The US Federal Communications Commission places a 30 percent limit on horizontal mergers conducted by multiple cable TV system operators, but since this was implemented in 1993, US federal courts have said that this percentage has not been given any reasonable explanation or evidence, and the issue has still not been settled.
Germany’s Interstate Broadcasting Agreement’s article 26 states that when programs belonging to one company have an average annual viewership rating of 30 percent, then that company will be deemed a dominant influence on opinion instead of prohibiting all media mergers that have the potential to become a dominant influence.
Finally, since the NCC will use viewership, listenership and readership ratings as a standard for regulating mergers between operators, it should first gain a better understanding of the operators in question.
Although article 6 of the draft stipulates that the NCC “may” entrust specialized organizations or academic groups with carrying out rating surveys, article 24 of the draft also authorizes the NCC to first carry out its own assessments.
Article 24 states that before the competent authorities carry out such surveys and release the results, they can estimate the influence a certain media merger could have based on current industry information.
It adds that judicial organizations should respect the decisions of the competent authorities when the concerned authorities, organizations or experts are asked to appraise their estimates and when a decision is made based on them via a hearing procedure.
If the NCC carries out its own assessments on viewership, listenership and readership ratings before others, then uses them as a basis for media regulation decisions, how can the specialized organizations that are later entrusted with carrying out surveys do so in an objective and fair manner? Even if they manage to do this, if the results differ from the NCC’s estimates, the question will remain about which should be taken as the standard.
Since even the judiciary is supposed to “respect the decisions made by the competent authorities,” how can operators who have received unfair decisions in the past expect any form of justice?
Perhaps a better method would be to carry out strict monitoring and reviews of cross-media integration cases that wield a certain amount of market power, while also making such mergers subject to additional clauses.
Prohibiting integration completely should be the last option. This is what the Fair Trade Act (公平交易法) aims to ensure and what the Fair Trade Commission practices.
So far, no cases of irregularities or inadequacies have occurred. So, why should the NCC try and do something different?
Liu Kung-chung is a research fellow at the Institutum Iurisprudentiae of Academia Sinica and a former NCC commissioner.
Translated by Drew Cameron