Regulation in Broadcasting

III

How Regulation Came About

Regulation of broadcasting began while the only medium so far developed was wireless telegraphy, which is capable of transmitting Morse code but not speech or music. In Britain, the government saw a need to control the use of the airwaves as early as 1904, when the Wireless Telegraphy Act was passed. That was 16 years before radio broadcasting began as a national service, with the formation of the British Broadcasting Company (later to become the British Broadcasting Corporation, BBC).

In the United States—which, along with Britain, largely pioneered broadcasting—the first legislative measure was the Wireless Ship Act of 1910, which required seagoing passenger ships to carry wireless equipment and operators. Two years later—the year in which distress messages received in the United States from the sinking Titanic demonstrated the potential of radio as a lifeline—an international conference was held in London to agree on regulations for wireless communication. In the years since, international agreement on the sharing of frequencies has been the basis on which national decisions are made.

As broadcasting spread to other countries, a wide range of regulatory systems grew up. At one end of the range is direct state control. In effect, this usually means the use of broadcasting as a tool of government. The Nazi propaganda minister Paul Joseph Goebbels first showed what a powerful tool the mass media (then mainly radio and the cinema) could be in promoting a ruling ideology.

At the other end of the range is the light regulation applied in the United States. Following a failed attempt by Congress in 1918 to make broadcasting a government monopoly, the industry developed on the basis of private ownership, with finance from commercial advertising. Even so, the guarantee of free speech in the American Constitution did not mean that broadcasting was able to proceed unchecked.

In 1927, when the number of radio stations was growing rapidly, the American federal government found it necessary to intervene because of the widespread interference caused by the uncontrolled use of frequencies. A Federal Radio Commission (FRC) was set up to regulate radio broadcasting in “the public interest, convenience, and necessity”. The legislation gave control of the radio waves to the federal government and enabled the FRC to license stations and regulate the technical aspects of broadcasting. A few years later (in 1934) the powers of the FRC were expanded to cover wire communication and it was renamed the Federal Communications Commission (FCC). Nor did programme content remain unaffected; for instance, in 1949 the FCC introduced the “Fairness Doctrine”, which required balanced treatment of important controversial issues.

A different pattern of regulation was adopted in Britain. When the British Broadcasting Company was transformed into a public corporation in 1927 it was given a monopoly of the airwaves. It was funded not by advertising but by licence fees levied on receiving sets (originally radio sets, now televisions). An “arm’s-length” relationship with the government was devised. This made the BBC accountable to Parliament, but enabled it to be editorially and managerially independent. When commercial broadcasting began in Britain in 1955 (initially television, later radio as well), the same principles of regulation were applied.

These principles were founded on the concept of public service broadcasting on which the BBC had been built. This meant that though commercial television was funded by advertising, it was subject to obligations concerning impartiality, programme range, standards of taste, and so on, which were similar to those observed by the BBC. The Broadcasting Act (1990) loosened the constraints on commercial broadcasters, but the industry in Britain remained highly regulated. Besides the three bodies directly responsible for regulation—the Board of Governors in the case of the BBC, the Independent Television Commission for commercial television, and the Radio Authority for commercial radio—there was now a statutory complaints body (the Broadcasting Standards Commission), which dealt with questions of fairness, privacy, violence, sex, and taste. The broadcasters were also answerable on competition matters to the Office of Fair Trading.

IV

The Future of Regulation

In 1986 a committee of inquiry set up by the British government (the Peacock Committee on Financing the BBC) looked forward to a time of “consumer sovereignty”, when there would be so much choice available on television and radio that there would be no need for special regulation of broadcasting; the situation would be similar to that in print publishing. Since then, techniques of digital compression have opened up the possibility of enough television and radio channels to satisfy all reasonable demands of viewers and listeners, so undermining the argument of spectrum scarcity, while the multiplicity of channels, many of them beamed from abroad, may make it impracticable to control programme content. Already, satellite broadcasting across frontiers is creating difficulties for national governments.

So far, however, the growth of broadcasting services has generally been seen as creating new regulatory challenges rather than weakening the argument for regulation. Within the European Union, for instance, the economic and cultural implications of transnational broadcasting have prompted efforts to protect the indigenous broadcasting industry. Concern is also widely felt about the growth of adult channels transmitted by international satellite systems.

As a result of this and other developing concerns, in April 1995, at a conference in Malta, a new association of some 50 broadcasting regulators across Europe was set up. Called the European Platform of Regulatory Authorities (EPRA), it seeks to serve as a forum for the discussion of regulatory issues arising from technical and programming developments that are common to all countries.

In the United States the Federal Communications Commission remains the sole regulator with a remit much as when the Commission was set up in 1934. There are now 50 States (two more than in 1934) to be covered and recent technical developments, like cable and satellite television, and mobile phones, have added to the FCC's responsibilities.

It is in the United Kingdom that one of the most radical changes in media regulation has taken place. At the turn of the century the Labour government sought to maximize revenue from the burgeoning electronic communications field by both unifying and easing regulation right across the industry. The Office of Communications Act 2003 paved the way for a new regulator, OFCOM, which was to have a remit even wider than that of the FCC. When OFCOM took up its responsibilities in January 2004, these combined the functions of the Broadcasting Standards Commission, the Independent Television Commission, the Office of Telecommunications, and the Radio Authority. It also took on the broadcasting aspects of the work of the Office of Fair Trading.

OFCOM exercises these responsibilities under the terms of the Communications Act 2003. These require it to achieve the optimum use of the electro-magnetic spectrum in the UK, as well as ensuring plurality of providers of services, and the protection of members of the public from “the inclusion of offensive and harmful material” in broadcast services. With the coming of OFCOM, the emphasis of broadcast regulation in the UK shifted from content to competition and the market economics of broadcasting.

The British Broadcasting Corporation (BBC) remains largely under the control of its own Board of Governors but some aspects of its non-programming activities (commercial Internet provision, transmission etc.) now fall under OFCOM.

Given the important place that television, radio, and other forms of communication increasingly occupy in most people’s lives, it seems unlikely that governments' desire to direct the use of these by regulation will diminish. Regulation of the media is likely to grow in both scale and complexity.

See also Media Law.