Hopes and Sighs of the National Broadcasting Policy, 2014.

by Barrister A B M Hamidul Mishbah

Article Published in the Dhaka Tribune on August 11, 2014

The National Broadcasting Policy 2014 received the Cabinet’s consent on August 04, 2014. The government’s initiative in this regard deserves to be applauded for the fact that the government felt the necessity to streamline and develop the broadcasting sector in Bangladesh, through fostering creativity and diversification, ensuring freedom of expression, neutrality and accountability in the said sector.

The attempt however notably reflects the present government’s emphasis on strengthening democratic practice, ensuring free flow of information and informed decision making by the citizens at large.

Stakeholders too, on the other hand, asked for an instrument which they believe could play the critical role in establishing a level playing field, bring regulatory certainty, help increase dignity of the media professionals, proliferate technological advancement and develop the broadcasting sector in Bangladesh as a whole.

Nevertheless, the policy, which is alleged to have been drafted in isolation of all the key stakeholders, appears to have fallen short in living up to the stakeholders’ expectations.

The policy starting off with outlining the background and defining broadcasting, had managed to set out the objectives in the first chapter quite comprehensively. It spans up to chapter seven to ponder on matters of news and programme broadcasting, advertising, formation of the broadcasting committee, and then reflects upon certain miscellaneous issues in chapter seven.

Appearing to acknowledge the existing license holders as “licensee,” it indicates that the yet to be formed Broadcasting Committee, upon consultation with the stakeholders, will forward its recommendations to the government for adopting a “Broadcasting Licensing Policy” and for awarding broadcasting licenses based on the guidelines laid down by the Broadcasting Licensing Policy.

However, ample efforts have been made in configuring the clauses to ensure that the history of our liberation war, language movement, national idealism, culture, citizens’ religious beliefs and political views, agricultural and educational development, child and women rights, etc, receive appropriate weight and significance from the broadcasters.

Nevertheless, the number of the provisions in the policy is found inconsistent with some of the existing laws and some appear to be in conflict with the spirit of Article 39 of the Constitution or “Freedom of Speech.”

The policy, provision in 4.2.2, bars advertisers from showing comparative advertisements and claiming superiority over the competitors’ products, even in cases where the advertisers products are superior and better in quality or characteristics than the competitors’ products.

If the comparison shown is true, then it is legal to broadcast it. If the advertisers’ products are better than their competitors’, the law permits that the advertisers can tell the whole world about it, and there are ample decided case laws available in this regard.

Provisions 4.2.8, 4.3.4 and 4.4.4 are vague, unjustified and are likely to restrain the advertisers’ Freedom of Expression to a great extent. Provision 4.5.4 of the policy further prohibits broadcasting advertisements without prior permission in “applicable matters” but the policy has failed to define or give clarification on the phrase “applicable matters” it has referred to.

The same provision, in addition, requires the advertisers to obtain prior permission and pass the same to the relevant broadcasters. This is likely to cause inconvenience to the advertisers in marketing their products or services and incur further costs that might drive the price of the product or service high, in prejudice to the consumers’ interest. This provision (4.5.4), could also be used by corrupt officials as a tool for bribery.

The policy contains provisions that tend to safeguard the government officials and members of the law enforcement agencies. Some of the provisions are construed in such a manner that they can be used to punish or limit broadcasters intending to expose corruption or unlawful steps taken by the law enforcement agencies and government officials.

This not only strangles the Freedom of Speech but also defeats the purpose of the Right to Information Act (RTI) 2009. It may be pertinent to mention that section 32 (2) and (3) of the RTI Act 2009 allows broadcasting or publishing reports on the eight exempted law enforcement and security agencies on issues related to corruption and violation of human rights.

One of the significant features of the policy is that it prescribes the formation of an independent “broadcasting commission” through a bill, which will be headed by a chairman and necessary number of members set by the relevant act.

The chairman and members will be appointed by the president upon their nomination by a search committee yet to be formed by the government. The commission, once formed, will be entrusted with the function of awarding broadcasting licenses, determining the license fee, ensure fairness and monitor infringement of privacy by the broadcasters.

The commission, in addition, will receive and adjudicate public complaints, exercise Suo Moto power to issue show cause notice, conduct inquiry, take disciplinary action and forward recommendations to the government for taking necessary action.

This, at the very outset, appears to violate the principles of natural justice to the extent that the commission will perform the duty of a complainant, investigator and judge simultaneously. With such diverse role and excessive power, the commission is likely to cease executing its function as an impartial decision maker and ensure procedural fairness. Therefore, the right or legitimate expectations of an individual or entity might be impaired by the decisions taken by the commission.

In addition to the mentioned inconsistencies, the policy appears to be inadequate interms of establishing a nexus between the Ministry of Information, Ministry of ICTand BTRC (Bangladesh Telecommunication Regulatory Commission).

The draftsmen would have done better had they considered the dynamics of thebroadcasting industry, which cannot broadcast without obtaining the requiredfrequency assigned by BTRC.

Needless to mention that Broadcasters are subject to the elecommunication laws, rules and regulations set by BTRC in this regard. Prior to the introduction of the Broadcasting Policy, Broadcasters were required to obtain NOC (No Objection Certificate) from the Ministry of Information and upon obtaining the NOC the Broadcasters had to apply to BTRC for assigning frequency to import Earth Station and other related equipment.

BTRC assigns frequency or spectrum to the Broadcasters as per the NFAP (National Frequency Allocation Plan) subject to certain terms and conditions, which the Broadcasters need to comply with at all times. It may be noted that violation or non– compliance of such terms and conditions stated in the frequency license can result in cancellation of the assignment of frequency.

Nevertheless with this new policy, new entrants will now have to obtain license from the Broadcasting Commission while the existing ones have been made exempted from the same. The licensing conditions will however equally apply to both existing and new entrants, while new entrants will also be required to pay an upfront license fee to the government.

It may be pondered that the introduction of the Broadcasting Commission, will now give birth to an additional regulator for the broadcasting industry to indulge, in addition to obliging to the BTRC.

This will not only bring regulatory uncertainty to the broadcasting sector but also pose serious threat in terms of ensuring smooth and efficient operation of the sector players. Numerous suggestions have been made by citing Ofcom, which regulates the broadcasting, telecommunication, postal, consumer rights and competition sectors in the United Kingdom. But replicating the Ofcom model within our system would just be a far cry now.

However, the nexus between the regulators is crucial for ensuring coordination within the given sector. What if, the new entrants manage to obtain license from the Ministry of Information upon investing a hefty amount of money, but do not end up in securing the frequency from BTRC or face delay?

Provided that frequency is considered a scarce resource and can be assigned to certain number of entities only, determining the number of broadcasting licenses that may be awarded remains a concern. This may have an impact on preserving competition within the sector.

Besides, too many licensees operating in the same sector might result in market exit and loss of investment. The condition on the new entrants to pay upfront license fee will create entry barriers and on top of that, may imbalance the level playing field.

It may be noted that the existing broadcasting licensees were not required to pay up front license fees to the Ministry of Information for obtaining NOCs.

It may be asserted that, instead of introducing the policy, it would have been better had the government first formed a committee comprising all relevant stakeholders, and the committee could then have given the mandate to come up with appropriate recommendations for the government to reform and streamline the broadcasting industry in Bangladesh.

SAARC member nation Nepal had followed this approach back in 2006 wherein a commission popularly known as the “Adhikari Commission” was constituted. Radheshyam Adhikari, a Senior Advocate and a leading activist for free media in Nepal, chaired the commission while all major media related organisations were included as members in the said commission.

The Broadcasting Policy 2014, by and large, appears more like a guideline for regulating content than a concrete policy that is usually adopted keeping flexibility, neutrality and room for accommodating technological advancement.

Critical matters like addressing the licensing issues involved in IP TV/ broadcasting, removal of the anti media laws otherwise labelled as the “Black Law,” and qualitative, professional and institutional development of the broadcasting sector, have largely been ignored.

Inclusion of relevant stakeholders, ie BTRC, BASIS, A2I, at the initial stage could have helped in shaping the policy with a holistic approach. Nevertheless, the government may remain positive and endure the criticism that has surfaced.

It may show empathy to the concerns raised, and may however accommodate the recommendations poured from the relevant sections of the citizens, to convert the initiative into a remarkable success.