Ensuring Diversity in South Africa's Public Broadcasting Sector

1. SOS: Support Public Broadcasting Oral Submission to ICASA 6 May 2010

2. Introduction We, the Civil Society Coalition: SOS: Support Public Broadcasting (“the Coalition”), thank ICASA for the opportunity to make this oral representation. The Coalition’s written submission and this oral presentation puts forward the Coalition’s views on the questions raised in ICASA’s discussion document on issues of ownership and control published in Government Gazette No. 32719, Notice 1532 of 2009.

3. The Coalition is: A large grouping of organisations and individuals working together to support and strengthen public broadcasting in South Africa. It includes non-governmental and civil society organisations, trade unions, independent producers and academics

4. Our members are: Members of the Civil Society Coalition SOS: Supporting Public Broadcasting Organisations •  AIDC (Alternative Information Development Centre) • BEMAWU (The Broadcast, Electronic, Media and Allied Workers Union) • Communications Workers Union (CWU) • COSATU (Congress of South African Trade Unions) • Creative Workers Union of South Africa (CWUSA) • Documentary Filmmakers Association • Ecumenical Services for Social and Economic Transformation (ESSET) • Federation of South African Unions (FEDUSA) • The Freedom of Expression Institute (FXI) • The Freedom of Expression Network (FXN) • Gender and Media Southern Africa (Gemsa) • Genderlinks • IDASA, an African Democracy Institute • The IAJ (Institute for the Advancement of Journalism) • The MMA (Media Monitoring Africa) • MISA South Africa (The South African National Chapter of the Media Institute of Southern Africa) • The NCRF (National Community Radio Forum) • The National Consumer Forum

5. Members (continued) Organisations (continued) • The IPO (Independent Producers Organisation) • SANGONET (The South African Non-Governmental Organisation Network) • SAHA (The South African History Archives) • The South African Screen Federation (SASFED) • Workers World Media Productions • Writers Guild South Africa Individual Members • Ms. I. Bruynse – Bright Media • Prof. T. Kupe – Associate Professor of Media Studies and Dean of the Faculty of Humanities, University of the Witwatersrand (in his private capacity) • Prof. Anton Harber – Caxton Professor of Journalism, University of the Witwatersrand (in his private capacity) • Mr. Raymond Louw – South African National Editors Forum (in his private capacity) • Ms. J. Limpitlaw – broadcasting lawyer (in her private capacity) • Ms. J. Minnie of Zambezi FoX – international Freedom of Expression and Media Consultant • Prof. Devan Pillay – Head of Sociology Department, University of the Witwatersrand

6. Approach As a Coalition dedicated to the support and strengthening of public broadcasting – our focus is on broadcasting. • Our particular focus is on ensuring that ordinary citizens receive a diversity of views that help them to make informed choices about their lives. • Monopoly control and foreign ownership can limit views but also equally a lack of viability of players, a lack of skills, capital and technology can threaten quality broadcasting and ultimately a diversity of views.

7. Are the recommendations of the 2004 Position Paper still relevant? • Yes • This should be the basis of the review.

8. Gaps in 2004 paper • The following gaps in the 2004 paper and proposed amendments to legislative provisions need to be addressed: • The law does not sufficiently provide for the multi channel television environment arising from digital migration or take into account convergence. For instance the 2004 proposals did not address the need to consider cross-platform limitations. ICASA should investigate • The 2004 paper outlined circumstances under which exclusions to the rules would be considered but did not base these clearly on public interest values.

9. International Experience Experience in other countries demonstrates that it is extremely difficult to dismantle concentrated media ownership structures once they have developed. Therefore it is important to put in place limitations from the beginning. There is a need where exceptions are allowed (as in current law) for the regulator to spell out in regulations what it will consider in deciding on such applications

10. Principle: Diversity of Ownership Diversity is not only realised through introducing a range of shareholders in the commercial sector. Diversity is also reached through the three tier system – by ensuring access by audiences to commercial, public and community services. Rules should promote the development of all three tiers across the country

11. Principle: Diversity Diversity is not limited to ownership. Ownership diversity must be considered together with: • Diversity of content; • Language diversity; • Diversity of formats; and • Diversity in the three tiers of broadcasting

12. Limitations on number of radio services SOS agrees with proposal in 2004 paper to introduce percentage based rather than numeric limitations for radio. The 2004 recommendation from ICASA proposed that one person control no more than 35% of the number of commercial sound broadcasting services licensed. This certainly enhanced the existing legislative numerical provisions, but SOS argues that the regulator could further refine its approach in order to investment in secondary towns – such as Northern Cape. For example: • Percentages could be based on market share (population coverage) rather than number of stations. This would allow for a shareholder in a secondary market to control more actual stations than a controlling partner in the primary markets. • ICASA could also explore a differential percentage and state that a person may own a lower percentage of licensees in primary markets than in secondary markets. • ICASA could in outlining the circumstances under which it would consider an exception to the rule, list investment in those licence areas which are perceived as less valuable as one option. . • Also we want to comment on the percentage itself – 35% is fairly high. We note some of the innovative measures the countries such as the UK have introduced. The UK says a public interest test should be undertaken if anyone is going to own more than 25%. We would certainly endorse that.

13. The Coalition’s position: • Much better to have a percentage based ownership – while limiting control of the radio market within individual areas. • The law can stand as the sector grows. For example 2/5 is different to 2/25. • Number owned will increase by total number of stations. • ICASA should retain discretion to grant exceptions based on clear public interest factors (which could be outlined in the law or by ICASA in regulations) such as increasing access to information and to a range of services. • ICASA should specify particular licence conditions that will be imposed when such exceptions are granted – eg insisting on specific requirements on ensuring news and information is independently produced and limitations on syndication of programming

14. Limitations to ownership in one area • The law further limits the number of stations any one person may control in the same coverage area. • Such rules are important to maintain. • Again however new approaches should be explored as the current numerical limitation might be appropriate in one area (where there are many licensees) but inappropriate in terms of diversity where there are only two or three licensees

15. Cross Media Control • Cross media controls are critical to ensure diversity of information • The 2004 proposals recommend important technical changes to address existing vagueness in the law. • ICASA needs to consider the proposed increase in percentage ownership by newspapers of broadcasting services. The regulator should assess this in consideration of core freedom of expression criteria (including diversity).

16. Limitations for television • The existing law which limits control to one free to air television broadcasting licence needs to be similarly interrogated taking into consideration digital migration and convergence. • As regards subscription television, ICASA should further consider whether or not it should limit control across different platforms – existing control by one company of satellite and terrestrial subscription broadcasters has imposed barriers to entry by new players

17. Foreign ownership The 2004 Position Paper propose a slight relaxation in respect of limitations on foreign ownership from 20% to 25% where the company is not listed, to 35% for listed companies and to an overall level of 35% for more than one foreign owner in an unlisted company in order to: • To accommodate the need to promote foreign investment • Still ensure control of the Broadcasting sector by South Africans

18. The Coalition’s position The Coalition strongly supports South African ownership of broadcasting services as broadcasting is an essential public service. We feel that ICASA should do more research re: the actual percentages. ICASA should evaluate the percentages by weighing up the need to ensure broadcasting is controlled by South Africans but also that we do make South Africa attractive to foreign investment

19. What constitutes control? • We believe that control is a critical issue and this is important particularly when looking at foreign ownership issues. The principle here is that South Africans need to control South African licenses. Some of the measures that we would need to include would be measures re: senior management positions. We thus believe that it is important to look at various key positions such as the CEO, CFO, COO, Chief Technology Officer etc. These should be South Africans.

20. Should compliance with BBBEE be mandatory for all individual broadcasting licensees? • Yes. • We think the DTI’s development of the BBBEE codes is a very positive development. The codes look at issues beyond equity and although equity is a starting point we believe transformation needs to go much deeper than this to look at management issues, skills training, procurement etc. We believe that licensees should adhere to these codes.

21. How should we advance BBBEE in the sector? • At one level broadcasting is one of the most transformed sectors of the economy - there are no license holders that are not already at least 25% black owned and controlled (and that many companies have much higher percentages). • There is a need for ICASA however to review the reduction in the number of BBBEE shareholders in broadcasting post licensing. A number of smaller, regional shareholders have sold stakes shortly after licensing.

22. Continued: • Current system of competitive licensing processes works: Those applicants who comply more with BBBEE imperatives have a competitive advantage over others • ICASA must however ensure that applicants are bound to application promises in licence conditions • In interrogating BBBEE during application process, ICASA must interrogate not only control (and limitations on this) and funding – but also how historically disadvantaged shareholders intend to ensure transformation in all aspects of the licensee and if they have ensured they have the knowledge and expertise to make meaningful contributions to decision making.

23. What measures should be introduced to ensure that BBBEE is not diluted when shares are transferred? • You can ensure that there is a “lock-in” period. • This a tricky issue because you don’t really want to have two tiers of shares – those that can be traded and those can not. Makes certain shares more valuable than others. • What this points to is the importance of BBBEE which looks at issues beyond equity to procurement policies, management issues, local talent development etc.

24. What measures should ICASA put in place on companies listed on the JSE? And companies with foreign ownership? • They should have additional disclosure requirements • Further, the new Companies Act talks about the need for additional Board sub-committees made up of a certain number of independent directors that look at ethical issues, socio-economic impact etc. • Media diversity board sub-committees with independent directors. • Companies with foreign ownership should be compelled to do training and ensure technology transfer. Management needs to be South African.

25. What factors should the Regulator consider when promoting a diversity of views through the regulations? • This review of ownership is important – but ICASA also needs to review regulations and position papers on commercial broadcasting to assess their effectiveness in ensuring diversity. Regulations for free to air commercial broadcasting are over ten years old. • Ownership review should be followed by review of these.

26. Programming: There is a need to ensure a greater diversity of views at programming level: • ICASA should review the extent of diversity of sources for news and information programming and consider if it needs to develop regulations to strengthen this ICASA needs to consider how to promote language diversity in the commercial sector

27. HR, training, outsourcing etc • ICASA should also review those aspects related to human resources and empowerment, training and investment in training and approaches to oursourcing.

28. Thank You The Coalition thanks ICASA for this opportunity