The concern over the drafting of a broadcasting media monopolization prevention and diversity preservation law, recently announced by the National Communications Commission (NCC), has arisen because many consider the bottom-line standard for prohibiting integration of companies to be excessively lenient and fail to see how the draft could be effectively implemented.
In particular there is the readership rate and the viewership rate, which are, according to the draft, to be calculated as a percentage of the nation’s population of 23 million. This means that the average readership or viewership figures for any given media outlet need to exceed 3.4 million and 4.6 million people, or 15 percent and 20 percent of the population, respectively — as per Article 23 of the draft — before the integration prohibition comes into effect.
It seems that the accusations levied at the NCC — that the draft is toothless and not worth the paper it is printed on — are not without foundation.
Even if the base at which the readership or viewership rates are to be calculated were amended, the serious loopholes that exist in the NCC’s draft would still compromise it. One major omission is that there is no regulation concerning integration between daily newspapers.
The Want Want China Times Group’s bid to buy the Apple Daily would have been permissible according to the integration concept in Article 7 of this NCC draft. However, one problem is that the draft restricts itself to applying only to integration of the broadcast and television media, and does not extend to integration between two daily newspapers.
The NCC has tried to defend this flaw by saying that the integration of any print medium that does not involve broadcast or television media lies beyond its jurisdiction. However, not only does this statement run counter to the organizational responsibilities of the NCC, it also contradicts the stated regulatory remit that the NCC set out in the draft.
Section 3 of the draft deals with the protection of professionalism and independence in the media. Article 29, for example, deals with the correction of errors in reports and Article 30 deals with recourse. These articles are clearly aimed at media that include print media, yet do not require newspapers to comply with the integration requirements.
If print media do not lie within the jurisdiction of the NCC, as laid out in Article 1 of the National Communications Commission Organization Act (國家通訊傳播委員會組織法) where it stipulates that the NCC is to “enforce the Constitution’s protection of freedom of speech” and “protect the media’s professionalism and independence,” why would this draft, which the NCC is responsible for implementing, regulate professionalism and independence in the print media?
It also appears in Article 11 of the draft that the NCC, faced with the contentious issue of newspaper integration — and the public opinion and debate it is creating — sees its role as being limited to giving its opinions on competition within the telecommunications broadcast market and on the balanced development of multiculturalism, leaving the key issues for the Fair Trade Commission (FTC) to deal with.
On the one hand, the NCC’s self-proclaimed remit to “pronounce its opinion” does nothing to fulfill the organization’s two fundamental duties of enforcing the Constitution’s protection of freedom of speech, and professionalism and independence within the media.
On the other, when I asked the FTC, during its review of the Next Media Group acquisition, to look beyond pure economic factors — Article 12 of the Fair Trade Act (公平交易法) states that a merger could be approved “if the overall economic benefit of the merger outweighs the disadvantages resulting from competition restraint” — and consider the impact of media integration upon democratic values and news professionalism in the nation, an FTC spokesperson said that the commission’s position is that “non-economic factors” used to enforce the protection of freedom of speech and the media’s professionalism and independence are beyond its jurisdiction.
These two factors have caused a situation in which neither the NCC nor the FTC seem to be responsible.
The Next Media Group acquisition case, which has created the perfect legislative conditions for expediting regulation to prevent a media monopoly, has become an example of why the NCC draft is useless.
If the FTC, which is to review this acquisition, prevaricates now and refuses to consider media concentration and the news industry’s professionalism and independence, this could be a grievous error that may do irreparable damage to the nation’s democratic values.
Huang Kuo-chang is an associate research professor and director of the Center for Empirical Legal Studies at the Academia Sinica’s Institutum Iurisprudentiae.
Translated by Paul Cooper