Legal uncertainty threatens broadcasters

Michael Hedges December 1, 2008

Broadcasters have enough to worry about without confusion over regulation. When governments and regulators don’t agree on rules, the principle of legal certainty flies out the window. Without that nobody wants to take on the risks.

Norway’s Culture and Church Affairs Minister Trond Giske ordered reapplication of 28 local commercial radio licenses (November 25). Broadcasters complained that they didn’t understand and, therefore, misinterpreted the rules. The problem, he said, was the regulator didn’t understand the rules the same way as the Ministry. And the Ministry authorizes final approvals.

“Providing local content is the primary criterion of the award competition, and the relationship must therefore be assumed to have been crucial for the award,” said the Culture Ministry statement (November 25). “The Ministry has also been aware of cases where the Norwegian Media Authority (Medietilsynet) has answered questions from some applicants about the understanding of the concept of local content without this information given to the other applicants. This raises doubts that the competition basis has been the same for all applicants.”

All radio licenses in Norway were up for review this year for the term running from 2009 until 2015. The Media Authority awarded 248 licenses in various categories in June; 24 for full-time broadcasting, 102 for public radio and 122 for time-shared frequencies. Licenses were last awarded in 2002. After the Media Authority announced its decision, Minister Giske said he’d be reviewing.

Minister Giske ordered the new round of licensing for local radio stations in 20 of 147 concession zones because considering individual applications would be discriminatory. The Broadcast Regulation (Kringkastingsloven Section 7-5) emphasizes “an applicants plans for the provision of local content.” The rule’s purpose is to “stimulate” local content production, said the Ministry’s statement (November 26). Rebroadcasting content previously broadcast, then, doesn’t count as local content.

“We thought that this was covered by the general information we let out,” said Media authority project leader Gudbrand Guthus. “We felt it was unnecessary for a clarification.”

“This is totally unreal,” said Radio 1 Managing Director Bente Klemetsdal on hearing it had lost its licenses. Radio 1, owned by SBS/ProsiebenSat.1, has been a fixture in Norway for 25 years.  SBS/ProSiebenSat.1 lost its Radio 1 licenses for Oslo and Stavenger but not Trondheim and Bergen. The company also owns Radio Norge, formerly Kanal24, a national license.

“It's been a long and difficult period of great uncertainty for my employees,” she said to Journalisten.no after Minister Giske’s recent decision.

NRJ Norge Managing Director Richard Mazeret was less gracious toward Minister Giske. He’s phoned the lawyers. “Our lawyers are working on it,” he said to Bergenpuls (November 26). “They will assess whether the Ministry's decision has gone right.”

“If Giske had been consistent, he’d announce a new licensing round for the entire country,” said Mazeret.

NRJ Norge won licenses for Greater Oslo, Trondheim, Bergen and Stavanger for Radio NRJ but lost the license for KlemFM, which it did not appeal. NRJ Norge has been present in Norway since 1998.

Radio Metro’s Svein Larsen is not happy. His station was granted a license by the Media Authority, replacing SBS/ProSiebenSat’s Radio 1 in the Greater Oslo concession zone.

“I now have 12 employees, contracts with consultants, invested in studio equipment and signed advertising deals for 4.5 million,” Larsen told Aftenposten.no (November 28). According to Kampanje.no (November 25), Larsen was nearly speechless after the Culture Ministry’s decision: “I am a bit irritated, you can say.”

“The fact that a radio company is already in the market is not something we can attach weight,” said the Media Authority’s Gudbrand Guthus when the June decision was announced.

Few regulators “attach weight” to incumbent license holders, the exception being public broadcasters. The Swiss regulator OFCOM recently denied renewal to a financially successful broadcaster and local outrage followed. Too few “journalists” was the official reason for denial. Regular review of broadcast licenses is good public policy. If it keeps broadcasters on edge, so be it. For broadcasters, all rules must be clear and understood to foster sustainability and media plurality. 

Norway’s radio broadcasters have asked the Culture Ministry for a precise definition of local content. Minister Giske has deferred comment until December 8th when the concessions are re-advertised. Meanwhile broadcasters with licenses in question can operate until June. New applications are due January 13th.