by Larry Smith
The Utilities Regulation & Competition Authority has published a proposed code of practice for broadcasters and advertisers (viewable here). It is intended to regulate the types of content that can be broadcast in the Bahamas on television and radio stations, teletext services, and cable networks.
The code seeks to prohibit or restrict certain types of programming, and to set rules that promote accuracy and fairness in news, current affairs and political broadcasting
I attended several industry working group meetings over the past several months at URCA to discuss the code. The working group reviewed similar regulations from other countries, including the Commonwealth Caribbean, to determine what issues should be addressed in the Bahamian code. Public consultation on the draft code is open until December 30.
What follows is an edited version of an article originally published in February 2010, which looked at some of the ramifications of the regulation of political broadcasting. The discussion was sparked by complaints about the restriction of party advertising during the Elizabeth bye-election campaign.
Whenever an election is in the air, Bahamians seem to take leave of their senses. And the current controversy over political broadcasting rules set by the new utilities regulator (URCA) is a telling example.
This is not to deny that we should pay a lot of attention to any attempt to regulate the media. in fact, this should be the subject of a full-scale public debate going forward - rather than just a closed-door conversation among media moguls. But before we get to the broader issues of how we regulate speech during an election, a word or two on the local tempest in a teacup is in order.
The BBC became a public corporation in 1927, but the Broadcasting Corporation of the Bahamas was not created until 1972, although ZNS was separated from the Telecommunications Department (as it had become) in 1957. Television in the UK came on stream in 1955, but - and solely for political reasons - we had to wait until 1977 for that to happen.
At the end of the 25-year Pindling regime - in June 1992 - the governing Progressive Liberal Party promulgated a new set of rules for political broadcasting, which have remained in force ever since - through multiple general elections and bye-elections. These are the rules that Perry Christie, the current PLP leader, now condemns as unconstitutional and undemocratic.
So what are these nefarious rules? Well, here's the short text.
First, the content of political election broadcasts has to observe the law on incitement, defamation, copyright and obscenity. Second, parties can place only six 30-second television and six radio spots per day. And third, all commercials must be produced in-house by the stations themselves using voiceovers by the candidate or by a station employee.
"We roundly condemn what URCA has done and we completely reject it," Christie said recently, adding that the PLP wanted the freedom to buy as many ads as they wanted on as many stations as they wanted during the campaign leading to the February 16 bye-election in the Elizabeth constituency.
"It is unconstitutional. It is unlawful. It is a bogus and a completely unjustifiable attempt to stifle free and fair expression in a democratic society," Christie roared. And he took this position in spite of the fact that the PLP is already heavily indebted to ZNS for political broadcasting aired before the May 2007 general election, when it was the party in power.
Private radio stations were also upset, with Jones Communications CEO Wendall Jones calling the rules "unprecedented censorship." Well, we don't see how that charge can be supported, but we do know that the rules could cause the loss of potential ad revenue. It is well-known that media companies reap huge benefits from political advertising during election campaigns.
The utilities regulator fought back, saying it was committed to protecting the public interest by ensuring that treatment of all stakeholders is "proportionate, transparent and fair." The rules at issue are an interim measure, URCA said, which will ultimately be replaced by new content codes as required by the Communications Act, which became law last September.
So how will these interim rules be enforced? According to a spokesperson for URCA, if a complaint is made, the station concerned has 48 hours to resolve the issue or refer it to URCA. "We will investigate whether a breach has occurred and give notice to the station for it to remedy the matter. The sanctions of a fine or licence revocation as provided for in the Communications Act would be used only as a last resort."
One further point to consider is that although these rules have been around since 1992, they were only selectively, if ever, enforced over the past 18 years because no enforcement agency existed to do so. In this sense, the present controversy does constitute a break with past practice (or non-practice). Guaranteed to upset the politicos, but hardly the stuff of constitutional arguments.
In fact, the rules applied by URCA are very similar to those in Britain, where political broadcasting has been regulated since 1947 and a longstanding ban on paid political advertising on radio and TV is in place. Instead of ads, major parties (those that contest at least one sixth of the seats up for election) are offered a series of campaign broadcasts that must comply with fairness, privacy and decency rules.
The 2003 Communications Act in Britain reiterated the ban on political advertising. The thinking is that by denying powerful voices the chance to skew political debate, the public interest is safeguarded. Sponsorship of programming or cable channels by political parties is also banned, putting politics in the same category as other toxic issues like dangerous drugs, pornography and tobacco.
But we are more familiar with this side of the Atlantic, and as we all know, the United States is at the opposite end of the spectrum in this matter. The question we have to answer going forward is this: Are we more concerned about broadcasting as a vehicle of free speech, than we are about the possibility of special interests buying an election? This is a debate which we have largely avoided in the past, but which should now be held.
Many western democracies enforce spending limits on election campaigns. In Canada spending is based on the number of seats a party contests - the Liberals spent $20 million in 2008. In Britain overall spending for each party is currently limited to $30 million in a general election. In Europe, campaigns are financed publicly, requiring considerably less money overall.
In the United States, by contrast, it can take hundreds of millions to mount a credible presidential campaign. And although public financing was introduced in 1976, allowing candidates to qualify for matching government funds so long as they observe certain spending limits, candidates (including Barack Obama in 2008) have increasingly been opting out. This gives them unlimited spending rights.
In 2002 the landmark McCain-Feingold Act (also called the Bipartisan Campaign Reform Act) set limits on the raising and spending of soft money and restricted the airing of issue ads within 60 days of a general election. And corporations, groups and unions were barred from funding such ads - forcing candidates to stand behind their own ads.
The McCain-Feingold restrictions - as light as they were - reflected the same concern about skewing the political debate that is behind the much tougher British campaign laws. But the US Supreme Court threw out limits on issue ads two years ago and in January they approved unlimited campaign spending by corporations, groups and unions as protected free speech.
Supporters of the ruling say that a lot of spending by different people and groups in an election is called a debate, which is precisely what the constitution protects. Opponents argue that freedom of speech is not about the freedom to spend unlimited amounts of money to sway public opinion.
The Bahamas has no campaign finance laws, and there have been periodic complaints about this foreign investor or that big businessman influencing our politicos with large cash contributions. Now that he is out of power, former PLP attorney-general Alfred Sears has called for a bipartisan campaign finance law "to abolish the pervasive practice of secret campaign contributions."
Will it ever happen? Who knows. But one thing is sure - we will soon be in the midst of a wide-ranging public consultation on rules for political broadcasting. All of the issues discussed above must be considered during this debate.