[kictanet] New Regulations & the Media: Broadcasting Regulations

Tue Jan 19 18:58:27 EAT 2010

Dear David,
Your mail was not easy to read but I tried to read it all. You have a strong case. However, in many of the instances you point out, one can also see a potential security threat that the government could be trying to manage. For example, on the coverage of political candidates - the regulator appears to be confuse? the responsibilities of a private broadcaster with that of a public one. OR the govt. knows that private media is already largely in political hands and politicians who own media houses will obtain excessive electoral advantage and also break all ethical codes (with weak media self regulation). Presently it appears as though there is a race by the political class to own media houses.  

You also have a point on CCK's independence. This is perhaps the strongest arguement against this regulatory process.

However, if the media is to win this battle, the sector will need popular support. I think the public voice on 'indecent' coverage is very loud and we are yet to hear any media statement on the sector's 2007/2008 conduct. Make peace with the public and demonstrate strong self regulation and you will find an ally in the public. 

regards, Wamuyu

________________________________
From: David Makali <dmakali at yahoo.com>
To: wamuyulearn at yahoo.co.uk
Cc: KICTAnet ICT Policy Discussions <kictanet at lists.kictanet.or.ke>
Sent: Tue, 19 January, 2010 13:17:28
Subject: Re: [kictanet] New Regulations & the Media: Broadcasting Regulations

Daktari;
i thank you for your response. 
i beg to reply. 
while no sane person can object to the need for the regulations, there are some fundamental principles of media independence which the published regulations offend - especially with regard to adjudication of disputes or determination of right and wrong. our insistence, which we have to admit has failed to persuade you, is on an independent arbitration mechanism so that the media is not subject to a potentially repressive regulatory regime. 

it has also been pointed out that there is an element of bad faith in the manner the ministry always proceeds, despite protestation. our meetings, submissions and petitions never seem to curry favour with the ministry, hence a sense of deja vu. the apparent reluctance of the media to engage sometimes with the ministry is borne out of the sense, rightly or not, that you have taken this as a personal cause/agenda to prosecute, and the public is only improvised as a pawn in the drive to hem and castrate the media. it took that meeting we had at the pm's office and the ag for example, to moderate your hard stance on some of the problematic clauses in the communications act. in your recent interviews (eg the one you had with louis on K24 and the statements in the current issue of Kenya Today), you whipped out the bogey of pornographic/adult content and stated straight-faced what the public has "decide" it does not want. well, i cannot contest your facts
because i have none, but it left me wondering when the survey was conducted and by whom, and the percentages it generated against this and that? i suspect you are right; i too am loathe to any adult content aired or discussions of some topics during neutral radio space like morning or early evening hours. but the point is that no one is opposed to that aspect of regulation and you know you are whipping it out basically to box the media and coax the public to endorse other extreme measures within the body of the regulations published. fact is that no one in the media is opposing the watershed period for adult content or the provisions against "glorification" of violence, incitement, hate speech, or offensive vulgar speech and many other great provisions in those regulations. 
the frustration in the media with the ministry is historical. it is the result of the many meetings that took place on the path to the passage of the kcomm act, 2009, and the protracted engagements thereafter which yielded the deletion of sect 88, which you and minister poghisio had defended to the hilt, quite surprisingly. this is our country and all of us want laws that are in the interest of everyone, the public, and not who may happen to be in authority. 

i disagree that the media has declined to attend any meeting. you know that you/the ministry have  selectively been inviting and engaging the media owners association, whose interest is predominantly in the frequencies they control and the investments thereof. you have deliberately avoided engaging the editors and media practitioners, who are opposed to govt control, NOT regulation. that's cheeky, sir. i am not going to defend anyone who has hoarded frequencies, and from our discussions and other comments i have made, i believe it is against public policy for anyone to be allowed even one more day with frequencies they obtained through influence peddling or political patronage. they are not any different from the mau forest mbuta; no compensation or sympathy is due to them. why are we applying different standards - people who grabbed road reserves are having their structures demolished and the mau squatters evicted, but bigger land grabbers are to be
compensated and the frequency hoarders given a grace period of five years to surrender? everyone should be evicted in the same style whether patched in the sky or squatting on some land. 

dr Ndemo's assertion that when the thuggish MP attacked journalists they turned not to the media council but to the govt is twisted logic. the mp committed a criminal offence (assault) not a professional (ethical) or civil misdemeanor which the media council is charged with arbitrating. and that is why the media is opposed to professional omissions or commissions being arbitrated by the CCK, whose tribunal is not imbued with specific professional competence or such juridical disposition.  

ok, let me briefly turn to some contentious issues with the new regulations:

1. overstepping mandate
although the Kenya Information and Communication Act, 2009 [sect 46(s)1], clearly states that content regulation is the function of the Broadcasting Content Advisory Council, the ministry has already gone ahead to gazette regulations covering exactly that. why can't the ministry just appoint the council and wait for it to draw up these content regulations as is its duty call? I find this overbearing on the part of the ministry and a betrayal of its suspect eagerness to intervene. it is a moot question why the ministry is so apprehensive of the capability of the council to do so when media representation on it is dismal or non-existent, it being dominated by the government, including you, as PS?

reading through the regulations there is nowhere the content advisory board is mentioned in terms of the regulation functions. everything reads "the commission shall..."  including the drawing up of the Programme Code. is it to be presumed that the commission stands for the content council in the regulations? i suspect not. 

2. excessive regulation
PART II: LICENSING (6) stipulates that anyone licenced to broadcast shall set up infrastructure and commence within 12 months or the licence shall be revoked. THIS PERIOD NEEDS TO BE LEFT TO THE CCK TO DECIDE depending on circumstances. there is no need for the ministry to tie the hands of the regulator.

6(b) the commission shall ensure that broadcasting services are delivered using the most efficient and effective available technologies. HOW SHALL IT DO SO WITHOUT INTERFERING WITH THE LICENCEES UNDULY? ISNT THIS THE PREROGATIVE OF THE INVESTOR (TO REMAIN RELEVANT) or CCK?

4. legitimising and maintaining an unfair status quo
there is quite a bit that is wrong with the current broadcasting regime that the regulations make a feeble attempt at redressing. many frequencies have changed hands and the current skewed landscape disadvantages new entrants.and some provisions are coming after the horse has bolted, for example:

PART III: BROADCASTING SERVICES 
(2) "the public broadcaster shall not lease or transfer the broadcast frequencies of channels assigned to it for use in public broadcasting". WHAT OF THOSE THAT HAVE ALREADY BEEN ASSIGNED UNPROCEDURALLY, AS WE ALL KNOW? SHALL THEY BE REVOKED OR REGULARISED?

(5) "the Commission shall allow community broadcasting licencess to advertise, on their station, adverts that are relevant and specific to that community with the broadcast area". 
EXACTLY WHY SHOULD THEY BE BARRED FROM AIRING ANY KIND OF ADVERTISEMENT? THIS IS TANTAMOUNT TO MICRO-MANAGING AND INTERFERING WITH THE OPERATIONS AND CONTENT OF THE COMMUNITY. BROADCASTERS. 

5. politicising the media
(25) During a polling period, a licencee shall:
(a) "provide equitable coverage and opportunities to registered political parties participating in an election and in particular to presidential candidates" 

THIS IS UNDUE. MEDIA SHOULD BE FREE TO DECLARE THEIR SUPPORT TO ANY POLITICAL PARTY, OPINION OR IDEAS WITHOUT PREJUDICING THE OTHERS. THE MERE FACT THAT A PARTY IS REGISTERED OR A POLITICIAN HAS DECIDED TO RUN FOR PRESIDENCY SHOULD NOT AUTOMATICALLY ENTITLE HIM/HER TO ANY PARTICULAR AIRTIME/COVERAGE. POLITICS IS NOT A PUBLIC IMPERATIVE AND SHOULD INTERFERE AS LITTLE AS POSSIBLE WITH THE OPERATIONS OF COMMERCIAL/PRIVATE ENTERPRISE. POLITICAL TIME MUST BE DELINEATED FROM THE STATION'S GENERAL TIME AND LET EDITORIAL DISCRETION FLOURISH.

6. interfering with editorial decision making and content
(26. 1) A licencee shall ensure that any person who is to be interviewed in any of the broadcasts is;
a) advised or the subject of the interview, 
b) informed before the interview takes place, to determine whether the interview is to be recorded or broadcast live".
WHY SHOULD THIS BE MADE LAW? ISNT THIS A PROCEDURAL AND PROFESSIONAL IMPERATIVE? WHAT IS THE MOTIVE BEHIND THIS CLAUSE? INDEED WHO ATTENDS AN INTERVIEW WITHOUT KNOWING WHAT IT IS ABOUT? WHO DETERMINES WHETHER IT SHOULD BE LIVE OR RECORDED, AND WHY DOES IT MATTER TO THE REGULATOR? WE SHOULD AVOID "CANNED" JOURNALISM

(29.) "A licencee shall not broadcast any information acquired from a person without that person's consent, unless the information so acquired is essential to establish the credibility and authority of a source, or where the information is clearly in The public interest." 
THIS IS AMBIGUOUS. IT GAGS THE MEDIA AND INFRINGES ON THE ENTERPRISE OF INVESTIGATIVE JOURNALISM.

(30.) a licencee -
(a) shall not accept sponsorship of news broadcasts;
HELL, WHY NOT? WHAT ABOUT ALL THE OTHERS - SPORTS, COMEDY, SOAPS?

(31. 1) a licencee shall not broadcast an informercial - 
a) during prime-time, or...
WHY? COMMERCIAL ENTERPRISES TOO NEED TO REACH AUDIENCES WITH THEIR SERVICES/MESSAGES.IT IS OK TO LIMIT THE CONTENT OF SUCH INFOMERCIALS IN LINE WITH THE "WATERSHED"PERIOD BUT TO BAN THEM IS NOT JUSTIFIABLE.
2.) a licencee shall ensure that all infomercials that are broadcast by its station are lawful, honest, decent and conform with the principles of fair competition. 
THIS IS UNTIDY.  WILL BROADCASTERS HAVE TIME TO ESTABLISH ALL THE UNTRUTHS CONTAINED IN ALL ADVERTS? THAT RESPONSIBILITY LIES WITH THE AUTHOR/ADVERTISER, NOT THE CHANNEL THAT TRANSMITS. IT CANNOT BE TRANSFERRED. THE STATION NEEDS ONLY TO ADMINISTER THE JOURNALISM ETHICS TEST OF GOOD TASTE, NOT TAKE RESPONSIBILITY FOR THE TRUTH OR FALSITY OF INFOMERCIALS.

(33. 1) a licencee shall ensure that it only broadcasts advertisements that are lawful, honest, decent and conform with the principles of fair competition.
(33. 2)  a licencee shall ensure that advertisements broadcast by its station do not -
a) contain any descriptions, claims or other material which may, directly or by implication, mislead members of the public in relation to the product or service advertised, or about its suitability for the purposes recommended; or
b)  unfairly attack or discredit, directly or by implication, any other advertisers, products or advertisements.
(33.3)a licensee thall, before broadcasting an advertisment, ensure that any descriptions of claims in the advertisement have been adequately substantiated by the aevertiser.

WHILE THE MEDIA CAN ASSIST BY BEING JUDICIOUS (which they do), THIS REGULATION SHOULD BE DIRECTED AT THE ADVERTISING PRACTITIONERS ASSOCIATION (APA) AND THE MARKETING SOCIETY OF KENYA (MSK). WHEN IS THE MINISTRY PUBLISHING SUCH A BILL?

WHAT IS THE YARDSTICK APPLICABLE HERE FOR WHAT IS DECENT, LAWFUL? BROADCASTERS ARE NOT COURTS, INVESTIGATORS OR INVOLVED IN TESTING THE CREDIBILITY OF CLAIMS IN COMMERCIAL ADVERTS. 

7. loopholes for state interference in content

PART V - PROGRAMME CODE
THIS WHOLE SECTION COMPLETELY IGNORES THEE EXISTENCE OF THE BROADCAST CONTENT ADVISORY COUNCIL AND INVALIDATES THE AGREEMENT MEDIATED BY THE PM. THE REGULATIONS MANDATE THE COMMISSION TO PRESCRIBE THE PROGRAMME CODE AND COMPLIANCE.

8. others
to avoid regurgitating the arguments i proffered last year when the regulations were first published, i am pasting herebelow the article published in ET as well as our website, eastafricapress.net, which Dr Ndemo does not seem to have had regard to, hence his challenge. it provides context.

***

These regulations will not guarantee media pluralism
By David Makali

The Kenya government early September published the Kenya Communications (Broadcasting) Regulations to guide the application for licences, award and use of broadcasting frequencies. The rules are expected to give effect to the Kenya Communications Act, 2009, enacted in February amid much acrimony with the media.

The regulations are bound to generate heat in as far as they propose radical changes in the largely discriminatory and partisan allocation of frequencies handed out in smoke-filled rooms devoid of transparent criteria.

Beneficiaries of this crooked licencing regime are bound to resist any reform that will create a level field for new entrants and fair competition. It is not clear whether public interest is served by their continued enjoyment of those frequencies. Already, there is a suit in court challenging the attempt to perpetuate this injustice by automatically renewing the licences and frequencies of those who have, which is tantamount to legitimising the means by which they acquired them. Some companies are known to be hoarding hundreds of frequencies which they luxuriously pop on air and employ against their competitors.  That has effectively stifled competition and turned off potential investors in a sector that is perhaps the fastest growing. That past regime must end, and how else to bring the shutter down except by declaring all frequencies held as interim, until justified on the basis of new criteria agreed by the public?

It is in the public interest that media diversity replaces the current dangerous concentration propelled by political favouritism. To that extent, we salute the ministry/government for taking the first step, and introducing a transparent system of licencing. 

And yet not so. Some of the proposed requirements are suspect and an unnecessary encumbrance to potential investors. They are even skewed against the potential applicants who are, for example, required to demonstrate:

[(Part II, 3 (b)] – evidence of technical capability in terms of personnel and equipment to carry out broadcasting services (Which one comes before the other – a licence or demonstration? How does an investor or applicant acquire technical equipment before they are licenced?)
[Part II, 3 (c)] — evidence of relevant experience and expertise to carry out broadcasting services. (Again, is this a fair requirement for an investor? This presumes that investors in broadcasting business are technicians or professional journalists, which is not the case because it is not an investor’s job to run a station).

[Part II, 3 d)] — evidence of the capability to offer broadcasting services for at least eight continuous hours. (What purpose is served by this condition and must a licencee broadcast for such length of time? Suppose an applicant wants to run a station that only targets school-going children between the time they return from school and when they go to bed?).

The regulations also prohibit trade unions from being licenced yet other more partisan groups – such as some religious denominations, politicians or political parties – are not prohibited or already have frequencies. What is it about trade unions – including the Kenya Union of Journalists — that disqualifies them? 

Proceeding with the same regimental mode, broadcasters (3b) are required to “include news and information in their programming as well as discussions on matters of national importance as may be prescribed by the commission from time to time.” Now, pray, why should it concern the government whether a station is airing commentaries of news unless it wants to have a voice there? Isn’t that a matter best left to each broadcaster to find its competitive edge and niche? And must all the stations look alike by offering information and news? That’s boring.

But there is some good news, for advocates of diversity and media pluralism, in the clause on ownership and control (6 I) which says that all licencees shall not be assigned more than “one broadcast frequency for radio or television broadcasting in the same coverage area.”  Well, that would spell doom for companies like Nation Group (Easy FM, QFM), Radio Africa (Kiss, Classic, Radio Jambo, East FM, Xfm), and Royal Media Services (Citizen Radio and TV and 11 vernacular stations broadcasting in almost all parts of the country under one roof).

There is continuing ambiguity about those holding licences and frequencies prior to the commencement of the regulations. In clause (a), they are required to apply for broadcast licence(s) as prescribed by the Commission and pay the requisite fees. But the same regulations again state that the licences will (c) “retain such radio frequency resources already assigned under the same terms and conditions of issuance, provided they comply with such new terms and conditions that may be imposed by the Commission”.

There is no sign that the government is ready to undertake any radical changes in media ownership. By extending to five years the period during which those with multiple frequencies in one area are required to surrender them, the government has definitely chosen the partners to do business with. 

Furthermore, the government appears to have succumbed to the broadcasters regarding local content by merely providing that “a licencee may be required to commit a minimum amount of time to the broadcast of local content as may be prescribed in the licence, as may be prescribed from time to time by the commission in the gazette.”  Stations that fail to comply will only be required to “pay such an amount of money as may be prescribed by the commission”. That sadly reduces the imperative of local programming to a monetary value when all along we thought the objective was to create jobs and support our culture, ideas and art. How that is exchangeable for money defeats logic. We can hear the artistes yawning.

Yet, while it spares the local media the burden of investing in local productions it foists the rigid requirement on foreign broadcasting stations for whom minimum local content will be prescribed. The target is of course the usual suspects —BBC, RFI, VOA.

Reading through the regulations, there is a discernible attempt by the government to avoid another fight with the media. But it invites the same unknowingly by duplicating the duties of the existing Media Council with regard to arbitrating content related complaints, an issue which was raised in the heated debate that preceded the legislation of the Communications Act earlier on last year. There is also bad news for owners who have acquired stations and frequencies issued to speculators. Now any change in the shareholding of any company licenced to broadcast will require the approval of the CCK. The commission will grant or refuse to allow such change of ownership upon considering several factors, among them the possible “impact of the transaction on competition in the sector and the promotion of pluralism and diversity in the sector.

_______________

"If my doctor told me I had only six minutes to live, 
I wouldn't brood. I'd type a little faster."
— Isaac Asimo, Columbian Author and Scientist
_______________

PO Box 3234
00200 Nairobi, Kenya 
cell: +254 722 517 540

--- On Mon, 1/18/10, bitange at jambo.co.ke <bitange at jambo.co.ke> wrote:

> From: bitange at jambo.co.ke <bitange at jambo.co.ke>
> Subject: Re: [kictanet] New Regulations & the Media: Broadcasting      Regulations
> To: "David Makali" <dmakali at yahoo.com>
> Cc: bitange at jambo.co.ke, "KICTAnet ICT Policy Discussions" <kictanet at lists.kictanet.or.ke>
> Date: Monday, January 18, 2010, 12:32 PM
> David,
> In my view dialogue is the only way forward.  Simply
> raise the issues you
> object to then we find a solution to it.  Even as you
> (media) unilaterally
> refused to participate in the stakeholder hearing, the
> Government would
> still want to accomodate your objections.  I also
> offered to resign if it
> happens that the regulations are outside of what is
> considered standard
> practice worldwide.
> 
> Media freedom is dear to me and would not want unnecessary
> fights with
> media.  I have said before that individual liberties
> have limitations
> especially when it comes to where the individual like a
> child has no
> capacity to exercise those liberties.  From Mills to
> Chaufour you will
> find state intervention necessary to protect those unable
> to exercise
> certain rights.
> 
> When Hon. Mbogua attacked the Nation Journalists, Media did
> not go to
> Media council or any other body.  They came to the
> Government.  The
> Government therefore is supposed to guarantee protection to
> those who
> cannot protect themselves.
> 
> 
> Regards
> 
> 
> Ndemo.
> 
> 
> 
> 
> > folks,
> > quite a few things can be said about the new
> broadcasting regulations but
> > the tendency on this forum to pooh pooh the media, as
> if it is the
> > greatest sinner, is quite frankly discouraging. any
> one who is cheering
> > the govt for the new regulations is urged to employ
> some
> > skepticism.because sooner rather than later, they will
> begin to absorb the
> > implications.
> > it is quite clear that regulations are needed, but the
> devil is in the
> > letter. the day you have the cck, which is yet to
> demonstrate its
> > independence from political dictation, determining
> what is aired or not,
> > and what constitutes a variety of views or
> objectivity, then you will
> > reaslise what the apprehension is all about.
> > i hesitate to get into specs and refer you to our
> (Kenya Editors Guild)
> > (http://www.eastafricapress.net/)
> position, as well as my comments on the
> > regulations when they were first published
> > (http://www.eastafricapress.net/index.php?option=com_content&view=article&id=223)
> > more later.
> > makali
> >
> > _______________
> >
> > "If my doctor told me I had only six minutes to live,
> > I wouldn't brood. I'd type a little faster."
> > â€” Isaac Asimo, Columbian Author and Scientist
> > _______________
> >
> > PO Box 3234
> > 00200 Nairobi, Kenya
> > cell: +254 722 517 540
> >
> >

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