Guidelines for broadcasting regulation table of contents
Licensing Starting a licensing process
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- Licence conditions
- Coverage area
- Technical specifications
- Licence term
- Licence fees
- Programme format conditions
- Compliance with legal requirements, including secondary legislation
- Information requirement
5. LicensingStarting a licensing process5.1 Most countries have some sort of licensing or permit system in place for existing broadcasters, but if not, or it is intended to overhaul the existing arrangements, how should this be undertaken? 5.2 Although licensing should, ideally, be done in an orderly fashion, there are times when pragmatism dictates otherwise, for example when a new State is created. This was the case in Bosnia Herzegovina, in what was the former Yugoslavia. By the time the new state of BiH was created, unlicensed broadcasters had set up throughout the country. Spectrum was not being used efficiently, with major problems of interference. More seriously, many stations (both television and radio) were broadcasting programming which was seeking to inflame the ethnic hatred that had led to the long and bloody war. 5.3 The new broadcasting regulator in BiH tackled this problem first by issuing temporary licences to all existing broadcasters. This gave the regulator a legal basis for seeking compliance with programme standards, to stop the unacceptable hate programming. Then the regulator set out a system for issuing permanent licences, which resulted in many services losing their right to broadcast. But by placing matters within a firm legal framework, the regulator had the legal power – backed by the courts and the police if required – to enforce an effective regulatory system. 5.4 Fortunately it is rare for governments or regulators to find themselves in the position of a post-conflict State like BiH. More typical is a situation where broadcasting has been the preserve of a State-sponsored broadcaster, with perhaps additional services provided via satellite from abroad. But after time, interest is usually shown by either overseas or domestic companies to provide commercially-based television or radio. Perhaps also community groups and development agencies express interest in setting up local radio stations. It is at this point that a system of licensing becomes necessary. 5.5 For so long as it is only a handful of prospective services which are on offer, it is reasonable for the licensing process to be done on a first-come, first-serve basis. However, it is important to be clear about the basic licensing criteria and licence conditions from the outset in order to ensure that licensees are both responsible and understand their responsibilities. The basic criteria for eligibility to hold a licence will be discussed in the section on Ownership and Plurality. Licence conditions5.6 Before any licence is offered, the model licence should be written and published, setting out the basic conditions to which all licensees must comply. The licence is a legal document, which in effect sets out the contract between the regulator and the broadcaster. If the broadcaster does not perform according to the terms of the licence, the regulator is then in the position to consider what punitive sanctions to apply. All broadcasting licences should cover the following fundamental conditions: Coverage area5.7 What is the geographic area to be covered by the licence? If the licence covers only part of the country, care must be taken to ensure that it is clear which areas are not to be covered, to avoid unwanted competition with other neighbouring services. 5.8 The regulator may also wish to impose conditions requiring the licensee to be receivable by as many households as possible in the coverage area. This may be the case if the licensee is a public service broadcaster and is expected to roll-out coverage to the entire population. These are called ‘universal service’ obligations, a familiar concept in telecommunications, but also applicable in broadcasting. Technical specifications5.9 These may include details of the powers and directions for transmission required to avoid interference with adjacent broadcasters and other users of spectrum (alternatively, these may be set out in a separate spectrum licence, depending on the competencies and remit of the broadcasting regulatory authority). Technical specifications may also include requirements for picture and sound quality.Licence term5.10 The licence must set out the date by which the service should commence broadcasting, and for how long the licence will be in force. Sufficient time should be allowed between the award and the commencement of the licence. Licence renewal 5.11 If there is an automatic presumption that the licence will be renewed at the end of the term, this should be set out in the licence. 5.12 In order to establish a sound business base for the broadcasting industry, it is reasonable to assume that licences will be renewed, subject to satisfactory compliance with licence conditions and content requirements. The regulator must, however, leave enough time before the end of the current licence term to consider an incumbent’s position so that, if the licence is to be re-advertised, sufficient time is available to run a full licence application process. It is not in the interests of the audience or of broadcasters to drop a service with no replacement. Licence fees5.13 A fee payable on the award of a new licence is often charged. But in addition, all licensees should pay fees annually to cover on-going regulatory costs. This should be set out in the licence. This enables the regulator to seek to revoke the licence should the broadcaster not pay the licence fee (sadly, an all too regular occurrence). It is sensible not to set the fee in the licence or in legislation, but rather to permit the regulator to set fees on an annual basis (perhaps under Ministerial approval). This arrangement is more flexible, and can take account of rising, and lowering, regulatory costs over time. 5.14 An annual licence fee does not cover the costs of applying for a licence. In addition, all applicants for licences should be required to pay a one-off application fee to cover the costs of processing and awarding licences. The fee should be set high enough to deter time wasters, but not too high to prevent potential new entrants to the market. Programme format conditions5.15 The question of the degree of regulatory control over programme formats is discussed below. Whatever solution is appropriate, the licence should require the licensee to provide the service as described either as in the advertisement or tender, or as promised in the application. Compliance with legal requirements, including secondary legislation5.16 Broadcasters will be obliged to meet certain content standards in their advertising and programming. The overarching standards are set out in the Broadcasting Act. The licence should provide that broadcasters are obliged to meet the terms of the Broadcasting Act, together with any secondary legislation arising from that Act, and any standards Codes issued by the regulator. See the section on Content Regulation for further discussion. 5.17 If provisions from other statutes also apply (for example, laws on defamation, copyright, or privacy) it may be useful to remind licensees of their obligations in the licence. 5.18 The licence should also set out the conditions under which the government is entitled to direct the use of the airwaves, for example in times of war or emergency. Sanctions 5.19 The licence should set out what sanctions the regulator can apply for non-compliance with the conditions. The range of sanctions includes fines, suspension, shortening or revoking a licence. They are discussed in detail in the section on Content Regulation. 5.20 The right of the regulator to order the licensee to broadcast an apology or correction (see Right of Reply in Content Regulation) should also be set out in the licence. Information requirement5.21 The regulator will require broadcasters to provide certain pieces of information, either on a regular (quarterly or annual) basis, or from time to time. For example, programme logs may be required quarterly, and financial accounts annually. However, any proposed significant changes in ownership or management structure should be reported before the change occurs. The licensee should also be required to inform the regulator of any change of address or contact details. 5.22 It is fairly normal for all television and radio companies to be required to record all of their output, to retain these tapes for a period, and to hand over these recordings if the regulator requires them for monitoring or complaints-handling purposes. (See Monitoring in Content Regulation). This obligation should be included in the licence. 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