Article 1 (This is the first article in a five-part series on the draft broadcast legislation.)

Report from the Joint Committee on Radio Monopoly, Non-Partisan Boards and Broadcasting

By Christopher A. Nascimento

The Government has released for public consultation, a draft of a Broadcasting Bill for public consultation, which follows from the Final Report of the Joint Committee on Radio Monopoly, Non-Partisan Boards and Broadcasting Legislation (6th December, 2001) which sets out a framework for Broadcast Legislation. The Report defines certain policy positions which are expected to be followed and issues a number of quite specific directives for the establishment of the National Broadcasting Authority, its expected responsibilities and functions, its composition, its appointment and its organisational structure.

While, the Report, I believe, provides excellent guidelines, it is not a comprehensive and complete set of drafting instructions, but does express important agreement between representatives of the government and main opposition in Parliament on certain fundamentals:

1. “A free and unfettered mass media are indispensable to democratisation and development”;

2. the legislation “must be consistent with the Guyana Constitution and international conventions and best practices”;

3. the legislation “should provide for a system incorporating both publicly and privately owned commercial radio and television”; and

4. that Guyana’s broadcasting system will be administered by an independent and autonomous authority empowered by the relevant legislation to issue public, commercial and community radio and television licences, enforce regulations, monitor compliance and increase public awareness, among other functions”.

The Committee’s Report also presents a set of general principles and policies to be reflected in the Legislation which are listed under the heading Main Objectives at III 1 - 16. These principles generally conform to precedents well established internationally in the broadcast legislation of democratically governed countries, but are somewhat confused in their presentation between the defining of the tenets for broadcasting in the public interest and in stating the functions, power and duties of the Authority.

The Committee’s Report also sets out under A Broadcasting System for Guyana, at IV, its recommendations for the specific system of broadcasting which the legislation should define and incorporate:

* state owned (public broadcasting)
* privately owned commercial broadcasting
* community broadcasting services.

The Committee’s Report amplifies the services which it recommends these systems should be providing and the obligations which commercial broadcasters must meet to justify their licences in serving the public interest, convenience and necessity. While it seems appropriate to define somewhat separate functions and responsibilities for public and private broadcasting, it is, however, open to question whether there should be any difference between their obligation to satisfy the public interest. If anything, the state- owned licencee should be held to a higher standard of public performance

Community broadcasting, in the Committee’s view, unusually, is required to be “non-profit”, but serving a specific and defined “community interest”. The Committee does not explain whether, therefore, “community broadcasting” is expected to be state-owned and subsidised and, therefore, part of the “public broadcasting system”. Nevertheless, it is difficult to envisage a good reason why private commercial broadcasters should not be issued licences expressly for the purpose of providing rural community broadcasting for profit, yet serving the specific interest of the community within its prescribed broadcast parameters.

The Committee’s Report also acknowledges the need for legislation to prescribe codes of conduct to be observed as a condition for holding a licence and sets out its recommendations under “Conditions governing licencing” at VI B 3. In doing so, the Committee, however, recommends conditions with regard to spectrum use, but, in its Report identifies the role of the National Frequency Management Unit, currently responsible for managing the spectrum, as an “unresolved issue”. This, as we shall see later, is dealt with in the Draft Bill in a manner that is almost certainly bound to be contentious.

The Committee’s Report proposes that a National Broadcasting Authority be appointed by the President from persons selected by The Standing Parliamentary Committee on Appointments and be a maximum of five members and not less than three and be accountable to the National Assembly. The fundamental issue here is the appointment of an Authority which will be publicly accepted as truly autonomous and functionally independent from political direction as well as being representative of mainstream civil and community interests in the society.

In a seminar attended by the President held with broadcasters on 28th June, 2000, there was consensus only on the establishment of an autonomous Authority, but varying views on its method of appointment and composition.

A significant number of the broadcast community at the seminar favoured a Broadcasting Authority appointed by the President from a list of names submitted by the National Assembly and having at least two-thirds support of the Assembly. Other proposals included that the President appoint the Authority from names submitted by the parliamentary opposition, the private sector, the trades unions, consumer associations and government.

The Committee’s Report recommends consulting Canadian Broadcasting Legislation as a useful guide to drafting certain aspects of the legislation, namely, the general powers, procedures, rules and functions of the Authority and the application of sanctions for offences by licensees.

It is, therefore, interesting to note that Commonwealth country precedent set by the UK, Canada and Australia for the appointment of the Broadcasting Authority, places this responsibility unequivocally in the hands of government, but, in practice, only after extensive consultations with the political opposition and representatives of civil society. In the UK, the responsibility for appointing The Independent Television Commission rests with The Secretary of State, (now subject to the introduction of a Bill establishing an Office of Communications) in Canada the Governor in Council and in Australia the Prime Minister.

The question of the duration of appointments to the Authority, not addressed by the Committee, is also critical for the maintenance of autonomy. Appointments to the Federal Communications Commission (FCC) of the USA, for instance, exceed the period of presidential elections to insure against political influence on the composition.

The question of whether the Authority is full-time or part-time, also has significance for the independence, quality and qualifications of the Authority’s members.

The Committee’s Report suggests that the Authority’s membership, other than the Chairperson, be on a part-time basis. It is often the case that all the members of the Authority be part-time but that the Authority is headed by a professional Chief Executive Officer who serves as an ex-officio member of the Board. This is the model I would recommend for Guyana.