC BROADCASTING SYSTEM

A. South African comments

· "The RDP commits the Government to freeing the airwaves by restructuring the state monopoly in broadcasting into a broadcasting dispensation offering choices in services, content and ownership".

Minister Jay Naidoo in a Foreword to Green Paper, Nov. 1997

· On the role of Mr Zwelakhe Sisulu (and the new Board of the SABC) in transforming the SABC from "a state broadcaster into a truly representative public service broadcaster": 'In the process he not only turned the SABC around, he transformed it from a polecat of the world into the leading public service broadcaster on the African continent."

SABC Intercom 6 - 19 August 1998, p.11

· On the Broadcasting policies of the Past:

Until recently the South African broadcasting system functioned as one of the most politicised broadcasting systems in the world."

Green Paper, Nov.1997, p.3

On the socio-economic context of public broadcasting:

This inequitable allocation of resources undermines the quality of the eleven official languages of the country... The situation is compounded by the fact that while services in English increase with the introduction of new services, a major part of South African society does not use English as a language of communication and interaction in daily life."

Green Paper, Nov.1997, p.8

B. Social-scientific comments

· "... the spirit of the times and the logic of new communication technology both seem opposed to any extension of new control over communication."

Denis Mc Quail . Mass Communication, 1987; p.13

· On the responsibility of "radio management" "The great problem... to agree on a method of allotting time to all representative opinions and tastes. Now it must be planned in the spirit of fair play, ... by open discussion rather than by unseen controls. " (Italics ours)

Karl Mannheim : Freedom, Power, and Democratic Planning, 1950, p.137

Telkom

TELKOM'S SUBMISSION ON THE BROADCASTING BILL (B94-98)

This submission is made by Telkom SA Limited (Telkom) to the Portfolio Committee on Communications of the Parliament of the Republic of South Africa.

Telkom is grateful to be given the opportunity to make this submission.

1. INTRODUCTION

The Broadcasting Bill addresses the issue of licensing broadcasting and broadcasting-related activities.

The Bill addresses the current environment both in terms of the already regulated services, such as the single channel broadcasting and signal distribution services, and the already existing, but as yet unregulated, services such as multi-channel services broadcast by satellite.

The Bill also attempts to make provision for future developments, such as for instance cable television and multimedia, foreshadowing the convergence between broadcasting and telecommunications.

Telkom's comments on the Bill will focus on the following main areas:

· the nature and scope of broadcasting services,

· the nature and scope of signal distribution services,

· the special characteristics of multi-channel services in relation to the above.

2. BROADCASTING SERVICES

2.1 Telkom understands that, in terms of the definition given in section 1 of the Bill, read in conjunction with section 4(2), a broadcasting services consists in the creation or packaging of television or sound material in a form suitable for distribution to customers, including those activities ancillary to it, such as for instance the soliciting of advertising, or the obtaining of rights to existing material..

2.2 Telkom broadly agrees with the definition of broadcasting service given in the Bill. However, it proposes the substitution of certain terms in the definition, as further discussed below, which in Telkom's opinion would assist in providing more clarity and certainty.

2.2.1 The use of the term "that delivers . . ." may create confusion between broadcasting and signal distribution. While the broadcast service is provided when delivered to a customer, the process of delivery is more properly one of signal distribution. The same problem is found in the defined term "local delivery service", for which an amendment is also proposed.

2.2.2 The use of the term "programmes" may be unnecessarily restrictive as it is conceivable that "unprogrammed" broadcasting may take place. Therefore, the corresponding terminology used in the BA Act is considered preferable.

2.2.3 The use of the term "person" does not convey the essence of broadcasting having a wide audience simultaneously receiving the broadcast. In fact the definition is careful to exclude "on demand" services. Therefore, the corresponding terminology used in the IBA Act is considered preferable.

2.3 The concept of multi-channel broadcasting service is not well captured in the definition of broadcasting service. While "multi-channel distribution service" is defined, the definition is more relevant to signal distribution than to broadcasting. Telkom proposes that a separate definition be provided for multi-channel broadcasting, consistent with the definition of broadcasting service but that captures the nature of a multi-channel service.

2.4 Telkom is of the opinion that the Bill intends to make provision for technological developments such as the convergence of broadcasting and telecommunications and the multi-media phenomenon. Telkom, however, believes that this area still requires much study and investigation. Telkom therefore suggests that legislative provision in this regard be deferred to after the consultative processes envisaged in the White Paper, and that the distinction between telecommunications and broadcasting be retained at this stage.

Telkom believes that the distinction is extremely important. A telecommunications service is essentially a bi-directional point-to-point or point-to-multipoint service, whereas a broadcasting service is the uni-directional broadcasting of television and sound material intended for the public, regardless of the fact that the same technology may be used to provide the different types of service.

Many large companies, for instance, use video conferencing networks for distance training of their employees. Such application is defined as a telecommunications Value Added Service.

2.5 The text of Telkom's proposed amendments in regard to the above is provided in paragraph 5 hereafter.

3. SIGNAL DISTRIBUTION

3.1 Telkom understand signal distribution to be the technical process of delivery of the material provided by the broadcaster to the target audience. This is essentially a telecommunications process.

3.2 Signal distribution is not defined in the Bill, and is omitted from the list of terms explicitly incorporated from the BA Act. Telkom proposes that the relevant definitions in the IBA Act be recognised. This would then suffice for any signal distribution for single-channel broadcasting services, while the existing definition of "multi-channel distribution service" would cater, with minor amendments for multi-channel signal distribution services.

3.3 The text of Telkom's proposed amendments in regard to the above is provided in paragraph 5 hereafter.

4. LICENSES

4.1 Telkom believes that it is of fundamental importance that a clear distinction be made between the various types of licences. Telkom believes that the Bill, save for minor inconsistencies of terminology adequately caters for the various classes of single-channels service licences. However, Telkom believes that the treatment given in the Bill to the licensing of multi-channel services may lead to serious disputes as to the legislative intention in this regard. In particular, Telkom believes that the distinction between broadcasting and signal distribution licences, both in the single-channel as in the multi-channel services be clearly delineated.

5. PROPOSED AMENDMENTS

Telkom respectfully suggests the following amendments to address the issues discussed above.

5.1 Section 1: Definitions and interpretation

In the light of the substantial revision to the term "broadcasting service" in sub section 1 (iii) it would be preferable the term be deleted from the list of definitions in section 1(i) derived from the IBA act. In turn it would be preferable if the term "signal distribution" were added to the list of definitions derived from the IBA Act with the meaning assigned thereto.

1. In this Act, unless the context otherwise indicates, Authority, broadcasting, broadcasting licence, broadcasting licensee, [broadcasting service,] community broadcasting service sound broadcasting service, signal distribution, sound radio set have the meaning assigned thereto in the IBA Act, and -To address the issues discussed in paragraph 2.2 above it is suggested

that the definition of "broadcasting service" be amended to read-

(iii) "broadcasting service" means a service that [delivers] consists in the broadcasting of television [programmes to a person] or sound material to the public or sections of the public or to the subscribers to such service having equipment appropriate for receiving that service, [whether the delivery uses] irrespective of the means of signal distribution used, including but not limited to radio frequency spectrum, cable, optical fibre, satellite or a combination of those means, to make the service available to the end user but does not include-

(a) .......

(b) a service that makes [programmes] television or sound material available on demand on a point to point basis including a dial up service; [and]

(c ) Internet and associated services; and

[(c)] (d) a service or a class of service that the Minister

(iv) .......

(xv) "multi-channel content distribution service" means a service which [transmits] makes available more than one broadcasting service at the same time, [by means of radio waves or telecommunications] in a packaged format, to a signal distributor for simultaneous transmission to end users;

(xvi) "multi-channel signal distribution service" means the signal distribution service specifically provided to multi-channel content distributors;

[(xvii)](xviii) "old Corporation means ........ "

{ renumber all sub-sections from (xvii) onward}

Telkom believes That the suggested amendments to the definition of broadcasting service allows for a clear distinction between broadcasting services, signal distribution services, and telecommunication services which the services described in sections (a) (b) and (c ) of sub-section (iii) are part of.

Telkom also believes that the intention of the Bill is to treat multi-channel distribution as a service distinct from both existing broadcasting services and signal distribution services. The suggested amendments to multi-channel service definitions are intended to allow for a clear differentiation of multi channel distribution from other broadcast services.

It would appear that the term "local delivery service" refers to a type of signal distribution which is limited in its geographical reach. This is however, not clear. If this interpretation is correct, it would be preferable if the definition were made more specific.

5.2 Section 4: Broadcasting Licences

4. (1) Any person who intends to provide either a broadcasting service[, including] and/or signal distribution services, inclusive of the provision of multi channel distribution services, whether satellite or terrestrial, which offer [programming] television or sound material to the public from within the borders of the Republic, is required to obtain a licence or authorisation in accordance with the conditions which the Authority may determine from time to time.

(2) For the purposes of this Act, [a broadcast] the term broadcasting service [means] shall include any activity, [which provides a service which] a constituent element of which is the provision of the following services -

(a) [has] the provision of a signal of packages of signals receivable in South Africa;

(b) [acquires] the acquisition of programme rights for South Africa;

(c) [solicits] the solicitation of subscribers or advertising or [activates and deactivates] the activation or deactivation of the decoders of South African subscribers.

It would be preferable if the word "incidentally" in the third line of subsection 4.(3) were to be defined in a manner that would allow for the determination of the parameters of the term.

5.3 Section 5: Classes of Licences

5. (1) ......

(2) .......

(a) .......

(b) .......

(c) satellite-free-to-air radio broadcasting service;

(d) satellite-free-to-air television broadcasting service;

(e) satellite-subscription television broadcasting service;

(f) terrestrial-subscription television broadcasting service;

(g) [direct-to-home delivery service, including multi-channel satellite distribution] multi-channel content distribution service;

[(h) local delivery service, including local multi-point distribution systems;]

[(i)](h) cable television subscription service.

Telkom suggest the amendment of sub-section 5(2)(g) as direct-to-home is in fact synonymous with satellite broadcasting, and to refer specifically to multi-channel broadcasting licences, regardless of the signal distribution system used. The deletion of sub-section 5(2)(h) is suggested on the understanding that local delivery is signal distribution.

Telkom is also of the opinion that the new proposed category of Low Power Sound Broadcasting Service in the IBA Act is in the nature of free-to-air radio broadcasting, and therefore included in 5(2)(a). It is suggested that the proposed amendment of the IBA Act to include this additional category may not be necessary.

5.4 Section 7: Incorporation.

7. (1) .......

(6) The Board of the old Corporation [may] shall be required to promptly comply with every direction issued under subsection (5).

5.5 Section 18: Rights and Obligations

18. (1) ........

(2) Notwithstanding anything to the contrary contained in the IBA Act, or any other law, the Corporation is entitled, against payment of the annual fees (if any), which the [Authority] relevant authority may from time to time determine, to be issued of any licence contemplated in subsection (1).

This amendment is suggested on the basis that SATRA issues licences under the Telecommunications Act.

5.6 Section 27: Objectives

27. (1) .......

(7) Commercial subscription broadcasting services may not

5.7 Section 28: Subscription television service.

28. (1) As soon as possible after the promulgation of this Act, the Authority must conduct an inquiry in terms of section 28A of the IBA Act, into the economic feasibility of the provision of [more than one] an additional subscription television service and make known its finding by notice in the Gazette.

5.8 Section 29: Community broadcasting services

29. (1) ......

(2) The licence of a community broadcasting service must always be held by a licensee and may not be ceded, assigned or transferred to any other party except with the prior approval of the Authority.

5.9 Section 31: Objectives of Signal Distribution.

31. (1) All signal distribution service providers, whether providing

services by means of terrestrial frequencies, satellite

(2) The signal distribution sector must -

(a) ........

(b) provide universal access by all South Africans to [broadcast and multimedia} broadcasting services.

The amendment is suggested because Multi Media service currently falls within the realm of telecommunications service provision in terms of the Telecommunications Act.

5.10 Section 32: Multi Channel Distributors

32. (1) Multi-channel signal distributors

(2) All broadcast services to be distributed by the multi-channel signal distributors must [hold licenses issued] be licensed by the Authority.

(3) Multi-channel signal distributors may carry other signals, domestic or foreign, [upon approval by the Authority] if licensed to do so by the competent authority.

The amendment to sub-section 32(3) is required where the "other signal" constitutes telecommunications, which needs to be licensed by the telecommunications regulator.

Appendix 4: South African Catholic Bishops Conference

South African Catholic Bishops' Conference

Oral Submission to the Portfolio Committee on Communications on the Broadcasting Bill [94 – 98]

1. The Catholic church attaches great value to the instruments of social communication, particularly broadcasting which is the most widely accessible means of social communication in our country. In a sustained way, broadcasting services provide people with a grasp of public events and affairs. As a result, members of society can more actively promote the common good and all can more appropriately contribute to the development of the whole human community. [Decree on the Instruments of Social Communication (5) of the Second Vatican Council, 1963]

2. The Southern African Catholic Bishops’ Conference therefore welcomes the Broadcasting Bill as a valuable legislative contribution towards safeguarding, enriching, and strengthening the cultural, political, social, economic, and spiritual development of South African persons and communities, in the interests of the common good of our society.

3. We are pleased especially to note the inclusion of the "strengthening (of) the spiritual and moral fibre of society" in the first stated object of the Bill [2(a)] and again in the principles underlying the broadcasting system [3(1)(b)]. This reflects a recognition that the authentic development of human society cannot be reduced to only a "technical" issue, but also necessarily includes questions of purpose and meaning in personal life. When persons and communities do not recognise a rigorous respect for the spiritual, cultural, and moral requirements of human life, based on the dignity of the human person and the proper identity of each community, then a certain level of human well being, an abundance of technical resources, and availability of goods will all prove unsatisfactory, disillusioning, and in the end inadequate. The promotion of social development as such, without the promotion of the spiritual and moral development of persons and communities included, would be empty of its full content and would be an act of betrayal of the people whom development is meant to serve. [cf encyclical letter On the Social Concern of the Church, Pope John Paul II, 1987]

4. Mindful of the chairpersons request that submissions focus on points of contention in the Bill, we turn now to a few specific concerns regarding religious broadcasting.

5. The Catholic church is one of the religious groups which have applied for a radio broadcasting license. We are deeply concerned that the ‘community of interest’ category of broadcasters has been suppressed in favour of only a geographical determination of a community in this Bill. While we fully understand and support the need to strengthen and consolidate geographically-defined community broadcasting in the interests of social unity, community development, and the promotion of a common South African identity, we feel that Section 29 dealing with community broadcasting provides no explicit indication that the broadcasting needs of religious communities has been taken into account.

6. While we have been encouraged by recently reported assurances by the Minister and the Department that the Bill does not intend to prejudice religious broadcasting, and that the Department is open to expanding the definition of community broadcasting to include stations that "meet any need of the community", we are still left with great uncertainty about whether the section on community broadcasting in fact guarantees the availability of licenses to be granted by the IBA to particular religious community broadcasting services.

7. Indeed some of the provisions of Section 29 are confusing to us, and we urge greater clarity in their formulation. Religious groups were previously granted licenses under a ‘community of interest’ category of broadcasting service. If religious communities are now to be granted broadcasting licenses under a primarily geographically defined community category, does this mean that they will not be allowed to operate national stations? Further, does it mean that religious broadcasting will have to be accommodated only within other licensed community broadcasting stations with no particular religious affiliation? Or does it mean that all religious communities in a geographically defined area would have to operate under only one licensed service?

8. While we fully acknowledge and encourage the need for geographical community broadcasting to promote community cohesion, identity, and development, we also submit that this must be balanced by the legitimate need for religious communities to find expression, promotion, and protection in broadcasting, as well as the need to promote freedom of expression and association, according, of course, to the values and limits of our country’s Constitution and the other provisions of this Bill. Indeed the White Paper on Broadcasting Policy recognised that "religious stations are a dominant component of the community sector, reflecting the importance of religion to South Africans across the full spectrum of society" (4.1).

9. We ask for these issues to be clarified in the Bill, either by including an additional clause in Section 29 to clarify the status of and availability of licensing to religious community broadcasting services, or by including an additional category of broadcasting service in a separate section, under which religious broadcasting stations may be granted licenses.

10. There is a further need for greater clarity in some of the terminology and expressions used in section 29. We refer specifically to Sub-section 29(3) regarding the election of a Board of management of a community broadcaster by "all members of the community", Clause 29(6)(c) with respect to confusion about the referent of the descriptive words "local and international", and the clumsy wording of Clause 29(6)(d) which refers to "the development of a sense of common purpose with democracy and improve quality of life".

11. Separately, we urge the inclusion of "religion" or "religions" or "religious", as appropriate, in all references to diversity of cultures and languages in the Bill [Clauses 2(b), 3(1)(a), 10(1)(b), 10(1)(e), and 21(6)(c) refer] in accordance with the Constitution of South Africa which gives religion, culture, and language equal status (185 & 186). Religion and culture are not interchangeable terms. Indeed there are South Africans of diverse cultural backgrounds who adhere to the same religion, and there are people of diverse religious backgrounds who come from similar cultural backgrounds.

12. While religion has in the past, and, in some instances, still does contribute to social conflict, disunity, and tension, the letter and the spirit of the Constitution of South Africa and the provisions of this Bill preclude the use of religious broadcasting as a means for promoting such disharmony in society. We urge the Committee to harness the extensive and deep-rooted impact of religions towards promoting the full human development of all human persons and communities in the interests of the common good, by taking serious cognisance of our comments.

13. We wish the Committee wisdom and good judgement in its further deliberations.

Bishop Kevin Dowling CSsR

Episcopal Director

11 September 1998

Appendix 5: Independent Forum for Religious Broadcasting

Independent Forum for Religious Broadcasting

INDEPENDENT FORUM FOR RELIGIOUS BROADCASTING

WHITE PAPER ON BROADCASTING POLICY

Representation from Independent Forum for ReIigious Broadcasting

1.On behalf of South Africa's faith community the IFRB is appreciative of the several references to religious broadcasting in the White Paper.

2. Two statements seem to set the tone. These are:

2.1 "The majority of responses to the Green paper reiterate the need for the broadcasting system to operate in the interest of the people of South Africa through supporting the following areas: .... Strengthening the spiritual and moral fibre of society" (1.3.1).

2.2 "Religious stations are a dominant component of the community sector, reflecting the importance of religion to South Africans across the full spectrum of society" (4.1).

3. In some places this important role of religion in our society is carried through in the wording in the White Paper. Examples of this are:

3.1 It is said with regard to Public Interests:

"Access to choice and diversity of choice includes access to a diverse range of language, cultural, religious and regional programming" (1.3.3).

3.2 The Board of the S.A.B.C. and the Minister are jointly responsible for ensuring that "the needs of language, cultural and religious groups are duly taken into account in the provision of public broadcasting services" (1.3.5.1 mentioned twice).

3.3 "Private broadcasting has a key role to play in the forging of a new South African identity. A healthy and vibrant broadcasting industry can play an important role in building nationhood by reflecting the rich cultural, language, religious and regional diversity of South Africa" (3.1).

3.4 "It is the shared responsibility of the Minister and the I.B.A. ... to . .. ensure that private and community broadcasting services also cater for the needs of language, cultural, religious groups" (11.2.1).

4. Given this responsibility for ensuring space for the religious dimension in all the various sectors of broadcasting it would seem logical that religion should be mentioned in other contexts where it is absent. These are pointed out as they may bear upon the wording of the final legislation. The suggested additions are the word(s) underlined in each of the following:

4.1 Private broadcasters are expected to contribute towards "the production of South African programme material, promotion of all languages and the multi-faith and multi-cultural nature of our society" (Executive summary chapter THREE).

4.2 "Broadcasting can make an inestimable contribution towards the spiritual, social, political and economic development of South Africa." (Preamble).

4.3 "The South African constitution guarantees a number of fundamental rights, which should be taken into account in determining broadcasting policy and its regulation. Among these are: ...

· Choice and diversity

· The multi-faith nature of SA and the promotion of the rights of religious groups (1.3.2).

4.4 'Regulating the used radio frequencies in the public interest also stems from other considerations, including: . . That in its social, cultural, religious and economic dimensions the public interest is served by the provision of broadcasting services to the entire range of the diverse interests in the South African community" (1.3.3).

4.5 "The South African broadcasting system in contributing to unity should serve to safeguard, enrich and strengthen the cultural, political. social, economic, spiritual and moral fabric of South Africa" (1.3.3).

"The Government's responsibilities for matters relating to broadcasting that are of significant religious. economic, cultural and social importance to the people of South Africa" (1.3.5.2).

"This calls for a deliberate policy to ensure that the South African broadcasting system offers South African programmes about the conditions, life styles, behaviour, religion, and cultural heritage of all South Africans" (1.3.8).

4.8 "Policy should encourage the presentation of entertainment, religious, educational and informational programming from the South African perspective" (3.5.3).

4.9 The principal objectives laid down for the SABC in its statutory charter will include:

A responsibility to build up the spiritual and moral fibre of society through the religious dimension in its programming" (2.2).

4.10 The community broadcasting sector has an important role to play in nation building, the recognition of the diverse range of cultures, religions, needs and aspirations ..." (4.3).

The failure to include religion in the above contexts could create the impression that religion, which is placed on an equal footing with culture and language in the Constitution (185-86), is being played down in the proposed broadcasting legislation.

There are certain statements in the White paper which are a cause of concern to the whole faith community or to some of the religious groups constituting it. These are:

5.1 In several places it is implied that the geographical factor will be the only criterion for licensing community radio stations (Executive summary. Chapter four; 4.2; 5.3.2). Does this mean that the community of interest category under which radio stations run by religious groups have been granted licenses will fall away? If this is the case, are radio and TV stations run by religious groups going to be accommodated under some other category? If so, which category? The legal possibility of such religiously owned and operated broadcasting stations exists in many countries. Should there be any thought of doing away with such a legal possibility in South Africa, the faith community should be widely consulted. Indeed, even if the present legal possibility under community broadcasting is to be changed, it should only be done after consultation with the faith community.

5.2 Article 4.2 on The Geographical Community, ends with the obscure sentence:

"The structure and mandate of the religious services will be redefined to operate within the terms and conditions of the geographically founded community category. Does this mean that religious groups will be able to own and operate religious broadcasting stations only on a limited geographical basis, that is. not nationally? Or does it mean that religious input will have to be accommodated within the programming of a community broadcasting station which has no particular religious affiliation? If the latter is the case. then there is urgent need for the consultation mentioned above.

5.3 With regard to 'the balance of licensees" in the community broadcasting sector (4.1), what are the implications of the "secular approach" mentioned? Does it contradict the provision of 4.2 referred to above? If it is to be the controlling criterion governing the provision of 4.2 discussed above, so that religious input would be tolerated on a small scale as a sop to the faith community, then such a situation is unacceptable. Again the faith community would need to be consulted before such an ideology is reduced to legislation. In view of the specific provision made for religion in the statements quoted in sections 2 and 3 of this representation, such an interpretation is unlikely, but the meaning of the phrase quoted above does need clarification. If religion is so important to the people of South Africa, the Government should be concerned to promote and increase its share in broadcasting, and not immediately follow the statement of its importance with a convoluted sentence which can suggest curtailing it.

6.1 It is important to the faith community that provisions concerning religious broadcasting in the forthcoming legislation be couched in terms which prompt broadcasters to bring the religious dimension of life to bear on a broad spectrum of human and moral issues as well as providing for specifically "religious" devotional and informational programmes.

6.2 As the White Paper contains no clear statement of principles with regard to religious broadcasting, the IFRB hereby offers its services to the Government to co-operate in formulating a comprehensive religious broadcasting policy.

JULY 7 1998

On behalf of The Independent Forum for Religious Broadcasting

BISHOP PETER LEE

CHAIRMAN