Broadcasters are held to a high standard of public
responsibility
April 19, 2008
Dear Editor,
In 2005 when the licence of CN Sharma’s television CNS
TV6 was suspended at the time of the flood disaster by
the Prime Minister, who was then the Minister
responsible for telecommunications, for what appeared
to be a deliberate attempt to make the President
appear contemptuous of the conditions of the flood
victims, I wrote at some length endeavouring to
provide information and explain what we should expect
of a licensed broadcaster.
It seems appropriate, given the suspension of CNS TV6
licence, to, once more, repeat much of what I said
then.
In every case the constitutional protection offered to
every citizen of freedom of expression has been
invoked on behalf of Mr Sharma. However, what we are
yet to understand, far less accept, in Guyana is that
the broadcaster is held to a much higher standard of
public responsibility in exercising freedom of
expression granted by his licence than is a newspaper,
printed publications or the ordinary citizen.
A broadcaster is granted a licence, in a democracy, on
the condition that he uses it to serve, to use the
language of the USA’s Federal Communication Commission
(FCC), “the public interest, convenience and
necessity”.
The broadcaster, in essence, is granted the privilege
of using the broadcast spectrum, to serve as a “public
trustee”, while benefiting from its commercial use
because he is being allowed the use of a limited
public resource, the broadcast spectrum.
The conditions under which the broadcaster must
function as a “public trustee”, are spelt out in the
licence and are governed by the regulations under
which the licence is issued.
In effect, the broadcaster who is granted a licence to
use the electromagnetic spectrum for commercial
purposes, is granted exclusive free speech rights
denied to others and, to justify this privilege, is
constrained to serve as a “public trustee” of the
airwaves.
Unlike the rest of the media, the broadcaster is bound
by statutory and regulatory obligations to serve the
public interest in a defined way which would abridge
the constitutional right of free speech which other
media and published speech enjoy.
There is no constitutional right to hold a broadcast
licence and monopolise a broadcast frequency to the
exclusion of others as some in Guyana seem to believe.
Where there are adequate broadcasting regulations, a
potential licencee must first justify at public
hearings by the regulating authority, his or her
qualification to be granted the right to a broadcast
licence.
In Guyana licenced broadcasters were, unfortunately,
given licences without hearings, without having to
establish their qualifications for a licence, without
any public justification for being granted the
privilege. Our broadcasters were granted licences
simply because they either first squatted illegally on
the frequency, or the government was persuaded to
grant them the licence.
The US Supreme Court has, as has every other Court in
the major democracies of the world, consistently
upheld the requirement that the broadcaster must serve
as a “public trustee” of the licence he holds and must
“conduct himself as a proxy or fiduciary with
obligations to present those views and voices which
are representative of his community and which would
otherwise by necessity, be barred from the airwaves”.
The Federal Communications Commission of the USA in
July 1960, issued a “Report and Statement of Policy”
which summarise the Commission’s powers over a
licencee’s programming and the responsibilities of the
broadcaster in this regard. These operational
guidelines should long ago have been applicable to the
granting of television broadcast licences in Guyana,
had not both the governing and opposition parties,
ever since we became independent, refused to agree to
a professionally drafted broadcasting act and
regulations to be implemented by an independent
Broadcasting Authority:
* The principle ingredient of the licencee’s
obligation to operate his station in the public
interest is “to make a positive, diligent and
continuing effort to determine the tastes, needs and
desires of the public in his community and to provide
programming to meet those needs and interests”.
* “The licencee, is, in effect, a “trustee” of the
public interest in the sense that his licence to
operate his station imposes upon him a non-delegable
duty to serve the public interest in the community he
has chosen to represent as a broadcaster”.
* “Broadcasting licencees must assume responsibility
for all material which is broadcast through their
facilities. This includes all programmes and
advertising material which they present to the public.
With respect to advertising material, the licencee has
the additional responsibility to take all reasonable
measures to eliminate any false, misleading or
deceptive matter and to avoid abuses with respect to
the total amount of time devoted to advertising
continuity as well as the frequency with which regular
programmes are interrupted for advertising messages”.
* “The broadcasters should consider the tastes, needs
and desires of the public he is licensed to serve in
developing his programming and should exercise
conscientious efforts to not only ascertaining them
but also to carry them out as well as he reasonably
can”.
* “Broadcast stations should not become the private
preserve of certain individuals or groups to serve
their special interests nor should they serve the
exclusive interests of certain social, economic,
political or religious philosophies or of particular
business enterprises”.
* “Broadcasters must have a wide range of discretion
and freedom of choice in deciding on their individual
programmes and are to be judged by the overall
operation, presentation and balance of programme
measured in terms of satisfying community needs”.
CN Sharma’s use of his broadcast licence and the
unique privilege it grants and his right to continue
to broadcast are, therefore, conditioned by the
regulations under which he is granted the licence and
which hold him to observe the standard accorded to a
public trustee of the frequency he is allowed to use.
If Mr Sharma or any other broadcast licencee
broadcasts material which violate the standards set as
a condition of the licence, the Constitutional right
of free speech does not of necessity, guarantee him
the right to continue to hold a broadcast licence.
The Amended Regulations made under the Post &
Telegraph Act (Cap 47:01) Section 63(5) governing the
granting of a licence issued for the operation of a
television broadcasting station contains the following
conditions amongst others:
(a) the licencee shall ensure that nothing is included
in programmes which offends against good taste or
decency or is likely to encourage or incite or to lead
to public disorder or to be offensive to public
feeling;
(b) the licencee acting reasonably and in good faith.
Shall ensure that any news given (in whatever form) in
the programmes of the licencee is presented with due
accuracy and impartiality; and
(c) the licencee shall ensure that due impartiality is
preserved by the person providing the service in
regard to matters of political or industrial
controversy or relating to public policy.
The Amended Regulations establishing the Advisory
Committee on Broadcasting defines the appointment and
composition of the Committee and its functions. The
functions include advising the Minister (at first it
was the Prime Minister and is now the President) “on
compliance with the terms and conditions of licences
or otherwise” and recommending “appropriate action” to
be taken and “including revocation of licence”.
It is the responsibility, therefore, of the ACB to
advise the Minister on the action which should be
taken if or when any licencee, in the opinion of the
ACB, fails to comply with the conditions of the
licence set out in the Amended Regulations of June 27,
2001.
The legislation does not empower the ACB to do
anything or take any action which is not within the
functions of advising the Minister, unless the ACB is
specifically directed by the Minister under Clause 23
B 4(c).
The Wireless Telegraphy Regulations of the Post &
Telegraph Act at Section (63) 5, Clause 26(1&2),
however, provides for the Minister to act without the
intervention or advice of the ACB to cancel or suspend
the broadcaster’s licence for a period up to 12 months
or more, if he considers that the broadcaster has
failed to comply with any of the Regulations under the
Act.
The President, therefore, certainly had the right to
act. Did Sharma fail to comply with the conditions of
the licence?
In making that judgment, the President will have taken
into account the fact that the country remains under
threat of the heavily armed criminals who have
massacred 23 people and are still at large.
Clearly, in these circumstances, broadcasting a threat
to kill the Head of State and then re- broadcasting it
on a number of occasions is wholly irresponsible and
could be said “to encourage or incite or to lead to
public disorder”.
The Constitutional protection of free speech does not
protect a broadcaster from losing his licence if any
of the conditions set out in the licence are
considered by the Minister to have been violated.
Broadcasters, however, regardless of the conditions
which require them to serve as “public trustee”,
remain entitled to the common law protection of
“natural justice” and there is no precedent in
broadcast law which denies the broadcaster the right
to a fair hearing prior to any punitive action being
taken by a regulator against him.
The President did give a hearing to Mr Sharma and his
attorneys prior to taking action to suspend the
licence of CNS TV6 for four months.
It’s unclear exactly what advice, if any, was given by
the ACB to the President. It’s also unknown whether
the President sought the advice of the ACB, though,
given the existence and intent of the Regulations
establishing the Committee, it’s reasonable to expect
that he would have done so and in writing.
In any event, as I have already pointed out, under the
law the President does not have to rely on the ACB’s
advice.
Mr Jagdeo and Mr Hoyte did enter into a political
agreement that, as a condition of Mr Hoyte’s
endorsement of the Amended Regulations, the government
would not act independently of the ACB’s advice. The
Agreement does not legally bind the government to
honour it.
Was the President’s decision fair and reasonable,
taking into account the prevailing conditions in the
country as well as the fact that this is the second
serious offence committed by the station? The fact
that the law gives the power to the Minister and, in
this case, the Head of State who was the subject of
the threat, is unfortunate.
Guyana now remains the only major country in the
Caribbean without modern broadcasting law instituting
a politically independent Broadcasting Authority to
administer and regulate broadcast licences.
The legislation establishing the ACB was, at best, an
interim measure agreed to by the two major political
parties to bring some minimum order to the use of the
broadcast spectrum.
We have had broadcast legislation, in one form or
another, in draft in Guyana since 1969, but, to date,
the political will to legislate a modern Broadcasting
Act which will relinquish political control over
broadcast licensing and regulations, remains absent.
At the end of the day, Mr Sharma, because we are a
democracy, is getting his day in Court. We should,
nevertheless, remember that free speech is not an
absolute right, and, for the broadcaster who is
granted the privilege of a licence, it is a right
abridged by very specific conditions demanding
standards of public trust which all of our
broadcasters, including the State owned television and
radio stations, continue to treat with little respect.
Yours faithfully,
Kit Nascimento
